Police v Hogue
[2013] QMC 10
•8 May 2013
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Hogue [2013] QMC 10
PARTIES:
POLICE
(prosecution)
v
AIDAN DAVID JOHN HOGUE
(defendant)
FILE NO/S:
MAG209116/12(0)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Mount Isa
DELIVERED ON:
8 May 2013
DELIVERED AT:
Mount Isa
HEARING DATE:
5 March 2013, 14 March 2013
MAGISTRATE:
Madsen RJ
ORDER:
Defendant found guilty as charged.
CATCHWORDS:
CRIMINAL LAW- DRUG OFFENCES – definition of Dangerous Drug – whether a synthetic drug is a Dangerous Drug – definition of “substantially similar chemical structure” and “substantially similar pharmacological effect”
Drugs Misuse Act 1986, s 4
COUNSEL:
Cooper VR (sergeant) for prosecution
Salehakon R for defendant
SOLICITORS:
Prosecution on own behalf
Apex Law for defendant
This decision has been prepared whilst the evidence is fresh in my mind. I have prepared a decision with reference to a transcript.
I have considered all the evidence. In making my finding I will refer to only some of the evidence. The evidence I have not referred to has been considered.
Aidan Hogue was charged that on 12 August 2012 that Mt Isa in the state of Queensland he unlawfully had possession of a dangerous drug.
That drug was said to be 5-Fluoro JWH-122 or what I will describe as the substance.[1]
[1] more particularly described in the certificate of analysis dated 12 September 2012 -Exhibit 7
There was no dispute about the date time and place of the alleged offence[2].
[2] transcript at page 19
It was eventually conceded that Mr Hogue had possession of a substance[3].
[3] discussion in respect of this issue appears on the transcript at page 19 line13
It was alleged that the substance was a substance which by section 4 of the Drugs Misuse Act 1986 is a dangerous drug[4].
[4] Particulars dated 14 March 2013.
A number of formal objections were taken to the charge, to the particulars, to the certificate of analysis.
It was said that the substance was not a dangerous drug as defined.
It was also said that on the evidence Aidan Hogue had an honest and reasonable but mistaken belief as to fact - which in effect, was that the substance that he had in his possession was not unlawful drug.
Particulars
An objection was taken at the outset to the format of the particulars. I declined to allow the objection and gave brief reasons at that time. Relevantly Aidan Hogue had previously pleaded not guilty to the charges on 4 December 2012 in the presence of his solicitor and at that time the certificate of analysis had been emailed to his solicitor. The amended or substituted charge that he pleaded not guilty to on the morning of the hearing was in all but one respect, the same as that charge which was pleaded guilty to on 4 December 2012. The difference was in respect of the description of the dangerous drug which was amended to reflect that which was described in the certificate of analysis. It was further said, that the defect in the charge applied to the description of the offence being an offence involving section 9 and that there was consequently a defect in that charge because of its failure to refer to any specific subsection[5].
[5] Transcript at page 129.
The Justices Act 1886 in section 47 provides that the description of any offence in the words of the act… Or other instrument creating the offence, or in similar words, shall be sufficient in law. “It is enough if the words in the charge sheet are sufficient to embody the elements of the offence which is created by the statute[6].” The complaint or charge should be such that, if taken as a whole, informs the defendant of that which he or she is charged.[7]The Justices Act does allow an amendment of a charge.[8] Particulars have an important function, notably to ensure that a defendant is fully and fairly informed of the case that he is to meet.[9] It is clear that the defendant understood the nature of the case that he was to meet. His lawyer provided a bundle of documents and submissions at the commencement of the hearing, which had comprehensively addressed most of, if not all of, the submissions that he wished to make, not only about the particulars but about the substance of the proceedings which seemed to relate to a definition of the substance as referred to in the Drugs Misuse Act. One week prior to the hearing an application was made for Further and Better Disclosure. The defendant also had a copy of the brief, and to the extent that there was a late disclosure the defendant’s Counsel and was aware of that, and indicated to the court a willingness to proceed one week prior, not standing the late disclosure of a witness statement[10]. It seemed fairly clear to me that the particulars did not embarrass the defendant. It is also fairly clear, that in terms of section 9 and the various subsections that are referred to therein, the paramount consideration both in civil and criminal cases is that particulars will be ordered to avoid injustice being done[11]. In this particular case there is no injustice and the charge was not defective in my assessment, as the description of the offence adopting the words of the act was sufficient in law.
[6]R v Holloway Prison (1916) 85 LJKB 689@690
[7] Summary Offences Law and Practice Queensland paragraph 1.1770
[8] Section 48 of the Justices Act 1886
[9]Dare v Pulham [1982] HCA 70
[10] An ill-fated directions application was made by the defendant one week prior -during which the prosecution intent to amend the charge was canvassed as was the state of the prosecution evidence which was to include a supplementary witness statement.
[11]R. v Saffron [1988]17 NSWLR 395
The Charge
“A person who has possession of a dangerous drug is guilty of a crime”[12]. The maximum penalty varies depending upon which provision of section 9 the dangerous drug is categorised. Dangerous drug means amongst other things, a thing that has a chemical structure that is substantially similar to the chemical structure of the thing referred to in paragraph (a) or (b) and that has a substantially similar pharmacological effect[13]. The drugs misuse regulation 1987 in schedule 2 contains a number of drugs which includes 1– (5 – fluoropentyl)-3-(1 – napthoyl)) (AM – 2201) and 1 Pentyl-3-(4-methyl-1-napthoyl) indole) JW-H122.
