R v Day & Bendo - [2007] SADC 126

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DAY & BENDO
[2007] SADC 126
Ruling of His Honour Judge Rice
29 November 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - SEARCH WARRANTS - EXECUTION
Accused charged with various offences including taking part in the manufacture of methylamphetamine - shed of house premises entered and searched pursuant to a General Search Warrant - challenge to admissibility of entry, search and seizure on the basis that the initial entry and search, purportedly in exercise of the General Search Warrant, was illegal because the warrant holder was about 500 metres to a kilometre away at the time at a staging area - once the initial entry and search made, warrant holder at scene within minutes - premises then further searched - equipment and chemicals that could be used in the production of methylamphetamine located - premises sealed - thorough search and then seizure in daylight hours in express use of General Search Warrant.
Held - initial search illegal because warrant holder not present at time of entry and initial search to supervise and control execution of warrant - evidence admitted notwithstanding illegality.
Summary Offences Act 1953 s 67; Controlled Substances Act 1984 s 52, referred to.
R v Taylor (1992) 58 A Crim R 337; R v Ambrose (1973) 57 Cr App Rep 538; R v Martin (2007) SASC 336; R v Norton-St Clair and Riddle (2005) 93 SASR 48; R v Johnson (No 2) (2004) 143 A Crim R 395; Swanevelder v Holmes (1990) 52 SASR 549; Crowley v Murphy (1981) 34 ALR 496; R v McKelliff (2004) 87 SASR 476; R v Long & McDonnell (2002) 137 A Crim R 263; Bunning v Cross (1978) 141 CLR 54, considered.

R v DAY & BENDO
[2007] SADC 126
Introduction

The accused, Allen John Day and Stephen John Bendo are jointly charged with taking part in the manufacture of methylamphetamine, possessing a firearm without a licence, possessing an unregistered firearm, possessing an unsecured firearm and failing to store ammunition in a locked container. The last two of these offences are regulatory and I raise what I perceive to be an overloading of the Information with regard to them. I doubt whether proof of these regulatory offences would be relevant at any trial. (For an extreme example of overloading an Information see R v Taylor[1]; for a more general admonition where trivial charges are added see R v Ambrose[2].) Each of the regulatory offences attracts a maximum fine of $2,500. It is alleged that the manufacture of methylamphetamine took place between 3 January, 2005 and 13 April, 2005. All firearms offences are alleged to have been committed on 12 April, 2005.
[1] (1992) 58 A Crim R 337 at pp 340-1
[2] (1973) 57 Cr App Rep 538 at 540-1
The charges were brought following a police raid on premises at 57 Grey Avenue, Welland (“the premises”) on 13 April, 2005.
Both accused filed applications pursuant to Rule 9 in relation to the search by police of the premises on 13 April, 2005, and I shall refer to the accused as “the applicants” for the purposes of this ruling. The applications are in almost identical terms and seek the same ruling, namely, that all evidence located as a result of the entry and search of the premises on 13 April, 2005 be excluded from evidence. Both applications allege that this entry and search was unlawful in that Detective Brevet Sergeant Thompson, who was the holder of a General Search Warrant (“GSW”), which was being used for this purpose, was not present at the time entry was gained to the premises and the applicants detained. Put another way, Det Sgt Thompson was not “with” his assistants at the time of the entry by them or they were not “with” him. This point or a point similar to it was alluded to in R v Martin[3], but not discussed or resolved.
[3] (2007) SASC 336 (at paras 4-5, 15-23)
I heard evidence on the voir dire from a number of witnesses over some five days. At the conclusion of the evidence and submissions from counsel I reserved my decision. I now publish my decision and reasons.
Applicable legislation
Section 67 of the Summary Offences Act 1953 (“the Act”), which deals with GSWs, relevantly provides:
(1)Despite any law or custom to the contrary, the Commissioner may issue general search warrants to such police officers as the Commissioner thinks fit.
……….
(4)The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a) the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that—
(i)an offence has been recently committed, or is about to be committed; or
(ii)there are stolen goods; or
(iii)there is anything that may afford evidence as to the commission of an offence; or
(iv)there is anything that may be intended to be used for the purpose of committing an offence.
