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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Elrayes

Details

AGLC: R v Elrayes [2012] SASCFC 28
Case: [2012] SASCFC 28
Decision Date: 30 March 2012

CaseChat Overview and Summary

In the Supreme Court of South Australia, the Full Court considered questions of law reserved by a District Court Judge concerning a charge against Ayman El Amir Mohammed Elrayes. Elrayes was accused of trafficking in a commercial quantity of a controlled drug, specifically methylamphetamine, or its salt, isomer, or salt of an isomer, contrary to section 32(2) of the *Controlled Substances Act 1984* (SA). The dispute centred on the interpretation of technical terms within Schedule 1 of the Act and Regulation 5 of the *Controlled Substances (General) Regulations 2000* (SA), which define controlled drugs and their various forms.

The legal issues before the Full Court involved the construction and interpretation of these technical terms, particularly how they applied to the definition of a "controlled drug" and the determination of a "commercial quantity" for the purposes of the trafficking offence. Specifically, the court was asked to clarify whether different forms of methylamphetamine, such as its synthetic form, pure form, base form, or salt form, constituted separate controlled drugs or were simply different manifestations of the same controlled drug, methylamphetamine. The court also had to determine how the quantity specified for a "commercial" amount in Schedule 1 applied to these various forms.

The Full Court, adopting reasoning from a previous decision in *R v Willingham*, held that Regulation 5(1) of the *Controlled Substances (General) Regulations 2000* does not create separate controlled drugs for each named form of a substance listed in Schedule 1. Instead, it treats each named form as the same controlled drug. Therefore, methylamphetamine in its synthetic, pure, base, or salt form is all considered methylamphetamine. The court further clarified that the quantity listed as "Commercial (pure)" in Schedule 1 applies to methylamphetamine in its pure or base form, as well as to preparations, admixtures, solutions, and all other forms listed in Regulation 5(1). This means that if the relevant form of methylamphetamine contains the specified amount in its pure form, it constitutes a commercial quantity.

The Full Court answered Question 1.a in the affirmative, confirming that each named form of methylamphetamine is correctly described as the controlled drug methylamphetamine. For Questions 1.b.i and ii, the court ruled that the "Commercial (pure)" quantity applies to methylamphetamine in its pure or base form, and also to methylamphetamine present in any of the forms listed in Regulation 5(1). Question 2 was deemed unnecessary to answer.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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. 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 20th 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.

Ratio Decidendi

Legal Principle Established

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