R v Peart; R v Sorokin

Case •

[2015] NSWCCA 321

•

16 December 2015

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: R v Peart; R v Sorokin [2015] NSWCCA 321
Hearing dates:4 December 2015
Date of orders: 16 December 2015
Decision date: 16 December 2015
Before: Ward JA at [1];
R A Hulme J at [61];
Fagan J at [62]
Decision:

(1)   Allow the appeal.
(2)   Set aside the order made by Toner SC DCJ on 9 September 2015 quashing counts 1 and 2 on the indictment presented against Kylie Anne Peart and Daniel Alexander Sorokin on 8 September 2015.

Catchwords:

CRIMINAL LAW – appeal against quashing of two counts on an indictment – commonwealth drug offences – quashed counts charged offences of importing controlled drug, being a drug analogue of a listed border controlled drug – third count charge offence of trafficking same drug, being a listed controlled drug – whether s 301.9(2) of the Criminal Code (Cth) means that if a substance is listed as a controlled drug for the purposes of manufacturing and trafficking offences then it cannot be an analogue of a border controlled drug for the purposes of import and export offences

 

STATUTORY INTERPRETATION – Criminal Code (Cth) s 301.9(2) – ordinary meaning of words

  WORDS AND PHRASES – “or” – whether should be read distributively
Legislation Cited: Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB
Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth)
Criminal Appeal Act 1912 (NSW), s 5C
Criminal Code 1995 (Cth), ss 11.2A, 300.2, 301.1, 301.4, 301.9, 302.4, 307.3
Criminal Code Regulations 2002 (Cth)
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Poulakis (No 3) [2015] ACTSC 191
Re Bolton; Ex Parte Beane [1987] HCA 12; (1987) 162 CLR 514
Re the Minister for Works; ex parte Duffy [2002] WASCA 295
Saeed v Minister of Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Category:Principal judgment
Parties: Regina (Appellant)
Kylie Anne Peart and Alexander Daniel Sorokin (Respondents)
Representation:

Counsel:

R v Sorokin
Mr R J Bromwich SC/Mr A Williams (applicant)
Mr E Ozen (respondent)

R v Peart
Mr R J Bromwich SC/Mr A Williams (applicant)
Mr R C Pontello (respondent)

 

Solicitors:

  Commonwealth Director of Public Prosecutions (Appellant)
Bongarzoni Legal (Respondent Peart)
Benjamin & Leonardo Criminal Defence (Respondent Sorokin)
File Number(s):2014/00168274 and 2014/00168297 (Peart);2014/00168324 and 2014/00168357 (Sorokin)
Publication restriction:Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
09 September 2015
Before:
Toner SC DCJ
File Number(s):
2014/00168274 and 2014/00168297 (Peart)
2014/00168324 and 2014/00168357 (Sorokin)

Judgment

  1. WARD JA: The respondents (Kylie Anne Peart and Alexander Daniel Sorokin) were charged in 2014 with three counts of drug-related offences relating to the alleged importation of, and trafficking in, a controlled drug (3,4 – methylenedioxymethcathinone) (“MDMC”). The importation was alleged to have occurred through the post.

  2. On 10 June 2014, the respondents waived their right to committal. The trial commenced in the District Court on 8 September 2015. Each of the respondents pleaded not guilty.

  3. Relevantly, the first two counts on the indictment presented against the respondents charged that, contrary to s 307.3(1) of the Criminal Code (Cth) (“the Code”) with s 11.2A(1) of the Code, between about 13 March 2013 and 5 June 2013 at Sydney, in the State of New South Wales, they did jointly commit an offence, in that they imported “a border controlled drug, namely 3,4-methylenedioxymethcathinone, a drug analogue of the border controlled drug Methcathinone”. The remaining (third) count on the indictment was a charge relating to an alleged offence of trafficking in MDMC on or about 3 July 2013, contrary to s 302.4(1) with s 11.2A(1) of the Code.