It is also appropriate to note that s 52 of the Controlled Substances Act 1984 provides for the issuing of warrants to search premises for evidence of offences against that Act. A warrant issued pursuant to s 52 must be supported by information on oath, and, in some circumstances, is more restrictive in its terms than the GSW. No officer involved in the 13 April, 2005 search held a warrant pursuant to s 52. I doubt whether it would have made any practical difference to the manner of execution of a s 52 warrant as compared with a GSW. I would expect that only Det Sgt Thompson would have been in a position to provide information on oath for the purposes of a s 52(5) warrant. However, the quite specific police procedures would then take over (as is referred to below) and its execution much the same. Without deciding the point, it may be, however, that the wording of s 52(11) is such as to avoid the problem raised by these applications.
The entry and initial search
The initial search of the premises took place shortly after midnight on 13 April, 2005. It was ostensibly carried out under the authority of a GSW held by Det Sgt Thompson, and issued to him on 1 January, 2005. Det Sgt Thompson gave evidence that, on 12 April, 2005, while stationed at Holden Hill CIB, he had received reliable information suggesting that a clandestine drug laboratory was operating at the premises and that up to five people may have been present. The information was to the effect that the manufacturing process was in progress at that time. This information came from an informer and Det Sgt Thompson was understandably concerned that this person’s identity remains undisclosed. Det Sgt Thompson’s evidence was that he knew the accused Allan Day to be the occupant of the premises, and that Day was known to him. He knew these things independently of what he was told by the informer. I find that Det Sgt Thompson held a reasonable suspicion that an offence was being committed, or had been committed, at the premises (and a search may afford evidence of it) as required by s 67(4)(a) of the Act.
Det Sgt Thompson contacted Detective Brevet Sergeant Hunt of the Drug Investigation Branch, previously the Drug and Organised Crime Investigation Branch (referred to throughout the proceedings as DOCIB), as well as the Metropolitan Fire Service and Ambulance Service. The Special Tactics and Rescue (STAR) Group was also contacted. Personnel from each of these services were to attend. A number of police officers gave evidence to the effect that this was standard practice when dealing with operating, or “hot”, clandestine drug laboratories.
It was decided that the search of the premises would be staged from the car‑park of a Radio Rentals shop at 4 South Rd, West Hindmarsh. On the evidence given on the voir dire, this location is between 500 metres and one kilometre from the premises.
There were very sound operational reasons why that site was chosen. Evidence was given that this site was chosen as it was a large and reasonably well-lit space to accommodate the various personnel and vehicles, and a sufficient distance from the premises so as not to arouse the suspicion of the occupants or any visitors to the premises. There was also the risk that the premises were used to supply users in the street and these people may alert the occupants of an imminent police raid. Further, it allowed those officers not trained to deal with operating clandestine laboratories to remain at a safe distance while the premises were secured.
Those members of the police who were to be involved in the search of the premises were briefed by Det Sgt Thompson in the car-park. There was an abundance of evidence put before the Court on the voir dire for me to conclude that Det Sgt Thompson intended that the search would take place under the authority of his GSW. As mentioned, he considered, and I accept, that the information he had received was sufficient for him to entertain a reasonable suspicion of the kind referred to in s 67(4)(a). Det Sgt Thompson informed those present that the premises were to be entered pursuant to his GSW. Det Sgt Hunt gave evidence that he, too, held a GSW, but did not consider himself to have a reasonable suspicion of the type contemplated by s 67 of the Act. On his evidence, his warrant was not activated during the entry into, and search of, the premises.
On the voir dire, the search of the premises was broken down into four discrete stages, these being:
(a)Entry into the premises by STAR group officers, who removed the applicants from the shed and detained them;
(b) Arrival of the arrest team and the formal arrest of the applicants;
(c)Entry into the shed by the DOCIB assessment team. A cursory search was undertaken and all items located were to remain in situ; and
(d)Daylight re-entry into the shed by DOCIB to process the scene. A video recording (VDD2) was taken of this processing.
The impugned action was the entry by STAR group officers into the shed and their detention of the applicants. Messrs Stewart and Vadasz argued that this constituted an unlawful entry and search, and tainted all subsequent search and seizure activities performed at the premises on 13 April, 2005.