[12] Section 9 Drugs Misuse Act 1986
[13]Drugs Misuse Act 1986 Section 4 definitions
It was alleged that 5-Fluoro JW-H122 has a chemical structure that is substantially similar to the chemical structure of both those compounds[14].
[14] witness statement Robert John Muller paragraph 10
5-Fluoro JW-H122 is described in the certificate of analysis.
Whilst a number of things have been raised the substantive dispute concerns whether the substance found in the possession of Mr Hogue had substantially similar chemical structure and substantially similar pharmacological effect.
A number of authorities were referred to me in relation to how I should approach the definition referred to and the evidence that I heard.
The expression “substantially similar” was considered in the Administrative Appeals Tribunal. It was found to mean “having a considerable amount of likeness or resemblance, especially in a general way”.[15] In that decision the Tribunal referred to the Macquarie Dictionary which defined “substantial” as “of ample or considerable amount” and “similar” as “having likeness or resemblance, especially in a general way”.
[15] Re-Magee and Australian Trade Commission (1994 ) 36 ALD 304 (full tribunal ); see also RMT Holdings and Australian Trade Commission (1992) 29 ALD 264-which considered a different practical application of the provision referred to in each of those cases
It was suggested that the construction of the legislation should be in the favour of the defendant[16].
[16] See the transcript at page 142.
The Court of Appeal recently considered decisions concerning the construction of penal provisions:
“The effect of the relevant statements in those decisions is that penal provisions should not be given a wider scope than their language permits, that language which is capable of more than one meaning so that “no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation ought not be construed as extending any penal category”, and that caution should be adopted in accepting “any loose, albeit practical” construction of a penal provision. That does not require the adoption of an unduly narrow construction; a lenient construction of a penal provision is required only where there is any real ambiguity persisting after the application of the ordinary rules of construction[17].”
[17]Moman v. Middleton [2013] QCA 53 @page 3
“The relevant rule of construction is the fundamental one that the task is to construe the statutory text in its context….
‘The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v. Australian Broadcasting Authority, “the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is,” statutory construction requires deciding what is the legal meaning of a relevant provision by reference to the language of the instrument viewed as a whole, and the context, the general purpose and policy of provision and its consistency and fairness are surer guides to its meaning than the logic which it is constructed.’”[18]
[18] Ibid;refering to Certain Lloyds Underwriters Subscribing to Contract No IH00AAQS v. Cross [2012]HCA 56
The explanatory notes[19] referred to the then current definition of a dangerous drug and highlighted the fact that the existing definition did not capture chemicals where the molecular structure of existing illicit drugs is altered slightly to create so-called designer drugs. The definition of a dangerous drug in section 4 of the Drugs Misuse Act will be amended to capture drugs not presently listed but which are structurally similar and have a similar pharmacological effect to drugs listed in the drugs misuse regulation. It is further said that the purpose of the amendment is to target underground chemists who make slight changes to the molecular structure of existing illicit drugs to create new drugs not covered by the law.[20]
[19]Drugs Misuse Amendment Bill 2007 explanatory notes page1
[20]D rugs Misuse Amendment Bill 2007 explanatory notes page 5
In this context the natural meaning of the expression “substantially similar” has a meaning of having a likeness or resemblance, especially in a general way.”
The Evidence
To save time the statements of witnesses were tended and the witnesses were cross-examined.
Plain Clothes Constable Joe Coates gave evidence.[21] His evidence and his cross-examination related in effect to conversations with the defendant, and his knowledge of the sale of herbal products at outlets in Mt Isa.
[21] his statement was Exhibit 8
In cross-examination he was asked about a Camooweal Street tobacco shop, that sold a product called “’Hellfire’ 100% organic pot pouri” that apparently has a display counter on which that product is displayed. Although he had not been often he could not recall seeing it. He was asked about conversations with Mr Hogue in which Mr Hogue upon his arrest said he had herbal stuff and that Mr Hogue had been given the substance by a friend, and that the friend had brought it from the shop in Camooweal Street. In relation to the former, he agreed it could have been said but he was not totally sure, and in relation to the latter, his response was that he very well may have said that[22].
[22] transcript at page 84
In my observation having considered the demeanour of Plain Clothes Constable Coates and having listened to his measured tone of voice he was a truthful and believable witness. He did not agree with everything put to him, however I don’t think much turns on this. Where there is a difference between Plain Clothes Constable Coates’ evidence and the defendant’s evidence I prefer the Police Officers’ evidence in that respect.
Constable Daniel Salt was present when the defendant was arrested in relation to outstanding warrants. He conducted a pat down search and located a green leafy material in the defendant’s front left jean pocket.[23] His evidence was fairly unremarkable. He had limited recollection of most things.
[23] his statement was Exhibit 6
Can I say in respect of the expert testimony called on behalf of prosecutions that I will briefly consider this evidence and spend more time with the evidence of Dr Robertson who was called by the defence.