  4. The Crown prosecutor quite properly raised as a preliminary issue the question whether counts 1 and 2 on the indictment (the importation offences) were sustainable having regard to the operation of s 301.9(2) of the Code, following amendments to the legislation which had taken effect on 28 May 2013. He accepted that if the construction given to that provision by Murrell CJ in the Supreme Court of the Australian Capital Territory in R v Poulakis (No 3) [2015] ACTSC 191 were correct then there was no question but that counts 1 and 2 on the indictment should be quashed.

  5. The issue for determination by the trial judge was whether MDMC (itself a listed controlled drug under the Criminal Code Regulations 2002 (Cth) (“the Regulations”)) was, by reason of its listing as a controlled drug, not capable of being a “drug analogue” of the border controlled drug Methcathinone. The trial judge heard submissions on that issue and the following day published his reasons for concluding that the answer to that question was that MDMC was not, as a listed controlled drug, capable of being a drug analogue of Methcathinone. His Honour proceeded to quash the relevant counts on the indictment and vacated the hearing to allow for the bringing of a foreshadowed appeal to this Court by the Commonwealth Director of Public Prosecutions pursuant to s 5C of the Criminal Appeal Act 1912 (NSW).

Legislative provisions

  1. The legislative scheme in relation to cross-border drug importation/exportation offences and domestic trafficking offences is to be found in Pt 9.1 of the Code and the Regulations. As the drugs in question were intercepted on 5 June 2013, the Crown submits, and the respondents appear to have accepted, that the applicable version of the Code is that which includes the amendments introduced into Pt 9.1 by the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth), which took effect from 28 May 2013.

  2. Broadly speaking, under the Code there are separate offences in relation to the cross-border importation of proscribed “border controlled drugs” (s 307.3) and in relation to the domestic trafficking in and manufacturing of proscribed “controlled drugs”. The terms “border controlled drug” and “controlled drug” are separately defined in s 300.2 by reference to the meaning given to those terms in separate sections (s 301.4 and 301.1 respectively).

  3. The meaning statutorily attributed to those terms is in broadly identical terms and includes in each case both a drug listed by a regulation as a border controlled drug (in the case of s 301.4) or listed as a controlled drug (in the case of s 301.1) and a drug analogue of a listed border controlled drug or listed controlled drug as the case may be. As indicated by the meaning attributed to the terms, there are separate lists in the Regulations of border controlled drugs (to which the cross-border import/export offences apply) and controlled drugs (to which the domestic trafficking/manufacturing offences apply). There is a single provision ascribing statutory meaning to the term “drug analogue” (s 301.9).

  4. So, by way of example, in the context of offences relating to border controlled drugs (i.e., the offences the subject of counts 1 and 2 on the indictment), the text of the relevant provisions is as follows.

  5. “Border controlled drug” is defined in s 300.2 by reference to s 301.4, which provides that:

301.4   Meaning of border controlled drug

For the purpose of this Part, a border controlled drug is a substance, other than a growing plant, that is:

(a)   listed by a regulation as a border controlled drug; or

(b)   a drug analogue of a listed border controlled drug; or

(c)   determined by the Minister as a border controlled drug under section 301.13 (which deals with emergency determinations of serious drugs).

Note 1:   Some conditions must be satisfied before:

(a)   a regulation can be made for paragraph (a) (see section 301.7); or

(b)   a determination can be made for paragraph (c) (see subsection 301.8(2)).

Note 2:   For the meaning of drug analogue, see section 301.9.

  1. Section 301.9 gives the following meaning of drug analogue (applicable to both the controlled drug offences and the border controlled drug offences):

301.9   Meaning of drug analogue

(1)   For the purposes of this Part, a substance is a drug analogue of a listed controlled drug, or a listed border controlled drug, if the substance is of any of the following in relation to the listed drug (or in relation to a primary analogue of the listed drug), however the substance is obtained:

(a)   one of the following (a primary analogue):

(i)   a stereoisomer;

(ii)   a structural isomer having the same constituent groups;

(iii)   an alkaloid;

(b)   a structural modification obtained by the addition of one or more of the following groups:

…

(c)   a structural modification obtained in one or more of the following ways:

…

(d)   any other homologue, analogue, chemical derivative or substance substantially similar in chemical structure.

