R v Elrayes - [2012] SASCFC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Case Stated)
R v ELRAYES
[2012] SASCFC 28
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Stanley)
30 March 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
STATUTES - BY-LAWS AND REGULATIONS - CONSTRUCTION - PARTICULAR WORDS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IDENTITY OF PROHIBITED SUBSTANCES
A District Court Judge reserved questions of law to be considered and determined by the Full Court in accordance with s 350 of the Criminal Law Consolidation Act 1935 (SA) – accused charged on Information with trafficking in a commercial quantity of a controlled drug contrary to s 32(2) of the Controlled Substances Act 1984 (SA) – construction and interpretation of technical terms in Schedule 1 and Regulation 5 of the Controlled Substances (General) Regulations 2000 (SA).
Questions of law answered as follows:
Question 1.a. – yes – Regulation 5 declares each substance listed in Schedule 1 to be a controlled drug, and has the effect of treating each of the named forms of a controlled drug listed in Schedule 1 as that same controlled drug – Regulation 5 does not establish separate controlled drugs but broadens the scope of Schedule 1.
Question 1.b.i and 1.b.ii – no and yes respectively – the amount listed in the column headed “Commercial (pure)” in Schedule 1 opposite the entry “methylamphetamine” applies to methylamphetamine in its “pure” or “base” form, and to methylamphetamine in a “preparation, admixture or solution”, in which the substances referred to in Regulation 5(1)(a)-(e) exist, and also to each of the forms of methylamphetamine referred to in Regulation 5(1)(a)-(e) – the effect of listing the relevant amount opposite the entry listing methylamphetamine is to provide that if the relevant form of methylamphetamine is found to contain that amount of methylamphetamine in its pure form, then a commercial quantity of methylamphetamine is present.
Question 2: not necessary to answer.
Criminal Law Consolidation Act 1935 (SA) s 350(2), s 351(1); Controlled Substances Act 1984 (SA) s 4(1), s 4(2), s 4(3), s 12(4), s 32(2), s 32(5), s 32(5)(a)(i), s 32(5)(a)(ii), s 32(5),(b); Controlled Substances (General) Regulations 2000 (SA) r 5, r 5(1), r 5(1)(a), r 5(1)(b), r 5(1)(c), r 5(1)(d), r 5(1)(e), r 6(3), r 6(4), Schedule 1, referred to.
R v Willingham [2012] SASCFC 29, discussed.
R v Willingham [2011] SADC 172, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
""Salt", “Pure”, “Base”, “Base form”, “Preparation, admixture or solution”, “natural or synthetic form”, “analogue”, “homologue”, “methylamphetamine”"

R v ELRAYES
[2012] SASCFC 28
Court of Criminal Appeal: Doyle CJ, Gray and Stanley JJ