Robert Muller was a senior chemist, holds a Bachelor of Applied Science[24], is a duly appointed analyst for the purposes of the Drugs Misuse Act and had been employed in that capacity for many years.[25]
[24] his statement was also exhibited
[25] transcript at page 27
He says by effect that 5-Fluoro JW-H122 was detected in a sample of the drug seized from Mr Hogue[26]. His evidence was that in effect that 5-Fluoro JW-H122 had a chemical structure that is substantially similar to the chemical structure of two compounds listed in schedule 2 of the drugs misuse regulation[27]. He explained in his evidence in chief the process that he used to reach that conclusion[28]. He expressed that the structures are “which is only an estimate really 98% similar. Like 98% of the structure of each one is identical. The only difference is the atom or a group here and there has been taken away.”[29] The substance he said was not naturally occurring.[30] When asked if the plant material got contaminated with this chemical he said from what his opinions were if it did get contaminated it was done deliberately, although he said it was possible it could occur as result of a contaminated container. He was asked to consider the report of Dr Griffith and explained that if a certain compound comes out at a certain time and gives a certain fragmentation pattern, chances are for other compounds will all come out at 400 different times and give 400 different fragmentation patterns so you pick 5-Fluoro JWH-122 is identified on the basis of its time and fragmentation pattern is different to the fragmentation pattern and time of all the other compounds. He explained in relation to similar compounds that you get different retention times[31].
[26] his statement paragraphs 5 to 7 inclusive
[27] see his statement paragraphs 9 to 12 inclusive
[28] transcript at page 28 – 30
[29] transcript at page 29 at line 60
[30] transcript page 37
[31] page 39 of the transcript at line 20
He expressed his level of confidence in respect of the detection of the chemical substance to be as close to 100% as you can get. [32]He was confident that the equipment that he was using was working properly.[33]
[32] transcript page 43
[33] page 43 of the transcript
Considering the tone of his voice, physical movements, general integrity and intelligence I formed an assessment that Mr Muller was a credible and honest witness. He was perhaps less restrained than Jennifer McGowan -he was clearly experienced in what he was doing, and I can confidently accept that the processes he used to determine the structural similarity of the compound found as derived from the sample in the possession of Mr Hogue were conducted properly, efficiently and with a large degree of certainty and familiarity.
Jennifer McGowan is a supervising chemist, holds a Bachelor of Science degree, is a duly appointed as an analyst under the Drugs Misuse Act[34] and has held this position for many years.[35] Her evidence is similar to Mr Muller’s evidence. Somewhat useful in diagrammatic form she explains how the 5-Fluoro JWH-122 had a chemical structure that is substantially similar to the chemical structure of both compounds described by Mr Muller to have appeared in schedule 2 of the Drugs Misuse Regulation[36]. She also explains how the chemical structure of AM - 2201 differs by the addition of a methyl group and JWH-122 by the addition of a fluoro group.[37]
[34] see her statement page 1 para 1-4 inclusive, which is Exhibit 3
[35] transcript at page 68
[36] see paragraphs 10 to 14 of her statement inclusive
[37] see paragraphs 15 and 16 of her statement inclusive
In the evidence she explained how usually the chemical substance is applied -effectively by spraying the substance onto what might be described as the host -that is the green leafy material[38]. It was suggested and she agreed that it was quite possible that this chemical substance could have come from an interaction between the green leafy material and whatever container the substance was placed in. It is my assessment of that evidence that this is highly unlikely, and that reasonable subsamples were taken to analyse the substance.[39] She explained that the type of plant material analysed was not typically a place where you would find crystalline substances. Her department was not currently resourced to perform purity testing on the compounds listed in schedule 2, and by inference, let alone variations to those found within the schedule.
[38] transcript at page 76
[39] see the transcript page 75
Her opinion was that the chemical structure of the substance seized from Mr Hogue was substantially similar and she explained that process of reasoning.[40]
[40] transcript page 68
In assessing this evidence I have taken into account the general demeanour of this witness. I found that she was articulate and was able to concisely express her evidence. Her tone of voice was firm and clear she was sincere and confident about her subject matter. I do accept the evidence of this witness and the conclusion reached by her in respect of the similarity of the substance. I will address what Dr Robertson has to say separately.
Leslie John Griffiths is an accredited part-time forensic medical officer. He holds the Degree of Master of Forensic Medicine, is a fellow of the Australian College of Legal Medicine, and is a qualified pharmaceutical chemist. He has given evidence at all levels within the Queensland court system in respect of matters that involved forensic medicine.[41] There was a significant challenge made to his qualifications -it seems to establish that he is not an expert. I think it can be readily agreed that his curriculum vitae is certainly not as extensive as that of the defendant’s expert Dr Robertson however I was nonetheless persuaded that in terms of the opinion that he was able to express, that he was able to do so as a qualified expert.
[41] see his statement which is Exhibit 5
Dr Griffiths also explained what he believed was the general effect of the synthetic cannabinoids in a general way.[42]
[42] see the transcript page 62
An analogy he provided in respect of the pharmacological effect of the drugs and their similarity he used the analogy of the key in a lock and he said that he thinks those drugs actually fit in the lock in the brain are these receptors. The fact that it fits the lock and produces an effect that is why he means it has a pharmacological effect that is similar.[43]
[43] transcript at page 62
I won’t repeat all of what was helpfully explained in his evidence at page 48 of the transcript but I accept the explanation given, as it would appear did Dr Robertson. He said that the chemist making the synthetic drugs are doing something like by way of analogy “if you have a lock and you want to get a key for that, you can get a mould made of the lock and the key maker can actually make a key that fits the lock and that’s what the chemists are doing.”