(2)   However, a drug analogue does not include a substance that is itself a listed controlled drug or a listed border controlled drug.

  1. In lay terms, drug analogues are substances very similar but not identical in chemical composition to listed proscribed drugs.

  2. Relevantly, for present purposes, Methcathinone is both a listed controlled drug (Item 159, Schedule 3 of the Regulations) and a listed border controlled drug (Item 119, Schedule 4 of the Regulations) whereas MDMC is a listed controlled drug (Item 177, Schedule 3 of the Regulations) but not a listed border controlled drug.

  3. The issue of statutory interpretation that arises in this appeal is whether, on the proper construction of s 301.9(2) of the Code, the fact that MDMC is listed as a controlled drug (for the purpose of the domestic manufacturing and trafficking offences) means that it is excluded from the definition of a drug analogue of the border controlled drug Methcathinone (and hence is not within the ambit of the cross-border import and export offences).

Legislative history

  1. Before the amendments to Pt 9.1 of the Code which took effect in May 2013, there were, as there are now, separate lists of controlled drugs (in the now repealed s 314.1 of the Code) and of border controlled drugs (in the now repealed s 314.4 of the Code). Each list contained a separate provision extending that list to cover drug analogues of the listed drugs (ss 314.1(2) and 314.4(2) respectively). The definition of drug analogue in each of ss 314.1(2) and 314.4(2) was identical. In each case once a substance was listed (as a controlled drug or border controlled drug, as the case may be) it was no longer a drug analogue for that list. There was, however, nothing to preclude a listed controlled drug (or listed border controlled drug) being a drug analogue of a listed drug on the other list.

  2. There is therefore no dispute that, prior to the relevant amendments, if a drug analogue of a border controlled drug was listed in its own right as a border controlled drug that did not have the effect that the substance could no longer be a drug analogue of a controlled drug, and vice versa.

  3. On and from 28 May 2013, the effect of the amendments to the Code was that the separate lists of controlled drugs and of border controlled drugs hitherto found in s 314 of the Code were moved into the Regulations, no doubt for ease of amendment to the content of the respective lists from time to time. Section 314 was repealed and the definitions of border controlled drugs and controlled drugs, respectively, formerly found in s 314 were amended and inserted into ss 301.4 and 301.1.

  4. Following the May 2013 amendments there continued to be two separate lists, of controlled drugs and of border controlled drugs respectively, albeit now contained in the Regulations. However, there is now only a single provision giving the meaning of a drug analogue (that being s 301.9).

  5. The Crown refers to statements made in the Explanatory Memorandum to the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012 (Cth) that s 301.9 was to replace the existing drug analogue provisions in ss 314.1(2) and 314.4(2) of the Code and that s 301.9(2) “is consistent with the existing provisions for drug analogues in the Criminal Code”.

  6. The Crown submits that the amendments were designed to favour flexible responses to new and emerging substances; that the purpose of the provisions was to strengthen the framework of the drug laws with a view to being effective in inhibiting the illicit drug trade; that there was no stated intention to alter the former provisions even though the drug analogue definition was altered; and that the definitions of controlled drug and border controlled drug were newly defined expressly to include in the definition of each the concept of an analogue of a listed controlled drug or border controlled drug, respectively.

Submissions

Crown

  1. The Crown’s primary position is that, read in context with s 301.9(1), s 301.9(2) is to be construed such that a drug analogue of a listed controlled drug does not include a substance that is itself a listed controlled drug and a drug analogue of a listed border controlled drug does not include substance that is itself a listed border controlled drug.

  2. In other words, it argues that the word “or” in s 301.9(2) is to be read distributively. The Crown thus submits that the presence of a substance on one list continues (as was the case prior to the amendments) to have no bearing on its status as a drug analogue of a substance appearing on the other list.