DOYLE CJ: A Judge of the District Court has reserved for consideration and determination by this Court certain questions on an issue antecedent to the trial of Mr El Rayes. The power to do so is conferred by s 350(2) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).
Mr El Rayes is charged on Information with trafficking in a commercial quantity of a controlled drug contrary to s 32(2) of the Controlled Substances Act 1984 (SA) (“the CSA”). The particulars relevantly allege that he trafficked in a controlled drug “… namely methylamphetamine, or a salt of methylamphetamine, or an isomer of methylamphetamine, or a salt of an isomer of methylamphetamine” (emphasis added). The words emphasised were added, by amendment, after the publication of the reasons of another District Court Judge in R v Willingham [2011] SADC 172.
The questions reserved raise issues that overlap the issues considered by this Court in R v Willingham [2012] SASCFC 29. My reasons in the present case are to be read with my reasons in Willingham.
As the charge in this case is laid under s 32(2) of the CSA, proof of guilt requires proof that Mr El Rayes trafficked in a commercial quantity of a controlled drug. That requires consideration of the definition of “commercial quantity” in s 4(1) of the CSA. It also requires consideration of sub-regs (3) and (4) of regulation 6 of the Controlled Substances (General) Regulations 2000 (“the Regulations”). These provisions were not raised directly in Willingham, although they were relevant to the matters considered in that case.
Questions, Facts and Legislation
In his reasons Gray J has set out the questions reserved, relevant provisions of the CSA and of the Regulations, and the relevant facts. I adopt that part of his reasons. Gray J has also set out the findings made by the District Court Judge, for the purposes of this Court’s consideration of the reserved questions. The findings are clear and helpful. It is evident that the District Court Judge and counsel had the benefit of the reasons of the other District Court Judge in R v Willingham [2011] SADC 172, and this has enabled the Judge to focus attention on the facts and findings necessary for the purposes of the questions reserved.
I make the following comments on the Judge’s findings.
The findings illustrate the complexity that underlies the technical terms used in reg 5 and on occasions in provisions of the CSA.
As the Judge found, there is some overlap between the terms “derivative” (reg 5(1)(b)); “analogue” (reg 5(1)(c) and s 4(3) of the CSA), and “homologue” (reg 5(1)(d)); findings page 7, 27.a.i. As well, a salt can be described as a preparation (reg 5(1)(e)), findings page 7, 27.b.ii.
Methylamphetamine is a synthetic substance. Regulation 5(1)(a) declares each substance listed in Schedule 1 to be a controlled drug. It also declares that such a substance is a controlled drug whether present in “the natural or synthetic form”. This supports the conclusion that reg 5(1) deals with forms in which a listed substance is found, and treats each such form as the substance listed in Schedule 1, and not as a separate controlled drug. In the present case the controlled drug is methylamphetamine, not methylamphetamine in its synthetic form. Regulation 5(1)(a) declares that the substance listed in Schedule 1 is a controlled drug, be it present in the natural or synthetic form.
Regulation 5 identifies various forms in which a controlled drug listed in Schedule 1 may be found and provides that if found in one of these forms the controlled drug is present. Once again, the controlled drug in this case is methylamphetamine, present in any one of the forms listed in reg 5: findings, page 5, 27.a.iii and iv.
The “pure” or “base” form of methylamphetamine is one form of methylamphetamine. Neither the term “pure” nor “base” appears in reg 5, although “pure” is used in Schedule 1. But I consider that the listing of methylamphetamine in Schedule 1 must embrace methylamphetamine in the “pure” or “base” form, as well as in the forms listed in reg 5(1). The salt form of methylamphetamine is but another form of methylamphetamine: findings, page 8, 27.e.ii.
The salts, derivatives, isomers, analogues and homologues of a controlled drug may have different pharmacological properties: findings, page 9, 28.4.
Methylamphetamine present in the form of a salt can be described in a number of different ways, falling under different subparagraphs of reg 5(1): findings, page 10, 30.
The substance in question in the present case is not methylamphetamine in its synthetic form, existing alone as a “base”: findings, page 10, 31. I take this finding to mean that the substance is not methylamphetamine in its pure form.
The substance is probably methylamphetamine in the form of a salt, which form contains “pure” or “base” methylamphetamine, and the weight of the “pure” or “base” form can be determined by chemical analysis: findings page 8, 27.e.v.
These findings assist in the interpretation of reg 5, and support the conclusion reached by this Court in Willingham. The drafting of the Regulations is far from ideal, but in the end the meaning of reg 5 in particular can be identified.
I will summarise my decision briefly, referring to methylamphetamine. Methylamphetamine is a controlled drug because it is named in Schedule 1: reg 5(1)(a). Methylamphetamine is a synthetic substance, but if it was found naturally as well, methylamphetamine would be a controlled drug in either form. The evidence establishes that methylamphetamine may be found in any of the forms referred in sub-paras (b), (c) and (d) of reg 5(1). It may also be found in a preparation admixture or solution: reg 5(1)(e). The purpose of reg 5(1) is to include within the reference to methylamphetamine in Schedule 1 a reference to each of the named forms in which methylamphetamine may be present.
I adopt without repeating them my reasons in R v Willingham [2012] SASCFC 29 in relation to the interpretation of reg 5(1) in particular. The findings of the Judge in the present case support the conclusion reached in Willingham [2012] SASCFC 29.
Consideration of Questions Reserved
Question 1. It is not clear if Question 1 is intended as a separate question, or as an introduction to Questions a and b. If it is intended as a separate question, I would decline to answer it. Standing alone, Question 1 appears to raise a number of possibilities that might turn out to be hypothetical. There appears to be no need to deal with Question 1 separately, in any event.
Question 1.a. I would answer this question in the affirmative, for the reasons that I gave in Willingham [2012] SASCFC 29. To avoid any uncertainty, reg 5 declares each substance listed in Schedule 1 to be a controlled drug, and has the effect of treating each of the named forms of a controlled drug listed in Schedule 1 as that same controlled drug. Each named form of methylamphetamine is correctly described as a controlled drug, namely, methylamphetamine. Depending on the circumstances, it might be desirable or necessary to identify the form in which it is said to be present. But usually that will not be necessary.