He also described some of the effects of the synthetic substances and his explanation was that the effects are more potent.[44]
[44] transcript page 49
He concludes that the substance identified in the certificate of analysis was a substance which was structurally and pharmacological similar to the two items that appeared in schedule 2 and that he was of the view that both of these agents had effects which are similar to those of the naturally occurring tetrahydrocannabinol derived from the plant cannabis[45].
[45] see his statement which is Exhibit 5
He conceded that to say there are over 400 analogued products and sharing the same chemical structure was a very general statement.[46]
[46] transcript at page 57
He explained the lack of scientific studies that were available about the pharmacological activity of synthetic cannabinoids. He was able to bring additional information to court with him but he was not asked about that.
He explained the pharmacological effect not in the literal sense but in the way he described how the drugs worked.[47]
[47] transcript at page 60
In his evidence and in his statement he described a number of the effects or conditions observed in respect of individuals who present to hospital after having consumed synthetic cannabinoids. He also referred to so-called drug forums in which the experience of users was described to include extreme palpitations, panic states and utter confusion. He expresses the opinion that “synthetic agents are much more potent than the natural cannabinoids and that small doses of the synthetic drug can and often do produce unintended and unwanted responses in the user”.
He explained that he was able to express his evidence and the opinions that he reached because of his study in forensic medicine by the nature of his training and experience, his medical qualifications and his pharmacy qualifications.
It was said by Dr Robertson that Dr Griffiths was a generalist in his work experience and that this may have affected the way he gave evidence or the type of evidence that he provided. Notwithstanding the apparent and obvious differences in experience or qualifications between he and Dr Robertson, not and notwithstanding some legitimate comments made by Dr Robertson in respect of parts of Dr Griffiths evidence I accept his evidence. He was frank, helpful, clear and forthright. He clearly expressed his subject matter, he made concessions where appropriate and was, in my view, genuinely assisting the court in his evidence. I was, having heard the tone of voice, having observed his physical movements and having considered the way in which he gave his evidence, impressed with him. Whilst I could understand the necessary process that was embarked upon by the defence in respect of his qualifications, I thought some of what was said to him was unfair to him, but he handled it quite well.
Dr Robertson made a report[48] and gave evidence. He was an expert with an impressive pedigree.
[48] Defence Exhibit one
He:
1. Said he remained to be convinced to the level of certainty Mr Muller stated[49];
[49] page 93 line 30
2. Agreed with Mr Muller’s statements about the gas chromatography and mass spectroscopy methods used and the signature time and retention timed statements;[50]
[50] page 93 line 40
3. Agreed with what was said about the fragmentation patterns;[51]
[51] transcript page 95 at line 20
4. Suggested that new methods of testing would provide more certainty and are more accepted[52], however he did not want to suggest the compound was not detected[53];
[52] transcript page 94
[53] transcript page 94, and at page 97-line 30
5. Preferred a different standard for identification that in his experience had been used at the laboratory and that he would have expected that Mr Muller would have expected to have been familiar with this or indeed Dr Griffiths[54];
[54] transcript at page 97 line 30 and page 98 line 10
6. Agreed with Dr Griffiths evidence about the use of synthetic compounds and their manufacture [55]and described how it was hoped synthetic compounds might leverage the medical features of cannabis and minimise the recreational effects;
[55] transcript page 95 line 30
7. Said there were hundreds of these drugs and they fall into different classes, within a class there are some similarities but between classes they are structurally different[56].
[56] transcript page 96 line 30 onwards
8. Was of the view that assuming the compound is what is said in the certificate that much of what was said by Mr Muller and Ms McGowan was correct;
9. Would prefer to have seen the test data to express the degree of certainty that the chemical was detected[57];
[57] transcript page 98 and at page 104 line 50
10. Agreed that the items seized from Mr Hogue was a herbal plant matter and agreed with earlier testimony that no other crystals or contaminants were present[58];
[58] page 98 of the transcript line 30
11. Understood that the purity of the compound is not measured because it is not a schedule 3 drug but it could be determined if need be;[59]
[59] page 98 line 50
12. Had no issues with Miss McGowan’s statement other than with respect to the degree of certainty referred to;
13. Had a primary criticism of Dr Griffiths report which was its generalist approach[60] and the other nominated deficiencies referred to in his statement;
[60] Transcript at page 100 and also see his report
14. Said with respect to the pharmacological effect fairly described the complexities of pharmacology and there are in his assessment quite dissimilar effects[61];
[61] page 101 line 40
15. Agreed that JWH–122 and AM-2201 are structurally similar to 5-Fluoro JWH-122; and said in the absence of knowing how they act pharmacologically we can’t infer they are pharmacologically similar. He said that Dr Griffiths is ‘too general in this respect[62]’ he preferred to dig beneath the surface to determine the pharmacology;
16. Was able to comprehensively describe many effects[63] and was able to agree with me that the effects could be different for different people even though it might be the same substance;
17. Referred to the absence of clinical evidence to conclude there is no evidence to point to similarity or for that matter differences.[64]
[62] page 101 – 102 transcript at line 32
[63] transcript at page 105
[64] transcript at page 104 line 1 to 30, page 105 line 26
When cross-examined Dr Robertson agreed you could not see the THC in cannabis[65]. Dr Robertson agreed that in a recreational drug sense the herbal substances are deliberately tainted.[66] He accepted that it was possible that the substance similar in structure would have a substantially similar pharmacological effect.[67] In making the point that effects can be different he also said “broad brush stroke” does it interact with cannabinoid receptor, possibly, we don’t know ,possibly, and because it’s structurally similar is likely but we don’t know[68]. In this respect he was clearly referring to the scientific community.[69] He did when discussing the effect of the compound agree that its effect could be widespread enough that is a range of outcomes for different people could be substantially similar because of that very reason.