  3. The Crown acknowledges that in construing the legislation the Court must begin with the text of the statute and that the clear meaning of the text cannot be displaced by extrinsic material or historical considerations (referring to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27) but says that the ordinary and grammatical sense of the word “or”, having regard to its context and the relevant legislative purpose, means that s 301.9(2) has the meaning for which it contends. The Crown submits that the legislative intent is clear when proper regard is had to the context in which s 301.9(2) appears and that the use of “or” plainly refers to what are still two entirely separate lists of proscribed drugs in respect of two separate classes of offences.

  4. Reliance is placed on the recognition in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at [69]-[70]) that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute and that a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.

  5. The Crown’s alternative argument, if its primary contention not be accepted, is that there is an overriding obligation on the Court, reinforced by ss 15AA and 15AB(1)(b)(ii) of the Acts Interpretation Act 1901 (Cth) to interpret the legislation in a way that makes sense (citing Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318 (at [44], per Basten JA, Gleeson and Leeming JJA agreeing) and Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 (at 320-321)).

  6. The Crown argues that there is no logical reason for the change in the way in which the drugs were listed (i.e., in the Regulations rather than the Code), with corresponding machinery changes being made for the definition of drug analogues, to make any difference as to what it is illegal to import (on the one hand) or to traffic in or manufacture domestically (on the other). It submits that on no rational view could it have been the intention of the legislature to create an interaction between the two lists that had never existed before and, in so doing, to legalise the importation of dangerous substances which it is still illegal to manufacture or to traffic in domestically.

  7. In this regard, the Crown says that, on the interpretation accepted by the trial judge, there are now some 55 substances listed as controlled drugs that “overnight” have become legal to import because they are no longer drug analogues of border controlled drugs. The absurdity of the construction for which the respondents contend, and which his Honour accepted, is that a drug which it is illegal to manufacture or traffic in within Australia can now be imported into the country with impunity.

The respondents

  1. The respondents, each of whom was separately represented in this Court and before the trial judge, maintain that the construction contended for by the trial judge is correct.

  2. Counsel for Ms Peart, Mr Pontello, submits that the ordinary and grammatical sense of the relevant words in s 301.9(2), having regard to their context and the legislative purpose of the amending legislation is as his Honour found. Emphasis is placed on the recognition in Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 340 that “those who are subject to the law’s commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage”.

  3. Mr Pontello notes that the stated purpose of the amending legislation was to strengthen the Commonwealth’s serious drug offences framework and to ensure that the framework remains up to date and effective in combating the illicit drug trade. He points out that the amending legislation greatly increased the number of different substances listed as controlled drugs (from 15 to 249), noting that the stated purpose of so doing was to permit certain substances covered by the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, or drug analogues of those substances, to be treated as controlled drugs. He also notes that there was no similar statement of purpose in relation to the (lesser in number) increase in the substances listed as border controlled drugs. From this, it is suggested that the legislature may have decided to place greater emphasis on drug trafficking than on drug importing. (It is also suggested by Mr Pontello that “mere importation, without more, of narcotic drugs or psychotropic substances has little detrimental effect on the community” and that the “real evil” lies in its sale, distribution and consumption.)

  4. Reliance is placed (both by Mr Pontello and by Counsel for Mr Sorokin, Mr Ozen) on the existence of the separate (not identical) lists of controlled drugs and border controlled drugs. Mr Pontello submits, hardly controversially, that it is for Parliament to determine those substances that it will be illegal to import and those (not necessarily identical) substances in which it will be illegal to traffic. He notes that had the legislature intended the lists to be identical it would presumably have included a single list of substances with respect to border controlled and controlled drugs.

  5. Mr Pontello submits that the text of the subsection, as construed by the trial judge, does not lead to a result that is absurd or unreasonable. In that regard, reference is made to two matters: the highly scientific and broad compass of the definition of drug analogue and the broad terms of the definition of “traffics”.