Question 1.b.i and ii. I would answer this question as follows. The amount listed in the column headed “Commercial (pure)” in Schedule 1 opposite the entry “methylamphetamine” applies to methylamphetamine in its “pure” or “base” form, and to methylamphetamine in a “preparation, admixture or solution”, in which the substances referred to in sub-paras (a)-(e) of reg 5(1) exist, and also to each of the forms of methylamphetamine referred to in sub-paras (a)-(e). To avoid uncertainty, I add that the effect of listing the relevant amount opposite the entry listing methylamphetamine is to provide that if the relevant form of methylamphetamine is found to contain that amount of methylamphetamine in its pure form, then a commercial quantity of methylamphetamine is present.
Question 2. It is not necessary to answer this question. I make the following brief comment. Question 2 appears to assume that reg 5 is to be interpreted in the manner in which it was interpreted by the Judge in R v Willingham [2011] SADC 172. On that approach, each form of methylamphetamine identified in sub-paras (a)-(e) of reg 5 is a separate or different controlled drug. The question appears to assume that there is no overlap between any of the terms used. Whether the District Court Judge in R v Willingham [2012] SADC 172 meant to go so far is unclear. In any event, on that hypothesis it may be that the charge as it stands is duplicitous, because on that approach the charge identifies four different forms of amphetamine and so four different controlled drugs. However, on this hypothesis each of them is a controlled drug, and any duplicity can be remedied by the prosecution electing to proceed in relation to one form only, or by the framing of counts in the alternative. It is not apparent that the Information as it stands would give rise to any unfairness to the accused.
Conclusion
For the above reasons I would answer the questions reserved in the manner indicated below, but would decline to answer Question 2.
Question 1.a  Answer “yes”
Question 1.b.i and ii  The amount listed in the column headed “Commercial (pure)” in Schedule 1 opposite the entry “methylamphetamine” applies to methylamphetamine in its “pure” or “base” form, and to methylamphetamine in a “preparation, admixture or solution”, in which the substances referred to in sub-paras (a)-(e) of reg 5(1) exist, and also to each of the forms of methylamphetamine referred to in sub-paras (a)-(e).
Question 2  Not necessary to answer.
GRAY J.
The defendant, Ayman El Amir Mohammed Elrayes, was jointly charged with three others with the offence of trafficking in a commercial quantity of a controlled drug contrary to section 32(2) of the Controlled Substances Act 1984 (SA).[1] The defendant pleaded not guilty to the charge. The three others pleaded guilty to the charge and have been sentenced.
[1] Section 32 of the Controlled Substances Act 1984 (SA) as at the time of the alleged offending relevantly provided:
…
(2)A person who traffics in a commercial quantity of a controlled drug is guilty of an offence.
…
(5) If, in any proceedings for an offence against subsection (1), (2) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a)     in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i)      was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b)     in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
In the within proceeding, the amended particulars provided:
Ayman El Amir Mohammed Elrayes between the 20th day of March 2008 and the 20^th day of June 2008 at Adelaide and other locations, knowingly trafficked in a commercial quantity of a controlled drug, namely methylamphetamine, or a salt of methylamphetamine, or an isomer of methylamphetamine, or a salt of an isomer of methylamphetamine.
By application dated 19 December 2011, the defendant applied to the Court for an order permanently staying the prosecution of the information of 29 November 2011. Two grounds were identified: first, that the information was an abuse of process as the offence of trafficking a commercial quantity of a salt of methylamphetamine is not known to the law; and secondly, that the information was bad for duplicity.
Pursuant to section 350 of the Criminal Law Consolidation Act 1935 (SA), a Judge of the District Court has reserved questions for consideration and determination by the Full Court. The questions were reserved in the following terms:
1.   Is the defendant liable at law to be found guilty of the offence charged on the information, namely “Trafficking in a Commercial Quantity of a Controlled Drug”, notwithstanding that there is a reasonable possibility the substance allegedly possessed by him was in salt form and is therefore capable of being described in a number of different ways, including but not limited to the following:
·The synthetic form of methylamphetamine (existing in a salt preparation)
·A salt of the synthetic form of methylamphetamine (existing either alone or in an admixture together with impurities or cutting agent)
·An isomer of the synthetic form of methylamphetamine (existing in a salt preparation)
·A salt of an isomer of the synthetic form of methylamphetamine (existing either alone or in an admixture together with impurities or cutting agent)
but could NOT be described as:
·The synthetic form of methylamphetamine base existing alone?
Specifically:
a.Does Regulation 5 operate to declare each substance listed in Schedule 1 to be a single controlled drug, wherein the substance includes any of the forms referred to in Regulation 5 (1) (a)-(e)?
b.Does the prescribed quantity for “Commercial (pure)”, listed alongside “methylamphetamine” in Schedule 1:
i.      apply only to methylamphetamine in its base form?;
ii.apply to methylamphetamine existing in a “preparation, admixture or solution” wherein the preparation is the salt of methylamphetamine?
2.   If Regulation 5 creates separate and distinct controlled drugs, is the information, which changes Trafficking in a Commercial Quantity of a Controlled Drug and particularises a substance listed in Schedule 1, but which also particularises in the alternative various forms of the substance listed in Schedule 1, bad for duplicity or uncertainty?
This case stated was heard at the same time as another proceeding, Willingham, in which similar issues arose. The within reasons have been prepared having regard to the reasons of the Court to be published in the matter of Willingham.[2]
[2] R v Willingham [2012] SASCFC 29.
Background
On 19 June 2008, police intercepted the defendant and another man after they disembarked a bus in Adelaide. The bags which the men each carried were searched. The police located three plastic bags wrapped together as a single package within the bag which was being carried by the defendant. The plastic bags contained a quantity of crystalline material which was seized by the police and analysed by Forensic Science SA.
The analysis revealed that the crystalline material weighed a total of 250 grams and contained 182.3 grams of “methylamphetamine base equivalent” which was approximately 73 per cent pure.
In light of the decision of a District Court Judge in Willingham,[3] the particulars of the charge in the present proceeding were amended. The Judge in Willingham, following a trial by Judge alone, acquitted the defendant of each of the counts on the basis that the controlled drug in his possession was a salt of the alleged controlled drug, not the controlled drug particularised in each of the counts.
[3] R v Willingham [2011] SADC 172.
The Findings of the District Court Judge
In accordance with section 351(1) of the Criminal Law Consolidation Act, the District Court Judge made a number of findings of fact to allow for the proper determination of the questions which have been reserved. In particular, the Judge accepted evidence from Benjamin Painter, a Senior Forensic Scientist at Forensic Science SA, and evidence from Professor Irvine, a pharmacologist. I have relied on the Judge’s findings where appropriate. I do not consider it necessary to set out those findings in full in these reasons. However, the following findings should be set out:
a. Natural and Synthetic
i.      A substance must either be natural or synthetic.
ii.     Methylamphetamine has no natural form so it will always be synthetic.
iii.     There is no one single synthetic form of methylamphetamine, but rather various synthetic forms.
iv.     The precise synthetic form of a sample of methylamphetamine will depend on the particular process of manufacture employed to synthesise the substance.
b. Salt of a substance
i.     A salt of a substance is a single compound which forms when an acid is added to the “base” form of the substance. When this occurs, there is a coordination between particles called cations (positively charged species) and anions (negatively charged species) within the two substances, and the molecules join together like lego blocks. This is not classed as a chemical reaction because there is no loss of any components, it is just two components joining together.
ii.      Methylamphetamine salt is produced from methylamphetamine base, that is, 100 per cent pure methylamphetamine.
iii.Methylamphetamine base exists as an oily liquid at room temperature and is not water soluble. It must be converted into salt form to become water soluble.
iv.The base form of methylamphetamine is thick and may be unsuitable for intravenous use as it would be difficult to inject and might not mix with blood. It is unclear whether it is impossible to inject the oily liquid. It is unclear whether it may be smoked in that form. It may be possible to add it to drinks.
v.Many acids can be used to convey methylamphetamine base into a salt, and the type of acid used will determine what form of methylamphetamine salt is produced. Hydrochloric acid produces methylamphetamine hydrochloride. Sulphuric acid produces methylamphetamine sulphate.
vi.This process is reversible. The two components (the base and the acid components) will separate with the addition of an alkaline material to the salt.
vii.In some cases the two components of the salt will separate if the salt is heated, which occurs for example when methylamphetamine hydrochloride is smoked by a drug user.
a. An isomer of a substance
i.             Isomers describe molecules with the same number of each type of atom but with the atoms arranged differently. Isomers can have different physical and/or chemical properties.
ii.             There are many different types of isomers. Stereoisomers are one category. Structural isomers are another category.
iii.     Stereoisomers
1.There are different types of stereoisomers.
2.A single methylamphetamine molecule within a sample must necessarily be one of two stereoisomers. It will be either the stereoisomer levo-methylamphetamine or the stereoisomer dextro-methylamphetamine, each being a mirror image of the other.
3.If a single molecule is a levo-methylamphetamine isomer, its atoms will be arranged in one way. If it is a dextro-methylampyhetamine isomer its atoms will be arranged another way (the mirror image).
4.A simple analogy is a person’s right hand compared with their left hand – each having the same number of fingers and thumb connected in the same manner to the palm, but each hand being a mirror image of the other.
5.The term dextro-methylamphetamine will also be used to describe a sample (containing many molecules) where the sample is comprised exclusively of dextro-methylamphetamine. The same is the case for the term levo-methylamphetamine.
6.A sample may be made up of a combination of both isomers, levo-methylamphetamine and dextro-methylamphetamine.
7.Because stereoisomers tell us something about the molecules comprising the substance, adding an acid to methylamphetamine base to convert it into a salt will not change the isomers that comprise the methylamphetamine base component. So adding an acid to a sample of methylamphetamine base comprised exclusively of levo-methylamphetamine isomers will simply produce levo-methylamphetamine salt, and likewise for dextro-methylamphetamine.
…
b. Preparation
i.             A preparation is where a substance has been altered to make it more amenable for use.
ii.             An example of a preparation is converting methylamphetamine base into a salt so it can be dissolved and injected.
c. Admixture
i.     “Mixture” can mean a mechanical mixture where there is only a physical interaction between substances, or it can mean a combination of substances where chemical bonding takes place so that there is a chemical as well as a physical interaction.
ii.    “Admixture” refers to the mechanical mixing, where there is only a phycial mixing and no chemical interaction.
iii.A salt is a mixture between the base and the acid, but it is not an admixture because there has been a chemical interaction.
…
e. Methylamphetmine
i.        The meaning of the term “methylamphetamine” will depend on its context.
ii.The base form of methylamphetamine is a form of methylamphetamine. The salt form of methylamphetamine is another form of methylamphetamine.
iii.Methylamphetamine can refer to 100 per cent pure methylamphetamine base, just as “water” in its strict chemical sense can be used to refer to pure H2O with no impurities.
iv.The vast majority of substances that [Forensic Science SA] receive that are found to contain methylamphetamine are in solid form (crystalline or powder). In these cases it is very likely the methamphetamine is present in salt form. Testing to determine whether the substance is in salt or pure form is not routinely conducted by [Forensic Science SA].
v.When [Forensic Science SA] conduct analyses of material and state the weight of the methylamphetamine within the material on the Certificate of Analysis, they do not extract and weigh the methylamphetamine. They weigh the total material and conduct a test to determine the percentage of “methylamphetamine base equivalent”. They then calculate the weight of the methylamphetamine within to the total substance using the total weight of the substance multiplied by the percentage of methylamphetamine base equivalent.
vi.Unless specific further testing is performed [Forensic Science SA] will not unequivocally know whether the methylamphetamine present in the material is present in the base or salt form, or what stereoisomers it is made up of.
vii.The fact that the seized material was of a high purity and presented as a solid at room temperature demonstrates the likelihood that the methylamphetamine in the material was in salt form. The test to determine this was not conducted but I am satisfied that it is very likely the methylamphetamine was in salt form.
viii.It is possible that there were other substances present in the seized material as well as the methylamphetamine base and acid (i.e. either impurities or a cutting agent) but on the evidence it is not known for certain whether or not this is so.
ix.What is certain is (1) methylamphetamine was detected in the seized material, so it was present in some form, and (2) the seized material was not 100 per cent pure methylamphetamine base.
x.Testing to determine what stereoisomers were present was conducted in this case. Exclusively dextro-methylamphetamine was detected in the methylamphetamine base component, though it is possible there was a minor component of levo-methylamphetamine that was not detected.
[Footnotes omitted.]