[65] transcript page 109 at line 30
[66] transcript at page 109 at line 40
[67] transcript at page 110 line 33
[68] transcript page 110 at line 53
[69] transcript page 112 at line 6
Dr Robertson accepted that Dr Griffiths was a generalist who because of his experience may not have shared the level of understanding that he did.[70] This is I think a fair comment, however this criticism doesn’t detract from what Dr Griffiths concluded. As I believe the evidence of Dr Robinson does support the conclusion reached but only to a point. That is how much scientific certainty is required.
[70] transcript page 112
It does appear to me that although his concerns were legitimate and that in a scientific forum his evidence or views would have been more persuasive it is not my view that the ordinary meaning of the words used within section 4 of the Drugs Misuse Act requires the level of certainty he refers to. Notwithstanding his concerns or criticisms of the evidence from the prosecutions witnesses in relation to the structural similarity and pharmacological effect it is my view that his evidence does support the evidence called by the prosecutor.
It also would appear that whilst critical of what else could have been done to test the substance he conceded that he did not have the actual data that was interpreted. In that respect I think he would defer to Mr Muller in respect of Mr Muller’s observations of the fragmentation patterns and to the process used.[71] He would simply have preferred more certainty and more things done to achieve that level of certainty.
[71] page 116 of the transcript at line 30
It might also be why he assumes the outcomes achieved in some respects when making comment because he could find no actual fault with what was actually done or who did it as he did not have access to the test data or did not observe the testing.
Dr Robertson gave helpful and cogent evidence. I did observe his demeanour and his manner of talking and tone of talking and believed that he was a truthful witness and was within his area of expertise helpful to the court. He made generous concessions to prosecution witnesses whom he had seen give evidence and whom he had written a report in relation to before they gave evidence. It would appear that in part at least some of what he said allowed the witnesses to clarify expressions or abbreviations or errors within their statements with little criticism.
His evidence is that the substance identified is a dangerous drug because it was in a general way of the same pharmacological effect, but also with a 60 to 70% degree[72] of certainty chemically similar to the drugs identified by Mr Muller and Miss McGowan in their evidence. He concludes his evidence in cross-examination by saying “I don’t really know what substantially similar means, but the fact is we just don’t know if they’re substantially similar or similar because the studies haven’t been performed. “It does not require one in my assessment to dig beneath the surface as one might if one were to say at a pharmacological convention, or prefer perhaps if one was advising minister about the inclusion of a substance on the schedule. The intent of the legislature is clear when it uses the particular words. Dr Robertson using the expressions “we” I think reinforces the view when he says “we might qualify what we mean by being similar.” However that is not what was required or is required. I think the broad-brush approach the doctor was concerned about is not a matter of concern in these proceedings on the evidence that was before me and it seems subject to whatever one wishes to say about the burden of proof that the broadbrush approach is what was intended by the legislation.
[72] transcript page 115
Section 134A Drugs Misuse Act
It was said that the relevance of this provision is that the dangerous drug should be listed in the schedule if a person is to be charged with possession of a dangerous drug.[73] The suggestion was also that on the described evidence of Doctor Robertson as the pharmacological effect was unknown the JWH–122 was not listed in the schedule for the reason that it failed to meet the ‘experts ‘requirements that the Minister was required to consider[74] .
[73] Transcript page 137
[74] Transcript page 138
The explanatory notes address the intent of the Parliament in respect of this provision in which it says the criteria are intended to provide guidance and ensure consistency in considering the addition or reclassification of a substance[75].
[75] Drugs Misuse Amendment Bill 2007 explanatory notes page 7
For that reason I do not accept the suggestion that the provision has the effect of limiting the approach to the interpretation of the expressions “substantially similar” to a narrow or restricted basis. The mandatory considerations of the minister relate to the inclusion of a drug in a relevant schedule and that there be some transparent process in relation to the inclusion or reclassification of a drug.
It is fairly clear that the expansive definition in section 4 allows a substance to be an illegal substance notwithstanding it is not on the schedule. It may well be the case that this is a reflection of the need of the Government to the make illegal the ‘designer’ drugs, whilst the necessary processes associated with section 134A and the considerations referred to continue so that from time to time the schedules are ‘updated’. To say that the position is as the defence has said, would defeat the ordinary meaning of the words used in section 4, and I believe would effectively defeat not only the intent as expressed in the explanatory notes, but also render section 4 functus officio, or put another way, pointless.