  6. As to the scientific nature of the definition of drug analogue, Mr Pontello submits that the legislature recognised that certain substances will be a drug analogue of two or more listed serious drugs (referring to ss 301.10, 301.11 and 301.12 of the Code). He submits that, absent expert scientific evidence, the Court should exercise caution in reaching any conclusion that, as a result of the enactment of the amending legislation, it ceased to be illegal to import a large number of substances (as the Crown has submitted) . It is postulated, for example, that the drug the subject of counts 1 and 2 on the indictment may be a drug analogue of a border controlled drug not appearing on the list of controlled drugs and that scientific opinion may differ on this.

  1. As to the breadth of the definition of “traffics”, which includes mere possession with the intent of selling any of the substance (s 302.1(1)(e)), it is submitted that there will be many cases where it will be possible to prosecute an offender for trafficking a controlled drug that the offender imported even though, because of s 301.9(2), the offender could not be guilty of an importation offence. Mr Pontello notes in this regard that the maximum penalties for trafficking in a controlled drug are the same as for importing a border controlled drug for any given quantity.

  2. Mr Pontello accepts that consideration of the extrinsic material referred to by the Crown would be permitted if the Court is of the view that the ordinary meaning of s 301.9(2) leads to an unreasonable result but submits that nothing in that material warrants any change to the ordinary meaning of the words used in the legislation. In that regard, he submits that concepts such as similarity and consistency do not equate to the provisions in question being the same.

  3. In essence, Mr Pontello argues that the meaning contended for by the Crown requires the impermissible reading of words into the statute. He submits that it is not for the Court to “extend” a statute merely because (if that be the case) the Court accepts that the legislature has acted inadvertently and produced an unintended consequence; and that this is particularly so where the issue of the liberty of the subject is at stake. It is submitted that the purposive approach to the construction of a statute does not justify expanding the scope of a criminal offence beyond its textual limits. Reference is made in this regard to what was said in Re Bolton; Ex Parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ.

  4. Reference is also made to Saeed v Minister of Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 where French CJ, Gummow, Hayne, Crennan and Kiefel JJ said (at [31]):

Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.

  1. Ultimately, the position of Ms Peart is that the words of the section do not permit a construction other than that reached by the trial judge and that it is not sufficient to point to the general purpose of the legislation at the expense of the actual text of the legislation, the latter being controlling in the task of statutory construction.

  2. Mr Ozen adopts the submissions made on behalf of Ms Peart and argues that the Crown’s position constitutes an invitation to “a radical degree of judicial activism” which would represent “an unwarranted encroachment on the prerogative of the legislature” in order to “fix” a problem or assume that the legislation reads in the way the Court might think preferable.

  3. Emphasis is placed on the existence of the two separate lists as compelling a conclusion that the legislature envisaged situations where it would be illegal to deal with a particular drug in one way but not in another way.

  4. As a textual matter, Mr Ozen submitted that there is significance in the use of commas in s 301.9(1), and their absence in s 301.9(2), as indicating that the legislature had not overlooked the existence of separate lists. It is submitted that the legislative intention disclosed by subsection (2) is that there should be uniformity between controlled and border controlled drugs as to what constitutes an analogue; i.e., that the definition of an analogue covers the same listed drugs with respect to controlled or border controlled drugs.

Crown’s response

  1. In response to the submission made for Ms Peart as to the lack of any scientific expert opinion, the Crown sought leave at the hearing to read an affidavit sworn 2 December 2012 of Nathan Green, to provide expert evidence to support the proposition that the effect of his Honour’s interpretation was that it has ceased to be illegal to import 55 substances (including MDMC). That affidavit was read, over the objection of Mr Ozen on the basis that it could have been adduced at the hearing before the trial judge. It was submitted by Mr Ozen that in any event it did not address the issue raised against the Crown’s absurdity argument. It is not necessary to rely on the information provided in this affidavit for the conclusion I have reached as to the proper construction of the provision.

