DAVIES v Bradley
[2008] WASC 186
•22 AUGUST 2008
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.
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