The certificate
One of the issues raised was the omission of the precise quantity of the chemical substance which is it was said Mr Hogue was in the possession of.
The certificate describes the compounds identified, it says JWH–122 was detected, another compound was indicated and the substance had a weight of 2.2 g.[76]
[76] The certificate of analysis was Exhibit 7
I was referred to the High Court[77] where it was said in 1978 ”that where The Health Act 1937 (Qld) creates the offence of having possession of a dangerous drug or prohibited plant, without adverting to the quantity, it contemplates possession, not of a minute quantity and capable of discernment by the naked eye and detectable only by scientific means, but a possession of such a quantity as makes it reasonable to say as a matter of common sense and reality that it is that prohibited plant or drug of which the person is presently in possession”.
[77]Williams V. R (1978) 140 CLR 591@600
I was referred to in submissions by the defendant’s counsel to a number of decisions that followed Williams. Those decisions are conveniently referred to in a decision of His Honour Judge Robertson.[78]
[78]Loweke v. Queensland Police Service [2005] QDC 187
In that decision from paragraph 21 to 27 inclusive considered relevant case law that followed William’s case. In that case there was 200 mg of clear fluid in which methyl amphetamine was detected. In this case there was 2.2 g of green leafy material in which JWH-122 was detected. Perhaps unsurprisingly the defence were of the view that His Honour’s decision and observations clearly apply to Mr Hogue. That the detection of the chemical of itself is insufficient and this effectively means there is no evidence of there being a dangerous drug in Mr Hogue’s possession or, the quantity involved was so minute that he could not have known that it was in his possession, or, there was no evidence as to how the chemical found its way onto the green leafy material, or as a matter of common sense and practicality he was not legally in possession of the substance.
Judge Robertson says:
“In my opinion the decisions referred to above, based on Williams, do require the prosecution, in order to succeed, to provide some evidence of the actual quantity of the dangerous drug, so as to get over the common sense and reality test espoused in Williams. To permit the prosecution to rely on a simple statement that a dangerous drug was detected in what was, in any event, a very small quantity of host liquid is, in my opinion, to resort to speculation that whatever the quantity, it must necessarily, as a matter of common sense and reality, be the drug of which the person was actually in possession[79].”
[79] paragraph 30 of the judgement
In respect of the weight, Dr Robertson did say that the purity or weight is necessary to determine the pharmacological effect to work out whether it is an amount that could be used recreationally or would have no effect upon the user.[80] It might be said however that potency does not affect the legality of the substance and found in the possession of Mr Hogue in this instance. It may be relevant to whether or not a substance goes on to a different schedule.
[80] see the transcript at page 113 line 20
There may be some similarity between a synthetic cannabis and methamphetamine in that they are both produced artificially and do not occur naturally. There was ample evidence before me that the JWH-122 was not discernible to the naked eye. The reality is however based upon the evidence of Dr Griffith, Dr Robertson and Jennifer McGowan that the manufacture of many chemical substances does occur where the substances are substantially similar in effect and molecular structure to those which already appear in the relevant schedule. From what I was told of this practice on the evidence it would be reasonable to conclude that this practice was not widely known at the time His Honour Judge Robertson delivered his decision in relation to methyl amphetamine in a liquid. In terms of a common sense approach, the evidence of Dr Robertson was clearly the case that the JWH-122 substance was similar to THC commonly found in cannabis. And practically speaking it is not the practice of the forensic laboratory to weigh the chemical which induces the cananaboid effect, and it is rarely the case that in terms of certificates issued in respect of cannabis that the weight of the THC is measured. In a commonsense and practical way one must also consider the evidence of Aiden Hogue that he was given the substance to smoke for effect by a friend in that quantity in that bag which appears in the photograph, and that he did in fact smoke some of the substance at an earlier time, and had retained the substance in his possession.
The test that I apply that “the prosecution must prove that there was possession of such a quantity as makes it reasonable to say as a matter of common sense and reality that it is the prohibited plant or drug of which the person is presently in possession.[81]”
[81] Donnelly v. Rose [1995] 1 Qd148 at 149
The weight of the substance referred to in the certificate is described as approximately 2.2 g. It was accepted that this was not the weight of the compound identified in the substance[82]. It was also accepted that there was the capacity, although it was not the prevailing practice, for the Forensic and Scientific Services to weigh the compound.[83]
[82] see the transcript at page
[83] see the transcript at page
The Drugs Misuse Act provides that in any relevant proceedings the certificate shall be evidence of any of the following stated in the certificate:
1. the identity of the thing analysed or examined;
2. the quantity of the thing;
3. the result of the analysis or examinations and of the matters relevant to the proceedings;
and in the absence of evidence to the contrary shall be conclusive such evidence[84].
[84] Section 128 Drugs Misuse Act
The certificate is conclusive evidence that the thing analysed was a substance that weighed 2.2g and that it contained JWH–122. The degree of ambiguity that was commented upon in Walker v. Dyer[85] is not found in this case.