Throughout the STAR group entry into and clearance of persons from the premises Det Sgt Thompson remained at the staging point. He was in constant direct radio contact with members of DOCIB, and was able to communicate indirectly with STAR group officers, who operated on a different frequency. He gave evidence, which was supported by that of Det Sgt Hunt and others that, so far as he was concerned, he retained command of the operation even though there were more senior officers present. I accept that evidence.
STAR group officers were the first to enter the premises. The STAR group entry and detention procedure was carried out at the direction of Inspector Robert Williams, the on-duty Tactical Commander of STAR group. Inspector Williams remained at the staging point. The STAR group arrest team was led by Sergeant Darren Watkins, who gave evidence on the voir dire. The information received by Det Sgt Thompson indicated that the suspects were in a shed at the rear of the premises. The STAR group team moved up the driveway towards the shed. Inside were the applicants and a third person, Kate Lee Jenkins. The applicants and Ms Jenkins were forcibly removed and made to lie on the ground. This was stage (a) referred to above. There was evidence that the accused Day suffered a wound to the head, as well as lacerations to his knees and elbows. Sgt Watkins gave evidence that he pointed his firearm at the accused Bendo while he was lying prone on the ground. Defence counsel for both parties raised the possibility of excessive force, and made submissions on common law powers of arrest. These submissions were not pursued with any great vigour, and I would decline to exclude the evidence on this basis.
There was significant criticism of the police practice of “dynamic entry”, which I understand to be a rapid, forced entry into premises (if necessary) followed by the immediate removal and detention of all persons present. Evidence was given that this type of entry is common practice (if not universal) when dealing with clandestine drug laboratories, particularly operating laboratories. There will, of course, be situations where it is appropriate, but it is unclear whether the present case was such a situation as events turned out. On the evidence given in Court and the declaration statements of those police officers present, it appears that the applicants and Ms Jenkins were sitting in the shed at the time of STAR group entry, possibly engaging in the intravenous use of drugs. There was no actual production occurring at that time, although the STAR group were not to know that. There was still the danger represented by chemicals, particularly if resistance was encountered.
There was no dispute on the voir dire that no STAR group officer held a GSW or a warrant pursuant to s 52 of the Controlled Substances Act. Both Sgt Watkins and Sen Sgt Cheesman stated that they believed the entry into the premises was to be conducted pursuant to Det Sgt Thompson’s GSW. As I have already stated, Det Sgt Hunt’s evidence was that he did not entertain the requisite suspicion to activate his GSW.
Neither applicant was formally arrested at the time of the STAR group entry. Only once the applicants had been removed from the shed and detained did the arrest team arrive. That was only a matter of minutes later. Formal arrests were performed by officers MacIntyre and Baird in the case of the accused Day, and officers Thornton and Warner in the case of the accused Bendo. Det Sgt Thompson gave evidence that he was present at the scene near to the front boundary of the premises when the formal arrests were made, although at no point did he enter the shed. This was supported by MacIntyre, who stated that Det Sgt Thompson was present when she arrived. Against this was the evidence given by Mr Camilleri to the effect that he could not remember seeing Det Sgt Thompson at the premises, and that of Det Sgt Hunt who stated he did not see Det Sgt Thompson at this time, although they may have been concerned with preparing to assess the shed. I accept Det Sgt Thompson on this point.
A cursory search of the shed was performed by Mr Michael Camilleri, a forensic scientist, accompanied by officers Det Sgt Hunt and Det Sgt Smith from DOCIB. Chemicals and glassware of the type used in the manufacture of methylamphetamine were found located throughout the shed. Additionally, a small amount of substance resembling methylamphetamine was found in the shed, as were hypodermic syringes containing a liquid. Both Mr Camilleri and Det Sgt Hunt stated in evidence that items were examined and returned to the locations in which they were found. This was stage (b).
It is important to note that Det Sgt Thompson remained while the cursory search was undertaken by Mr Camilleri and Det Sgt Hunt. That took about 10 to 15 minutes. Det Sgt Thompson then arranged to have the premises sealed and guarded by the police until daylight that day.
There was some conflict between the evidence given by Det Sgt Thompson and Det Sgt Hunt as to when conversations took place between them. Mr Vadasz suggested to Det Sgt Thompson in cross-examination that he had not spoken to Det Sgt Hunt prior to Det Sgt Hunt’s entering the shed with Mr Camilleri. This suggestion was denied.