  2. As to the propositions put for Ms Peart that the Crown is asking the Court to extend or expand the legislation and for Mr Sorokin that a radical degree of judicial activism is being invited, the Crown emphasises that its primary position is that the ordinary meaning of the section, read in context and with regard to its legislative purpose, is that for which the Crown contends. The Crown points out that so reading s 301.9(2) does not involve an “expansion” of the list of prohibited drugs; rather, that section operates as a machinery provision being an exception to a definition. The Crown emphasises that the only change being made by the introduction of the amending legislation was to the pathway by which the illegal nature of a substance may be proved (by comparison with a listed controlled or border controlled drug if the substance is a drug analogue or by reference to the list once the substance was listed in its own right).

  3. Finally, insofar as reference was made in the respective respondents’ submissions to the effect that it was for Parliament to rectify any inadvertent consequences of the amending legislation, the Crown noted that the legislature is presently moving to amend the legislation in order to address the construction that has been placed on the legislation but did not suggest that this was a matter that could affect the interpretation to be placed on the legislation as it currently stands. I have not taken that into account.

Determination

  1. There can be little doubt but that, when s 301.9(2) is read in isolation, the ordinary meaning of the words of the section (“does not include a substance that is itself a listed controlled drug or a listed border controlled drug”) would be that for which the respondents contend. However, there is also no doubt that the subsection must be read in context.

  2. Once s 301.9(2) is read with s 301.9(1), its meaning must be that for which the Crown contends. There are two textual reasons for that conclusion.

  3. First, the term a “drug analogue” in the opening words of s 301.9(2) clearly imports the meaning given to that term in s 301.9(1), in which a clear distinction is drawn between a drug analogue of a listed controlled drug and a drug analogue of a listed border controlled drug.

  4. Section 301.9(2) is therefore addressing an exception to the definition of “drug analogue” for two separate purposes: the definition of “a listed border controlled drug” and the definition of a “listed controlled drug”. That indicates that a distributive reading should be accorded to the two types of listed drugs that are linked by the word “or” in that subsection.

  5. Second, there is the repetition of “listed” before each of “controlled drug” and “border controlled drug”. That makes clear that the focus is on two separate lists of drugs.

  6. I accept that the absence of commas in the phrase “itself a listed controlled drug or a listed border controlled drug” as it appears in s 301.9(2), in contrast with the use of commas in the corresponding phrase in s 301.9(1) could indicate that the draftsperson was not drawing such a distinction. However, the clear separation between a listed controlled drug and a listed border controlled drug at the commencement of s 301.9(1), when incorporated by way of the definition into the introductory words of s 301.9(2), suggests to me that rather than incorporating a further unwieldy definition into the subsection the draftsperson was using the concluding words of that subsection as a shorthand reference back to the relevant applicable list.

  7. The maintenance of separate and distinct listed drugs for the separate and distinct offences contextually supports the Crown’s interpretation. Such a construction is also supported by reference to the logic discernible in the exclusion of a drug analogue that has become a listed drug from the definition of the particular list in question. In other words, it makes sense that if a drug analogue of, say, a controlled drug is placed on the list of controlled drugs (relevant for the purposes of the domestic trafficking/manufacturing offences) it will cease to be a drug analogue for that class of offence. There could no longer be a need for it to be specified as a drug analogue once it was so listed. However, the same logic does not apply to the exception of a substance that becomes a listed controlled drug from the definition of a drug analogue of a substance on the other and separate list of drugs (for a separate class of offence). I agree with the Crown’s submission that there is simply no logical reason to assume that the legislature intended, by adopting a single definition of drug analogue, that the effect of listing a drug on the list for one class of offences would be that it could no longer be a drug analogue of a substance on the other list for the purpose of an entirely different class of offence.

  8. I agree that it is not permissible for a court, by a process of statutory interpretation in effect to substitute its own view of what should be the preferable ambit of legislation or to take it upon itself to re-write legislation in a way that corrects what is thought to be an inadvertent consequence of infelicitous language in a statute. However, it has been noted (albeit in other contexts) that the word “or” can be read in different senses (disjunctive, conjunctive or a hybrid thereof) (see for example the discussion in Re the Minister for Works; ex parte Duffy [2002] WASCA 295 at [22]-[23] per Burchett AJ, with whom Murray and Anderson JJ agreed).