[85] [1992} QCA 286 – defendant’s bundle of documents number 7
I conclude on the evidence referred of Doctor Robertson, and Doctor Griffiths and that of Aiden Hogue and the aforesaid certificate I find that the quantity of green leafy material referred to in the certificate is as a matter of common sense and reality a dangerous drug.
Section 129(1)(b) Drugs Misuse Act
There are a number of evidentiary provisions contained within section 129.
In relation to section 129(1)(b) Mr Hogue shall be liable to be convicted as charged notwithstanding that the identity of the dangerous drug to which the charge relates is not proved to the satisfaction of the court that hears the charge if the court is satisfied that the thing to which the charge relates was at the material time a dangerous drug.
I have found that the thing which the charge relates to was at the material time a dangerous drug so this assumption doesn’t necessarily arise.
Mistake of fact[86]
[86] Criminal Code Section 24
The operation of the Criminal Code, section 24 is excluded unless that person shows an honest and reasonable belief in the existence of any state of things material to the charge and the burden is on Mr Hogue.[87]
[87] Section 129(1)(4) Drugs Misuse Act
As a corollary but also on the available evidence the issue that arose was whether Mr Hogue had an honest and reasonable but mistaken belief that the substance he had in his possession was a lawful substance.
I remind myself of the directions given in relation to this defence as provided for in the District Court Bench Book.[88]
[88] District Court Bench Book
Relevantly this issue should be considered objectively to determine whether or not the belief was reasonable.[89] The mistaken belief held by Mr Hogue must be in the relevant state of things and the belief must be positively held, in a subjective sense.[90]
[89]Daniels [1990] 2 WAR435@445
[90] Mere inadvertence will not suffice. Larson v. GJ Coles and Co-Ltd (1984)13 A Crim R 109
Mr Hague gave evidence that the substance was in his possession.[91] “They asked me if I had anything on me and I just told them yeah, a bag of herbal and a lighter”. His response to the question what was the police response ’they said, is that all, nothing you shouldn’t have?” When asked did they say anything :” Nah, they didn’t – didn’t say – didn’t say anything, hey?”….. “They said – he said – he said, what is it? And I said herbal and Coates said what do you mean by herbal and I said, oh, it’s just that herbal-the herbal smoke, and he says oh you righto.”
[91] see the transcript at page 120
He was asked did you tell them where did you got it from; ‘yeah, from a friend. I got it off a friend, handed it over to me. He got it from the shop in Mt Isa and – and is just said that he, you know, they thought that it was all right, here, try this, so they give me a little bit of it and, yeah”.
Senior Constable Coates subsequently spoke with him about charging him about four weeks later. At that time he had a conversation with the police officer during which he was told that he was going to be charged with possession. “Possession of what? And he said, oh, that was Coates, he said, you know that – you know that – that herbal stuff you had, I said, I was just being funny with him.(My emphasis.).., I said, what – what herbal stuff? And he said, oh, come on. And I said, yeah, yeah, I know, the herbal stuff (My emphasis). He said you, yeah while we sent it away, it’s been tested as – it’s come back that it’s synthetic[92].”
[92] transcript page 121
He was asked what his reaction to this was after being charged “oh, I thought it was funny about it being that it, you know, it’s retailed in Mt Isa, not just to one shop but three and”… And these are named as being “The Tobacco Station, The Colonial Supermarket and West Confederate Tattoo “I’m not sure if they are all the same product or what.”
What may not be clear from what followed was a discussion about a commercial package that the defence had attempted to tender. The package as I understand it was an empty packet which was for an herbal products that is generally for sale at Mt Isa.
The defendant was then taken to Exhibit 2 and he explained that what he received from his friend was in the exact form that it appeared in the photograph.” Exactly – exactly how it is like that. Which it’s not a Western Confederate product, it’s not from there.”[93]….. He continued “I do know that it was bought from a retailer but I couldn’t say which one.”
[93] transcript at page 124
After having previously acknowledged that:
1. what was in the packaging;
2. that he was able to say was not a Western Confederate product;
3. by inference presumably not Hellfire
4. was not fit for human consumption[94];
5. he consumed it.
[94] transcript at page 123
He said that he smoked it - and he said he didn’t see what the big deal was about it.[95]
[95] transcript page 124
When asked what effect it had on him he said he didn’t have any effect from it…. “Not that I noticed,”[96] and that as far as he was concerned he had in his possession a bag of organic herb, and that he relied on what his friend said, and his friend said that this is herbal stuff and they bought it from a shop. ”yeah”.
[96] transcript page 125
In cross-examination when he was reminded that he smoked the drug for effect he said “I smoked it to try. The boy said – the lad that gave it to me and said that, you know, that’s what they do it – did with it and it gives you some high or whatever, and yes, I tried it, see what the….”[97]
[97] transcript page 125
It was suggested that this would indicate to him that the plant material he received had something else added to it and his response was “no not exactly”. When he was asked does tobacco get you high he said” if I’m told that it’s organic then I believe that it’s organic”.
I spoke to the defendant.
The defendant’s friend was not going to give evidence and didn’t.[98] Notwithstanding the fact that he was legally represented he did say that if he realised the friend was required the friend who was said to be a fellow by the name of Jake Myers could have been present[99].