At the conclusion of his findings, the Judge then summarised the position as follows:
In summary I find that the terms found in the Regulation, in a scientific sense, are not all mutually exclusive. Context determines their meaning.
In summary I find that the seized material was very likely to be in salt form and possibly had additional substances present. Therefore on the evidence there is at least a reasonable possibility the seized material is capable of being described in a number of different ways, including but not limited to the following:
·    The synthetic form of methylamphetamine (existing in a salt preparation)
·    A salt of the synthetic form of methylamphetamine (existing either alone or in an admixture together with impurities or cutting agent)
·    An isomer of the synthetic form of methylamphetamine (existing in a salt preparation)
·    A salt of an isomer of the synthetic form of methylamphetamine (existing either alone or in an admixture together with impurities or cutting agent)
I find that the seized material cannot be described as the synthetic form of methylamphetamine base existing alone.
The Legislative Scheme
Before coming to discuss the issues on appeal, it is convenient to set out the relevant statutory and regulatory provisions.
An appropriate starting point is section 4 of the Controlled Substances Act, which relevantly provides:
commercial quantity[4] of a controlled drug, controlled precursor or controlled plant means—
[4]    This definition had application as at the time of the alleged offending. It has subsequently been amended.
(a)     in relation to a controlled drug contained in a mixture—
(i)a quantity of the drug that equals or exceeds the amount prescribed as a commercial quantity for the drug in its pure form; or
(ii)a quantity of the mixture that equals or exceeds the amount (if any) prescribed as a commercial quantity for any mixture containing the drug; or
(b)     in any other case—a quantity of the drug, precursor or plant that equals or exceeds the amount prescribed as a commercial quantity for the drug, precursor or plant (as the case may be) in its pure form;
…
controlled drug means—
(a)     a drug of dependence; or
(b)     a substance declared by the regulations to be a controlled drug for the purposes of this Act,
but does not include a controlled plant;
…
large commercial quantity[5] of a controlled drug, controlled precursor or controlled plant means—
[5]    This definition had application as at the time of the alleged offending. It has subsequently been amended.
(a)     in relation to a controlled drug contained in a mixture—
(i)a quantity of the drug that equals or exceeds the amount prescribed as a large commercial quantity for the drug in its pure form; or
(ii)a quantity of the mixture that equals or exceeds the amount (if any) prescribed as a large commercial quantity for any mixture containing the drug; or
(b)     in any other case—a quantity of the drug, precursor or plant that equals or exceeds the amount prescribed as a large commercial quantity for the drug, precursor or plant (as the case may be) in its pure form;
…
trafficable quantity[6] of a controlled drug or controlled plant means—
[6]    This definition had application as at the time of the alleged offending. It has subsequently been amended.
(a)     in relation to a controlled drug contained in a mixture—
(i)a quantity of the drug that equals or exceeds the amount prescribed as a trafficable quantity for the drug in its pure form; or
(ii)a quantity of the mixture that equals or exceeds the amount (if any) prescribed as a trafficable quantity for any mixture containing the drug; or
(b)     in any other case—a quantity of the drug or plant that equals or exceeds the amount prescribed as a trafficable quantity for the drug or plant (as the case may be) in its pure form;
…
(2)     A substance is an analogue of another for the purposes of this Act if—
(a)     they both have substantially similar chemical structures; or
(b)     they both have substantially similar pharmacological effects.
(3)Subject to the regulations, an analogue of a controlled drug (not being an analogue that is itself declared by regulation to be a drug of dependence or a controlled drug) is by virtue of this subsection a controlled drug.
…
Another relevant provision in the Controlled Substances Act is section 12(4):
The Governor may, by regulation, declare, individually or by class, any substance that in the Governor's opinion may lead to dependence in humans or is of exceptional danger to humans to be a controlled drug for the purposes of this Act.
Regulation 5(1) of the Controlled Substances (General) Regulations 2000 (SA) provides:[7]
[7] These regulations were in force as at the time of the alleged offending. Their title has subsequently been amended.
Declaration of controlled drugs, controlled precursors and controlled plants
(1) In accordance with section 12(4) of the Act, the following substances are declared to be controlled drugs:
(a)the natural or synthetic form of a substance listed in Schedule 1;
(b)any salt, derivative or isomer of the natural or synthetic form of a substance listed in Schedule 1 and any salt of such derivative or isomer;
(c)any analogue of the natural or synthetic form of a substance listed in Schedule 1 (being an analogue having a substantially similar chemical structure to the substance, but differing in elemental composition due to the addition, deletion or replacement of any substituent element or group);
(d)any homologue of the natural or synthetic form of a substance listed in Schedule 1 (being a homologue differing from the substance by 1 or more carbon containing groups (including methylene groups) in the chemical structure);
(e)any of the substances referred to in a preceding paragraph whether existing alone or in a preparation, admixture, solution or natural substance.
Part 1 of Schedule 1 is headed “Controlled drugs other than drugs of dependence” and relevantly provides:[8]
[8] All references to ‘amphetamine’ have been included.

