Friday, November 09, 2007

Muscles strong, but unflexed

When the power of a legislature is limited to its territory, an intent to supply drugs outside that territory may not be within the scope of the offence of possession of those drugs for supply. This was the position in Seymour v R (Bermuda) [2007] UKPC 59 (5 November 2007).

The power of the legislature of Bermuda is set out in s 34 of the Bermuda Constitution Order 1968, using the familiar formula “peace, order and good government” of Bermuda. Thus, where the appellant had possession of heroin in Bermuda, intending to take it to Florida for supply to others, that was not an offence of possession for supply under the law of Bermuda. The Privy Council substituted a conviction for possession simpliciter. At trial, the accused had conceded possession, because he had valid legal arguments and they were accepted, and the Privy Council held that it would be unfair to substitute a conviction for preparing to export the drug, because if he had faced that charge he may not have conceded possession.

In New Zealand, the power of the parliament to make laws is set out in s 15(1) of the Constitution Act 1986: “The Parliament of New Zealand continues to have full power to make laws.” This “full power” departs from the “peace, order and good government” formulation, and is not expressly limited to New Zealand territory. There is a common law presumption against extra-territorial effect, but express provision in a statute will of course displace that. Such a provision is s 12C of the Misuse of Drugs Act 1975:

“(1)Subject to subsection (2), every person commits an offence against this Act who, outside New Zealand, does or omits to do any act that would, if done or omitted in New Zealand, constitute an offence against—
(a)Section 6 …
(2)No proceedings for an offence against subsection (1) may be brought unless—
(a)The person to be charged is a New Zealand citizen; or
(b)The person to be charged is present in New Zealand.
(4)Subsection (1) does not apply if the doing or omission of the act to which the charge relates was not an offence under the law of the place where the act was done or omitted.”

So, if the facts of Seymour occurred here, the intention to supply the drug to someone outside New Zealand would be an intention to commit an offence outside New Zealand (assuming, of course, that supply of the drug was an offence in the foreign jurisdiction), but would that intention be an intention to “supply” in terms of s 6(1)(f)? That provision makes it an offence as follows:

“(1) Except as provided in section 8 of this Act, or pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall— …
(c) Supply or administer, or offer to supply or administer, any Class A controlled drug or Class B controlled drug to any other person, or otherwise deal in any such controlled drug; or
(d) Supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; or
(e) Sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age; or
(f) Have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d), or (e) of this subsection.”

Notably, s 6(1)(f) does not include the purposes in s 12C, ie the purpose of committing the offence of supply outside New Zealand. Parliament could have included that, had it wished.

So, it seems that, notwithstanding the assumption of extraterritorial powers, the New Zealand legislature has not made provision for circumstances like those in Seymour.

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