[98] transcript page 125
[99] transcript page 126
He said that “he tried it to see what they were all going on about”. When I asked him to be more specific his response was”[100] just mates from work, people – people in the mines that, you know, don’t have done – can’t smoke marijuana, obviously they’ve been smokers in the past and they can’t smoke it so..”
[100] transcript page 126
I asked him when he consumed the product it might give him a high or could have an effect upon him [101]his response was that it” could have but it didn’t yeah”. He said he “wasn’t hoping for any effect “… Because he was not a smoker of weed he only smoked cigarettes.
[101] transcript page 126
He agreed that herbal was being retailed in three locations but he again said he could not say they are all the same product though. [102]
[102] transcript page 126
When I asked him about how he knew that herbal substances work being retailed - he agreed with me that there was signage in front of one location, and then he told me that he was a director of Western Confederate Tattoo shop[103]. He didn’t seem to think that meant he had any additional obligation as to what was sold at that location and he claimed to have nothing to do with what goes in and out of their or tattooing or anything like that.[104]
[103] transcript page 127
[104] transcript page 127
In assessing the evidence of the defendant I was in a unique position of having to sentence Mr Hogue earlier that day. In that sense I was told a little of his background -however that did not form part of the evidence in these proceedings. Mr Hogue struck me as a fairly simple person, with what might be described as a laid back approach.
Mr Hogue is not criminally responsible without knowledge of the nature of the substance[105]. However, where Mr Hogue denies such knowledge, he must establish lack of such knowledge by virtue of the operation of section 129 of the Drugs Misuse Act. The requirement in that section is that the belief be honest and reasonable[106].
[105]Clare {1994} 2 QdR 619 at 639, 643, 646
[106]Drugs Misuse Act section 129 sub paragraph d
In relation to the issue arising in respect of the visibility of the substance this doesn’t appear to be an issue in terms of the evidence of Dr Robertson at page 109 of the transcript where he observes nothing could be seen of the active ingredient of cannabis or THC. However it might be relevant to whether or not Mr Hogue had an honest and reasonable but mistaken belief as to fact. i.e. if he could see crystals or some such thing this might have put him more at ease with his view that what he had was not a dangerous drug.
In my assessment there was some degree of unreality with portions of Mr Hogue’s evidence. It appeared to me that he was actively attempting to limit or restrict his responses to the questions put to him. His tone of voice was at times flippant but he appeared guarded in some other responses. He was smirking at times – it appeared that the prosecution case was in some way amusing to him. His evidence for example in respect of the interaction with police in respect of the substance was that his reference to the substance as “herbal’ was a private joke between he and ‘Coatsey and his boys’. It appeared to me that he cynically and deliberately attempted to put the best possible spin on his evidence.
My additional observations with his evidence:
1. He was clearly smoking the substance for an effect;
2. He didn’t get the effect -but strangely said that he wasn’t hoping for an effect - the logical question for me then was why smoke it;
3. He said he was a tobacco smoker - logically then - why smoke something which in his logic when you look at the relevant parts of his evidence -was not fit for human consumption;
4. I find it difficult to believe that if as many people know what is being sold at a Western Confederate Tattoo shop, of which he was a director he seemed to think there was that he would have little or no knowledge of what was sold or to use his words what “went in or out of there”.
5. The clear inference that arises from the photographs of what he was given by his friend was that it was intended by him to retain the substance so that it could be consumed again;
6. The substance was clearly not in the same packaging as that which the defence suggested was available at locations in and around Mt Isa based upon Mr Hogue’s evidence –
7. The substance if it was something that could be obtained at numerous locations around Mt Isa was given to him by a friend at work in a clip sealed bag with the words give this a try - see also the report why take the risk with that substance apparently with Mr Hogue not really knowing what it was, simply believing in his words were in his view that it was herbal - when if he wanted to give a herbal substance a try he could buy that which was commercially available at locations in Mt Isa and from one location where he was a director of the entity which sold the substance.
8. He clearly had possession of a usable quantity of the substance -he had consumed some-and had retained the balance in all probability for future use one might naturally infer on the evidence- if he could not see what all the fuss was about one wonders why he simply didn’t discard the package and contents
It was also the case that Mr Hogue in his evidence said he didn’t know where the friend referred to had got the green leafy material special from yet what was put to the Police Officer was plainly different. (i.e. the precise location or source of the substance was referred to.)
In my assessment the belief of Mr Hogue was neither honest nor reasonable in the circumstances. In my assessment of his evidence and the way in which was given was that his response or belief was somewhat like the substance that he had possession of, “manufactured.”
I was referred to decisions of other courts which dealt with possession of minute quantities of illegal substances on a penknife[107], or whether the defendant had had possession of a drug at a previous time[108] however I’m not sure on the evidence of Mr Hogue and having regard to the form of the evidence in relation to the substance that those decisions were on point or relevant, other than to say that they support the fairly clear Queensland position that the mere possession of a minute quantity of a dangerous drug is not of itself enough to support a successful prosecution. I will repeat that I do not believe this is a case where it could be said that the chemical is so minute that it cannot be proved that the accused knew he had it. Mr Hogue clearly knew he had a substance - he had in fact smoked it.
[107]R. V. Marriott {1971} 1 All ER 595 defendant's document number 11
[108]R.V.Boysen [1982} A.C. 768
I find the defendant guilty as charged.
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