Large commercial (pure)

Large commercial (mixed)

Commercial (pure)

Commercial (mixed)

Trafficable (mixed)

kg

kg

kg

kg

g

4-Bromo-2,5-dimethoxyamphetamine

0.2

0.05

5

…

N,N-Dimethylamphetamine

…

4,5-Ethylenedioxy-3-methoxyamphetamine

…

Hydroxyamphetamine

5

1.25

6

…

3,4-Methylenedioxyamphetamine (MDA)

0.75

1

0.1

0.5

2

3,4-Methylenedioxymethyl amphetamine (MDMA)

0.75

1

0.1

0.5

2

3,4-Methylenedioxy-N-ethyl amphetamine (MDEA)

0.75

1

0.1

0.5

2

…

Paramethoxyamphetamine (4-Methoxyamphetamine or PMA)

0.75

1

0.1

0.5

2

Paramethoxymethamphetamine (PMMA)

0.75

1

0.1

0.5

2

…

Part 2 of Schedule 1 is headed “Drugs of dependence” and relevantly provides:[9]
[9] All references to ‘amphetamine’ have been included.

Large commercial (pure)

Large commercial (mixed)

Commercial (pure)

Commercial (mixed)

Trafficable (mixed)

kg

kg

kg

kg

g

…

Amphetamine

0.75

1

0.1

0.5

2

…

Dexamphetamine

…

Ethylamphetamine

…

Levamphetamine

Levomethamphetamine

…

Methylamphetamine (Methamphetamine)

0.75

1

0.1

0.5

2

…

Does Regulation 5 operate to declare each substance listed in Schedule 1 to be a single controlled drug, wherein the substance includes any of the forms referred to in Regulation 5 (1) (a)-(e) - Question 1(a).