Later that day a more comprehensive search of the shed was carried out by Det Sen Const Anthony Brain and Mr Camilleri, and a number of items were seized. Det Sen Const Brain was the holder of a GSW, as was Det Kenneth Griffiths whose declaration statement indicates he was responsible for the conduct of this search. Sen Const Brain, in his declaration of 22 May, 2005, expressly says that he invoked his GSW for the purposes of this daytime entry, search and seizure. This search was recorded on a videotape which was tendered on the voir dire. The video showed that the shed contained chemicals and glassware of the type often used in the manufacture of methylamphetamine. Upon analysis, the white substance located in the shed was found to contain methylamphetamine, as was the liquid found in one of the syringes. It was pointed out by counsel for both applicants that the glassware was not set up and appeared to have been neatly packed away. Although that was the way it was when the entry took place, that does not mean an actual manufacture was not taking place earlier in the evening.
Despite the inconsistency between the evidence given by Det Sgts Thompson and MacIntyre on the one hand, and Mr Camilleri and Det Sgt Hunt on the other as to when Det Sgt Thompson arrived at the premises, as indicated I accept that Det Sgt Thompson was present at the premises from the arrival of the arrest team onwards.
Entry into Clandestine Drug Laboratories
Something needs to be said about the police procedures existing at that time relating to entry into clandestine drug laboratories. Exhibit P4 on the voir dire deals with this topic. The police procedures are contained within a document headed “Special Purpose Manual, General Order 8350, Drug Exhibit Management” issued by the Commissioner of Police in November, 2003. As is made plain in the document itself, officers are obliged to comply with its instructions in the same manner as other General Orders.
The Manual contains this section:
Clandestine Drug Laboratories
Clandestine drug laboratories can pose a significant threat to the community, environment and agencies that have to deal with them.
They should be treated with extreme caution at all times as chemicals encountered can be explosive, carcinogenic, flammable, toxic and corrosive.
Members encountering clandestine drug laboratories through accidental or unplanned discoveries should immediately remove any person, isolate and cordon off a safe perimeter, preserve the scene and request the attendance of trained members.
A specialist group is available through Drug and Organised Crime Investigation Branch (DOCIB) that has the skills and the equipment to seize and process clandestine drug laboratories effectively and safely.
DOCIB must be notified of all suspected clandestine drug laboratories as soon as practicable.
Only trained and authorised persons under the management of this group are permitted to enter, search and process clandestine drug laboratories.
General Order 8200 Clandestine Drug Laboratories Operations Manual identifies procedures for dismantling clandestine drug laboratories, and is based on the current National Clandestine Drug Laboratory Response Plan, 2002.
General Order 8200 was also tendered (exhibit P5 on the voir dire). It contains the following prescription for entry:
ENTRY
The entry team risks encountering the most danger. It will, therefore, comprise only personnel who have completed training in the safety aspects of clandestine laboratory investigation. This instruction applies to both raids and covert entries. Where circumstances dictate that experts from sections other than Drug Task Force be used to effect entry to, or to process exhibits within, the laboratory the following will apply:
•Prior to entry these experts must have received basic instruction in safety techniques and the use of safety equipment and safety clothing.
•Their entry and movement within the laboratory site must be supervised by the site safety officer or assistant site safety officer.
•On exiting the site all personnel must undergo decontamination procedures as directed by the site safety officer.
The officer in charge of the raid, the site safety/exhibit officer and the forensic chemist must determine the personnel and numbers to make up the entry team and the level of safety clothing and equipment to be worn.

The entry and search in this case appears, generally speaking, to have been conducted in accord with these General Orders. The General Orders themselves have been formulated with the most important consideration being safety concerns for the police, the community and suspect (exhibit P6 on the voir dire). If the initial entry and search was illegal for reasons connected with the use of the GSW, as identified by counsel for the accused, there is no doubt in my mind that the officers concerned were bona fide in their actions and complying with the dictates of General Orders.
The law
It was argued by both Mr Stewart and Mr Vadasz that Det Sgt Thompson’s non‑attendance at the premises rendered all stages of the search unlawful, and that all evidence obtained as a result of police entry into the shed should be excluded from evidence, including what was found when the more thorough search was undertaken in the daylight hours.
