DAVIES v Bradley

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DAVIES -v- BRADLEY [2008] WASC 186

CORAM: McKECHNIE J

HEARD: 22 AUGUST 2008

DELIVERED : 22 AUGUST 2008

FILE NO/S: SJA 1055 of 2008

BETWEEN: GLYN GEORGE DAVIES
Appellant
AND
JAMES ANTHONY BRADLEY
Respondent

FILE NO/S :SJA 1057 of 2008

BETWEEN :DAVID TRAVIS HALSTEAD
Appellant
AND
LINDA MARGARET QUAIL-SMITH
Respondent

FILE NO/S :SJA 1058 of 2008

BETWEEN :STEPHEN BARRY ALLAN
Appellant
AND
BRETT MARTYN PENGILLY
Respondent

FILE NO/S :SJA 1059 of 2008

BETWEEN :MELISSA TUANG
Appellant
AND
AARON ANTHONY ORZANSKI
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R B LAWRENCE
File No  :RO 7192 of 2006
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R M GLYNN
File No  :AL 949 of 2002
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MR D HARRINGTON JP & MR R GANNAWAY JP
File No  :BS 244 of 2005
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :CHIEF MAGISTRATE S A HEATH
File No  :PE 37490 of 2007

Catchwords:

Criminal law - Drug offences - Diazepam - Not a schedule drug - Pleas of guilty - Convictions quashed

Legislation:

Nil

Result:

Appeals allowed
Convictions quashed

Category: B

Representation:

SJA 1055 of 2008

Counsel:

Appellant: Mr A J Maughan
Respondent: Mr H D Leith

Solicitors:

Appellant: Andrew Maughan & Associates
Respondent: State Solicitor for Western Australia

SJA 1057 of 2008

Counsel:

Appellant: Mr A J Maughan
Respondent: Mr H D Leith

Solicitors:

Appellant: Andrew Maughan & Associates
Respondent: State Solicitor for Western Australia

SJA 1058 of 2008

Counsel:

Appellant: Mr A J Maughan
Respondent: Mr H D Leith

Solicitors:

Appellant: Andrew Maughan & Associates
Respondent: State Solicitor for Western Australia

SJA 1059 of 2008

Counsel:

Appellant: Mr A J Maughan
Respondent: Mr H D Leith

Solicitors:

Appellant: Andrew Maughan & Associates
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Nil

McKECHNIE J: Following the arrest and subsequent withdrawal of charges of possessing a prohibited drug in respect of a prominent Western Australian, police began an examination of their files going back a number of years. As a result, six matters have been identified where persons were convicted, following their pleas of guilty, of possession of a prohibited drug, namely, diazepam.
Each has now sought an extension of time within which to appeal and leave to appeal. I directed that the extensions of time, applications for leave to appeal and appeals be heard together. In each case the respondent has filed submissions conceding the appeals. In each case the prohibited drug was said to be diazepam.
Diazepam is a benzodiazepine derivative and is widely prescribed. It is a drug capable of addiction and misuse. In order to be a prohibited drug under the Misuse of Drugs Act 1981 (WA) the drug must be listed in sch 1 of that Act or in the Poisons Act 1964 (WA), sch 8 and sch 9, or be the subject of an order under the Poisons Act as a specified drug. Diazepam is not listed in any of those schedules or in any order. Accordingly diazepam is not, in Western Australia, a prohibited drug. Notwithstanding the pleas of guilty, the convictions are not legally sustainable because no offence was committed by the appellants. The concession by the respondent is rightly made.
The orders in each case will be that time within which to appeal is extended, leave to appeal is granted, the appeal is allowed, the conviction quashed, and the fines be remitted.

The case of Davies v Bradley involved the appellant, Davies, who had been convicted for drug-related offences, specifically the possession of diazepam, a drug not classified under the scheduled substances. The conviction was challenged on appeal, with the primary argument being that diazepam was not a scheduled drug and thus, the conviction was invalid. The appeal was heard and determined in the High Court of Australia.

The legal issues before the court were centered on the interpretation of the drug legislation and the validity of the conviction. The court had to decide whether the possession of diazepam, a drug not listed in the scheduled substances, could still constitute an offence under the relevant drug laws. Additionally, the court had to consider the implications of the appellant's pleas of guilty in light of the legislative provisions.

In delivering the judgment, the court found that diazepam was not a scheduled drug and therefore, the offence for which the appellant was convicted did not exist under the law as it stood. The court held that the convictions were not supported by the law and quashed the appellant's convictions. The court's reasoning was based on the clear legislative language that specified the substances that are subject to the drug offences, and since diazepam was not included, the convictions were unlawful.

Consequently, the appeals were allowed, and the convictions were quashed. The court ordered that the appellant's convictions be set aside, reflecting the legal principle that a conviction must be supported by the relevant law, and in this instance, the law did not encompass the possession of diazepam as an offence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established