The Director of Public Prosecutions submitted that the answer to this question should be “yes”. It was contended that Schedule 1 listed each and every controlled drug and that in the case of methylamphetamine, the controlled drug was methylamphetamine and not the salt of methylamphetamine. It was submitted that through regulation 5, the various forms in which a controlled drug may exist had been sought to be addressed. It was said that it did not matter whether the drug was in a natural or synthetic form – regulation 5(1)(a); whether the drug was to be found in the form of a salt – regulation 5(1)(b); whether the drug was to be found within an analogue[10] – regulation 5(1)(c); whether the drug was to be found within a homologue[11] – regulation 5(1)(d); or, whether the drug existed alone or in a preparation, admixture, solution or natural substance – regulation 5(1)(e). As a consequence, it was said that the controlled drug was and remained methylamphetamine and it was not to the point that it was found in the form of methylamphetamine salt.
[10] Analogue is defined in section 4(2) of the Controlled Substances Act 1984 (SA). The District Court Judge made the following finding: “Derivative, Analogue, Homologue … There is a subtle chemical distinction and a degree of overlap between the meanings of these terms in a scientific sense. They are not mutually exclusive terms.” [Footnotes omitted.]
[11] Homologue is defined in the Macquarie Dictionary as: “any member of a homologous series of compounds”. Homologous is defined as “of the same chemical type, but differing by a fixed increment in certain constituents”. Macquarie Dictionary (2012) < > at 20 February 2012.
The listing of the drug in Schedule 1 does not, of itself, make it a controlled drug independent of regulation 5. If this were not the case, the regulation would create controlled drugs additional to those in the Schedule. That does not occur. It is regulation 5 which causes the items in Schedule 1 to be controlled drugs. The relevance of the means of expression in regulation 6 is the assumption within regulation 6 that it is the substance contained in the Schedule that is “the controlled drug”. Regulation 6 assumes that all of the forms referred to in regulation 5 are captured by the entry made in Schedule 1. In my view, it was intended that regulations 5 and 6 are to work in conjunction with each other.
Counsel for the defendant contended that each of the variants in regulation 5 were controlled substances in their own right. It was contended that if the listing of a controlled drug in Schedule 1 were to include any analogues of that of controlled drug, then the listing of four different analogues of methamphetamine and amphetamine in Schedule 1 – namely, 3,4-methylenedioxymethyl amphetamine, paramethoxymethamphetamine, paramethoxyamphetamine (4-methoxyamphetamine) and methylenedioxyamphetamine – would be superfluous. It was said that “methylamphetamine” means a 100 per cent pure methylamphetamine base. It was further said that to suggest that the term “methylamphetamine” has a wider meaning imports ambiguity which must be resolved in favour of the defendant as, it was said, the Controlled Substances Act and its Regulations are penal statutes which should be construed strictly against the Crown.
In my view, the submission of the Director should be accepted and that of the defendant rejected. The scheme of the Act and the Regulations are clear. The Act, inter alia, seeks to control the use of non-prescribed drugs that have capacity to cause harm to the human body. It seeks to do this both through prohibiting personal use and trafficking. Heavy penalties attach to commercial dealings in drugs.
The Act addresses controlled drugs and provides for the identification of controlled drugs in the Regulations. This is given effect to through regulation 5 and Schedule 1. I consider that the evident intent was to identify each of the drugs to be controlled drugs through their listing in the Schedule. The Schedule went further and listed the amount of those drugs that would lead to presumptions concerning commercial dealings and in particular, under the headings “Large commercial (pure)”, “Large commercial (mixed)”, “Commercial (pure)”, “Commercial (mixed)” and “Trafficable (mixed)”.
Regulation 5 then addresses the forms in which the controlled drugs may be found. The purpose of regulation 5 is to ensure that the controlled drug in whatever form it may be found is the subject of the legislative regime. This is made clear in the case of the salt of a substance specified in the Schedule by the terms of regulation 5(1)(b). Read in this way, there is no difficulty in the interpretation and application of regulation 5. I reject the submission that regulation 5 was designed to create further controlled drugs separate to the drugs listed in Schedule 1.
I would answer question 1(a) as follows: “Yes”.
Does the prescribed quantity for “Commercial (pure)”, listed alongside “methylamphetamine” in Schedule 1 apply to methylamphetamine existing in a “preparation, admixture or solution” wherein the preparation is the salt of methylamphetamine - Question 1(b)(ii)
It is convenient to address question 1(b)(ii) before addressing question 1(b)(i). The Director contended that this question should be answered “yes”. The Director submitted that the methylamphetamine base is converted to a salt to make it easier to inject. It was said that the conversion of methylamphetamine to methylamphetamine salt is for the purpose of making it usable or in effect, preparing it for use.
Counsel for the defendant submitted that there is no evidence that the commercial quantity for methylamphetamine, or any controlled drug, would be appropriate for all of its salts, derivatives and isomers. It was said that some isomers of methylamphetamine may be pharmacologically inactive and that in those circumstances, it would be illogical to apply a single commercial quantity to all isomers of methylamphetamine. It was further said that it is evident from Schedule 1 that some isomers or analogues of a controlled drug do have different commercial quantities.
In my view, the defendant’s contentions should be rejected. The District Court Judge made a finding that “[a] preparation is where a substance has been altered to make it more amenable for use”. The Judge went further and found that “[a]n example of a preparation is converting methylamphetamine base into a salt so it can be dissolved and injected”. Further, it is evident that the word preparation is used as a noun in regulation 5(1)(e). In my view, the whole point of mixing methylamphetamine with an acid to form a salt was to create a preparation that would allow the controlled drug, methylamphetamine, to be used in the human body.
I would answer question 1(b)(ii) as follows: “Yes”. I would add the rider that it would be necessary for the prosecution to establish the quantity of methylamphetamine existing in the salt of methylamphetamine; that is, ascertain the quantity of the pure methylamphetamine.
Does the prescribed quantity for “Commercial (pure)”, listed alongside “methylamphetamine” in Schedule 1 apply only to methylamphetamine in its base form - Question 1(b)(i)
Regulation 6 addresses, inter alia, the prescribed quantities of controlled drugs. Sub-regulations 3 and 4 address the definition of “commercial quantity” and provide as follows:[12]
(3)For the purposes of the definition of commercial quantity in section 4(1) of the Act, the quantity of a particular controlled drug, controlled precursor or controlled plant prescribed as a commercial quantity of the drug, precursor or plant in its pure form is—
(a)     in the case of a controlled drug—the amount (if any) listed in the column headed "Commercial (pure)" of the tables in Part 1 or 2 of Schedule 1 opposite the entry listing the controlled drug; or
(b)     in the case of a controlled precursor—the amount (if any) listed in the column headed "Commercial (pure)" of the table in Schedule 2 opposite the entry listing the controlled precursor; or
(c)     in the case of a controlled plant—the amount (if any) listed in the column headed "Commercial" of the tables in Part 1 or 2 of Schedule 3 opposite the entry listing the controlled plant.
(4)For the purposes of the definition of commercial quantity in section 4(1) of the Act, the quantity of a mixture containing a particular controlled drug prescribed as a commercial quantity for any mixture containing the controlled drug is the amount (if any) listed in the column headed "Commercial (mixed)" of the tables in Part 1 or 2 of Schedule 1 opposite the entry listing the controlled drug.
[12] This regulation had application as at the time of the alleged offending. It has subsequently been amended.
Regulation 6 relevantly provides that in the case of a controlled drug, the quantity of that particular controlled drug prescribed as a commercial quantity of that drug in its pure form is the amount listed in the column headed “Commercial (pure)” of the tables in Part 1 or 2 of Schedule 1 opposite the entry listing the particular controlled drug. So in the case of the controlled drug, methylamphetamine, the relevant entry is in Part 2 of Schedule 1 and the relevant entry listed under the heading “Commercial (pure)” is 0.1 of a kilogram which is otherwise expressed as 100 grams.
Question 1(b)(i) raises for consideration as to what is meant by the word “methylamphetamine” as listed in Schedule 1 and in particular, whether it is a reference solely to methylamphetamine in its base form. It should be noted immediately that the description “base form” is not to be found in the Controlled Substances Act or the Regulations made under that Act.
The answer to this question depends on the meaning given to the term “base form”. If “base form” is a reference to methylamphetamine when it exists as an oily liquid at room temperature then, in light of my reasons set out above, I would answer this question “no”. If “base form” is a reference to pure methylamphetamine existing either alone or in a preparation, solution or admixture then, in light of my reasons set out above, I would answer this question “yes”.
I consider that the Controlled Substances Act envisages that the pure quantities prescribed in the Schedule to the Regulations will have application notwithstanding that the pure form is to be found in a preparation, admixture or solution within the meaning of regulation 5. It is to be noted that the word “pure” is not defined in the Act or the Regulations. The word pure only has relevance in the context of the weight of the controlled drug required to satisfy the elements of section 32(1) as a large commercial quantity or section 32(2) as a commercial quantity.
In the case of methylamphetamine salt, the reference to “pure” is a reference to the weight of the methylamphetamine in the preparation, not the total weight of the salt. In a particular case, if a calculation can be made of the pure weight of the controlled drug the subject of the charge, then regard can be had to Schedule 1 to ascertain whether there is trafficking in a commercial quantity or a large commercial quantity of that controlled drug.
I consider that there is ambiguity in the expression “base form”. I would resolve that ambiguity by treating the expression to mean methylamphetamine when it exists as an oily liquid at room temperature. I would answer question 1(b)(i) as follows: “No”.
If Regulation 5 creates separate and distinct controlled drugs, is the information, which changes Trafficking in a Commercial Quantity of a Controlled Drug and particularises a substance listed in Schedule 1, but which also particularises in the alternative various forms of the substance listed in Schedule 1, bad for duplicity or uncertainty - Question 2
As noted earlier, in my view, Regulation 5 does not create separate and distinct controlled drugs. Accordingly, it is not necessary to answer this question. However, I intend to address it briefly.
The Director contended that question 2 should be answered “no”. It was submitted that the information is not bad for duplicity or uncertainty on the basis that on the evidence before the Court, the substance seized by police could be described as any one of the particulars given in the count on the Information and that they are alternative ways of describing the same item. In support of this submission, the Director highlighted the following evidence. First, the vast majority of substances that are analysed by Forensic Science SA are in a solid form. Secondly, the Judge found it to be “very likely” that the substance seized from the defendant was methylamphetamine in salt form. Thirdly, the analysis performed on the substance was not able to determine whether there were any other substances, such as a cutting agent, in the items seized from the defendant.

