BUCKMAN, Kerry Ann v R [2013] NSWCCA 258

BUCKMAN, Kerry Ann v R [2013] NSWCCA 258

There is no direct inconsistency between s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) and Pt 9.1 of the Criminal Code Act 1995 (Cth), as the Commonwealth legislation (through s 300.4) expressly contemplates concurrent operation, and does not demonstrate an intent to occupy the field. The NSW provision does not criminalise conduct deliberately excluded by the federal law. Accordingly, the State law is not invalid under s 109 of the Constitution.

Jurisdiction
Australia
Judgment Date
12 November 2013
Procedural Posture
Criminal Appeal / Appeal From District Court Decision Prior to Trial, Interlocutory Application Under S 5 F(3)(b) Criminal Appeal Act 1912 (nsw)
Outcome
Appeal dismissed
Legal Topics
['inconsistency Between State and Commonwealth Laws' 'drug Offences' 'concurrent Operation of Laws' 'statutory Construction' 'section 109 Constitution']
['criminal Law' 'constitutional Law'] ['inconsistency Between State and Commonwealth Laws' 'drug Offences' 'concurrent Operation of Laws' 'statutory Construction' 'section 109 Constitution']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal From District Court Decision Prior to Trial, Interlocutory Application Under S 5 F(3)(b) Criminal Appeal Act 1912 (nsw)

Legal Issues

  1. 1 ['Whether s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) is inconsistent with Pt 9.1 of the Criminal Code Act 1995 (Cth) and thus invalid under s 109 of the Constitution' "Whether differences in the definitions of 'supply' and 'trafficking', different penalties, and treatment of gratuitous supply give rise to a constitutional inconsistency" 'Whether s 300.4 of the Criminal Code affects the potential for inconsistency']

Ratio Decidendi

There is no direct inconsistency between s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) and Pt 9.1 of the Criminal Code Act 1995 (Cth), as the Commonwealth legislation (through s 300.4) expressly contemplates concurrent operation, and does not demonstrate an intent to occupy the field. The NSW provision does not criminalise conduct deliberately excluded by the federal law. Accordingly, the State law is not invalid under s 109 of the Constitution.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal is dismissed.']