KYRIAKOU v POLICE

[2012] SASC 103

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

KYRIAKOU v POLICE

[2012] SASC 103

Judgment of The Honourable Justice White (ex tempore)

21 May 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA

The appellant pleaded guilty to possessing a controlled drug contrary to s 33L(1)(a) of the Controlled Substances Act 1984 (SA) - whether the conduct alleged (possessing the drug Alprax) constituted the offence under the Act with which he was charged.

Held, allowing the appeal and setting aside the orders made by the Magistrate on 1 March 2012 and discharging the bond into which the appellant entered - Alprax has not been prescribed as a controlled drug for the purposes of s 33L(1)(a) and accordingly the appellant's possession of Alprax did not constitute an offence under that provision.

Controlled Substances Act 1984 (SA) s 33L; Criminal Law (Sentencing) Act 1988 (SA) s 39, referred to.

KYRIAKOU v POLICE
[2012] SASC 103

Magistrates Appeal (ex tempore)

1. WHITE J. The appellant pleaded guilty in the Magistrates Court to the offence of possession of a controlled drug contrary to s 33L(1)(a) of the Controlled Substances Act 1984 (SA) (CSA). The prosecution alleged that on 14 November 2011, he had in his possession the drug, Alprax. The Magistrate invoked s 39 of the Criminal Law (Sentencing) Act 1988 (SA) and, after recording a conviction, discharged the appellant upon him entering into a bond to be of good behaviour for a period of 12 months and to comply with certain other conditions.

2. The appellant appealed to this Court contending that the Magistrate had erred by recording a conviction. However, the appellant later amended his notice of appeal so as to appeal against the finding of guilt. He did so on the basis that the conduct which the prosecution alleged did not constitute the offence under s 33L(1)(a) of the CSA with which he was charged.

3. By reason of the definitions contained in the CSA, controlled drugs for the purposes of s33L(1)(a) are those prescribed by regulation. Alprax has not been so prescribed. Accordingly, the appellant’s possession of the Alprax did not constitute an offence under that provision.

4. The respondent concedes the appeal. It accepts that Alprax, the full name of which is Alprazolam, is not prescribed as a controlled drug and therefore that the appellant could not be guilty of the offence with which he was charged. I am satisfied that that concession is appropriate.

5. Although it is unusual for an appeal against conviction to be allowed following a plea of guilty, the appeal in this case should be allowed. The appellant has not committed the offence of which he was found guilty, the conviction was not lawful and in any event the conviction constitutes a miscarriage of justice.

6. The appellant was not represented before the Magistrate. In those circumstances it is understandable that he did not appreciate that he had been inappropriately charged.

7. Accordingly the appeal is allowed and the orders made by the Magistrate on 1 March 2012 are set aside. The bond into which the appellant entered that same day is discharged. I order that the respondent pay the appellant’s costs of and incidental to the appeal which, by agreement, I fix in the sum of $1,189 inclusive of GST.