The Director submitted that duplicity occurs when a single count purports to charge more than one offence within that single count or, when the evidence led in support of one count reveals the commission of more than one offence each of which could be the offence referred to in that count. The Director drew the Court’s attention to the principle that a count may only charge one offence.[13]
[13] S v The Queen (1989) 168 CLR 266 was cited by the Director.
In determining whether there is duplicity, the ultimate question is whether there is an unfairness to the defendant.[14] Duplicity must cause prejudice before the Court will act on it.[15]
[14] R v Dawson-Ryan (2009) 104 SASR 571, [113].
[15] R v Dawson-Ryan (2009) 104 SASR 571, [112].
The Director contended that the fact that the substance can be described in a number of forms all of which are controlled drugs indicates that there is no prejudice or unfairness to the defendant. It was said that it is the fact that the different substances all relate to the one substance that is determinative. In such a case where the evidence is that the defendant was in possession of all of the substance or none of it and where each of the particulars are related to the same substance, it was said that there can be no unfairness.
Counsel for the defendant submitted that it is crucial for the information to state which isomer of methylamphetamine is being charged given that at least one isomer of methylamphetamine does not have a commercial quantity. Accordingly, it was said that the count on the information is bad for duplicity.
In my view, the Director’s submissions should be accepted. The amended information relates only to the one offence. The particulars cause no unfairness to the defendant. Accordingly, were it necessary for me to answer this question, I would answer it as follows: “No”.
Conclusion
For the reasons given, I would provide the following answers to each of the questions.

Question

Answer

1.    Is the defendant liable at law to be found guilty of the offence charged on the information, namely “Trafficking in a Commercial Quantity of a Controlled Drug”, notwithstanding that there is a reasonable possibility the substance allegedly possessed by him was in salt form and is therefore capable of being described in a number of different ways, including but not limited to the following:

The synthetic form of methylamphetamine (existing in a salt preparation)

A salt of the synthetic form of methylamphetamine (existing either alone or in an admixture together with impurities or cutting agent)

An isomer of the synthetic form of methylamphetamine (existing in a salt preparation)

A salt of an isomer of the synthetic form of methylamphetamine (existing either alone or in an admixture together with impurities or cutting agent)

but could NOT be described as:

The synthetic form of methylamphetamine base existing alone.

Specifically:

a.     Does Regulation 5 operate to declare each substance listed in Schedule 1 to be a single controlled drug, wherein the substance includes any of the forms referred to in Regulation 5 (1) (a)-(e).

b.    Does the prescribed quantity for “Commercial (pure)”, listed alongside “methylamphetamine” in Schedule 1:

i.     apply only to methylamphetamine in its base form;

ii.    apply to methylamphetamine existing in a “preparation, admixture or solution” wherein the preparation is the salt of methylamphetamine.

2.    If Regulation 5 creates separate and distinct controlled drugs, is the information, which changes Trafficking in a Commercial Quantity of a Controlled Drug and particularises a substance listed in Schedule 1, but which also particularises in the alternative various forms of the substance listed in Schedule 1, bad for duplicity or uncertainty.

Yes.

No.

Yes.

Regulation 5 does not create separate and distinct controlled drugs. However, if it were to create separate and distinct controlled drugs, the answer to this question would be “No”.

STANLEY J: I would answer the questions in the way proposed by Doyle CJ. I agree with the reasons of the Chief Justice.

Large commercial (pure)	Large commercial (mixed)	Commercial (pure)	Commercial (mixed)	Trafficable (mixed)
kg	kg	kg	kg	g
4-Bromo-2,5-dimethoxyamphetamine	0.2	0.05	5
…
N,N-Dimethylamphetamine
…
4,5-Ethylenedioxy-3-methoxyamphetamine
…
Hydroxyamphetamine	5	1.25	6
…
3,4-Methylenedioxyamphetamine (MDA)	0.75	1	0.1	0.5	2
3,4-Methylenedioxymethyl amphetamine (MDMA)	0.75	1	0.1	0.5	2
3,4-Methylenedioxy-N-ethyl amphetamine (MDEA)	0.75	1	0.1	0.5	2
…
Paramethoxyamphetamine (4-Methoxyamphetamine or PMA)	0.75	1	0.1	0.5	2
Paramethoxymethamphetamine (PMMA)	0.75	1	0.1	0.5	2
…