Counsel for the applicants, particularly Mr Vadasz, contended that it was not possible to sever the impugned stage of the search from the following stages, and that this necessitated the exclusion of evidence obtained at all stages. When this submission was made, I indicated that I did not see this as a necessary conclusion. This continues to be my view. In any event, I do not consider it to be of great significance to my determination of this matter. Whether the four stages of entry into the premises constituted one or more discrete searches is not determinative of the legality of the search.
No objection was taken to Mr Camilleri’s presence in the shed during the assessment or processing of the scene at night or in the daylight hours. In my view, no such objection could have been taken. Mr Camilleri clearly fell within the definition of “assistant” in s 67(4)(a) of the Act. As stated in R v Norton-St Clair and Riddle[4], there is nothing on the face of the legislation to suggest “assistant” should be limited to a police officer (at [66-67]). Further, relying upon the decision of Sulan J in R v Johnson (No 2)[5], there is no necessary requirement that an assistant be subordinate or inferior to the holder of a GSW. Especially in a search such as this, different assistants will bring different skills and types of expertise to the task. For that reason, an assistant may be quite autonomous when performing tasks within the scope of that persons training, skills or expertise and yet remain an “assistant” within the meaning of s 67(4)(a). To the extent that this proposition differs from that put by Olsson J in Swanevelderv Holmes[6], I consider myself bound to adopt the more recent approach taken by Sulan J, which I prefer in any event. Prima facie, there is no reason to rule that Mr Camilleri, or any of the officers involved in the search of the premises, could not have been assistants for the purposes of s 67(4)(a).
[4] (2005) 93 SASR 48 at [66-67]
[5] (2004) 143 A Crim R 395 at [69]
[6] (1990) 52 SASR 549
Mr Stewart began his submissions by identifying the word “with” in s 67(4)(a) as the pivotal term. No objection was taken to the general capacity of those persons who carried out the search to act as assistants. His submission was that Det Sgt Thompson was so removed from the scene during the STAR group entry that this element of the search could not be properly characterised as having been performed by Det Sgt Thompson with the aid of assistants. Mr Stewart’s submission was, rather, that the search was performed entirely by the “assistants” and not acting under the authority of Det Sgt Thompson’s GSW.
In applying the law as it relates to the execution of a GSW, the judgment of Doyle CJ in R v Norton-St Clair and Riddle provides some significant assistance. Factually, it is not dissimilar to the present case, although there are, of course, differences. That case dealt with a situation in which the holder of a GSW did not himself enter premises searched pursuant to that warrant. Doyle CJ, with whom Bleby and Gray JJ agreed, held that the warrant holder remained in charge of the search, which took place under his direction. This was sufficient to render the search lawful.
Norton-St Clair and Riddle can be clearly distinguished from the present case on its facts. Here, the warrant holder was, at the least, some 500 metres from the premises when entry was first effected. In Norton-St Clair and Riddle, the warrant holder was standing on a verandah outside the door, photographing items as they were removed from the house. He was obviously in a position to exert control over the manner in which the search was conducted. As noted by Doyle CJ, the question of whether a search has been carried out under the direction of a warrant holder is one of fact (Norton-St Clair [66-7]).
Generally, the holder of a search warrant is required to be present during an entry and search conducted under the authority of that warrant. This is because the warrant authorises what would otherwise be a trespass. The terms of a warrant must be strictly adhered to (Crowley v Murphy[7]). Section 67 provides that the holder of a GSW must entertain a reasonable suspicion in regard to an offence having occurred or occurring on premises. This suspicion “activates” the GSW (R v McKelliff[8]). In Norton-St Clair, Doyle CJ stated that “[w]hat has to be considered is whether the warrant holder purports to exercise the power conferred by the warrant on the holder, and exercises overall control” [67]. The warrant holder is required by s 67 of the Act to exercise overall control over the entry and search. The warrant holder must be in a position to supervise the assistants. Any search performed must be an action based upon the warrant holder’s suspicion. Additionally, the holder of a search warrant is required to present that warrant upon demand. In the present case, this was obviously not possible due to Det Sgt Thompson’s distance from the premises at the time entry was effected.
[7] (1981) 34 ALR 496, per Lockart J at 523
[8] (2004) 87 SASR 476
On the evidence placed before me on the voir dire, I do not accept that the warrant was validly executed. Det Sgt Thompson was unable to exert any real authority and control over the entry stage conducted by STAR group officers. This is a consequence of his distance from the premises. Although Det Sgt Thompson was not in a position to direct the STAR group entry team in their initial entry into the premises, they were still his assistants but he was not with them nor they with him. For the purposes of s 67(4)(a), STAR group officers who effected the initial entry were acting as Det Sgt Thompson’s assistants even though they were autonomous in performing that function. However, it cannot be said that this aspect of the search was conducted under the authority of Det Sgt Thompson’s GSW because Det Sgt Thompson was not with his assistants.
I accept the submission of Mr White that s 67 must be interpreted so as to give it a practical effect. This much can be seen from the judgments in Norton-St Clair, R v Long & McDonnell[9] and Johnson. Section 67 must be interpreted in such a way that it operates in a practical and workable manner. This does not, however, abrogate the duty incumbent on police officers to ensure that search warrants, general or otherwise, are lawfully executed.
[9] (2002) 137 A Crim R 263
Policy in relation to police entry into suspected clandestine laboratories
I acknowledge the potential risks involved in any raid on a clandestine laboratory, although I am not satisfied they are as high as police policy and evidence given by police officers may suggest. At the same time, it is hard to be too critical of a policy that “it is better to be safe than sorry” when dealing with the hazards to both police and civilians when such a raid is undertaken. However, the adoption of quite proper policies to minimise these risks must not lead to non-compliance with the obligation upon police to carry out searches in a lawful manner. The dangers posed by an operating clandestine laboratory do not relieve police officers of their duty to ensure that all searches are lawfully effected.
Ruling and exercise of discretion
I find that the GSW was not validly executed. However, I retain a discretion to admit the evidence located as a result of the search notwithstanding the illegality. The unlawfulness surrounding the search emanated from a policy the object of which was to ensure the safety of those involved in action against clandestine laboratories. Although STAR group officers may have acted with excessive force in removing the applicants from the shed and detaining them (as to which I make no finding), the entry can be properly characterised as an act in good faith. They acted in accordance with a policy aimed at minimising the risks faced by police officers and civilians when entering clandestine laboratories. The impugned search uncovered cogent evidence of serious criminal misconduct having occurred in the premises. The admission of evidence obtained as a result of the search will not prejudice the applicants in any improper sense (Bunning v Cross[10]).
[10] (1978) 141 CLR 54
Further, it is important to note the effect of my earlier factual findings. It was only the initial entry that I have found to be illegal because that occurred in the absence of the warrant holder. In those circumstances, there was no ready ability in Det Sgt Thompson to produce the warrant to those on the property or control and supervise, in an immediate sense, the STAR group officers.
However, I have also found that once the detained people, including the two accused, were brought to the front of the property, Det Sgt Thompson was present and the preliminary search was conducted by DOCIB officers with Mr Camilleri. Although they located many items that would be used in the manufacture of methylamphetamine, nothing was seized at that stage.
The thorough search and seizure of the shed was conducted during the daylight hours. At that stage other officers with GSWs were present and they conducted that search and seizure pursuant to their own GSWs. There was no challenge to the exercise by them of their powers pursuant to those warrants.
The illegality of the search was a product of a policy put in place for the protection of police and members of the public. It may be that this policy needs to be changed so as to avoid similar illegalities in the future, but that is for the relevant authorities to determine. In the circumstances I have described, I exercise my discretion to admit all of the evidence.
One further matter needs to be mentioned. As noted, there was no operating amphetamine laboratory at the time of entry. In the normal course of a trial, the content of the information provided to Det Sgt Thompson would not be disclosed in evidence. There were equipment and chemicals that would normally be used in the production of methylamphetamine in various cupboards and the like in the shed. A production may have taken place at some stage, but who was present at that time and who took part is very much an open question. The prosecuting authorities should reconsider whether they can succeed on this drug charge against the accused Bendo, even considering the wide interpretation given to s 32(4)(a) of the Controlled Substances Act 1984.