  9. I do not consider that reading “or”, in the present context and having regard to the legislative purpose of strengthening – not weakening – the drug enforcement framework, as having a distributive function involves an impermissible re-writing of the section. True it is, that the section could more clearly have been drafted (say by including the word “respectively” or the words “as the case may be” at the conclusion of the section) or the legislation could have continued the former practice of having a separate (though essentially identical) definition of drug analogue for each of the respective lists. By the same token, had the legislature intended the result for which the respondents contend it would have been a simple matter to insert the word “either” before “a listed” or, which would have been even clearer, to say “itself listed either as a controlled drug or a border controlled drug or both”.

  10. Had I been of the contrary view, then I would nevertheless also have been of the view that such an outcome produces a manifestly absurd result, and would have resolved the ambiguity arising from the use of the word “or” in this context by reading the subsection so as to give it a distributive function by reference to the separate lists.

  11. It is not, in my opinion, an answer to the Crown’s absurdity argument to point to the separate lists and say that the legislature contemplated that there might be different drugs on different lists. It does not follow from that that the legislature should be taken to have intended that drugs on one list could not at the same time be drug analogues of a substance on another list.

  12. Nor is it an answer to say that there may be drugs the chemical composition of which is open to scientific debate. The submission for Ms Peart to that effect (i.e., that the drug the subject of counts 1 and 2 might be scientifically analysed as a drug analogue of some other border controlled drug that was not listed as a controlled drug and hence, if I understand the submission correctly, would remain a substance that it was illegal to import) seems to be inconsistent with the basis on which counts 1 and 2 on the indictments were quashed. In other words, if MDMC was scientifically analysed as a drug analogue of some other listed border controlled drug – not Methcathinone – that was not a listed controlled drug, then at most what was required was an amendment to those counts of the indictment, not them being quashed. In any event it appears no more than a matter of speculation and there is no warrant for this Court to engage in some form of chemical analysis of the respective drugs.

  13. I have not found it necessary, to reach the above conclusion, to have regard to the number of drugs that would now become legal to import (but would remain illegal to traffic in or manufacture). The fact that MDMC is apparently such a drug of itself sufficiently illustrates the absurdity of the outcome if the legislation is interpreted in the way for which the respondents contend. Nor have I placed weight on the extrinsic materials, beyond noting that there was no suggestion made at the time of passage of the amending legislation that a radical change from the existing operation of the definition of drug analogues was there contemplated.

  14. As to the suggestion that the “real evil” lies in the sale, distribution or consumption of controlled drugs rather than the importation of substances that would up until 28 May 2013 have been illegal to import because they were sufficiently similar in composition to have been recognised as analogues, I do not find this a compelling argument. Insofar as the legislature has specified the same penalties for the respective offences it is hard to draw any conclusion as to where the legislature considers the “real evil” lies and it makes no sense to contemplate the legal importation of drugs which it is illegal to manufacture or in which it is illegal to traffic domestically.

  15. For the above reasons, I am of the view that the construction for which the Crown contends is correct and that the orders quashing counts 1 and 2 in the indictments should be set aside.

Orders

  1. I would make the following orders:

  1. Allow the appeal.

  2. Set aside the order made by Toner SC DCJ on 9 September 2015 quashing counts 1 and 2 on the indictment presented against Kylie Anne Peart and Daniel Alexander Sorokin on 8 September 2015.

  1. R A HULME J: I agree with Ward JA.

  2. FAGAN J: The word “analogue” means, in ordinary English, something having an analogy with something else. It would not make sense to speak of “an analogue” without more. An analogue must be of something. The word describes a dependent entity: reference to a thing as an analogue only has meaning if the other thing to which it bears analogy is identified.

  3. In s 301.9(1) of the Criminal Code (Cth) where the expression “drug analogue” is defined, the legislature has used the word “analogue” in a meaningful and conventional sense. The sub section does not speak of a “drug analogue” at large or standing alone. It speaks of a “drug analogue of a listed controlled drug, or a listed border controlled drug” (underlining added). “Drug analogue” in sub section (1) thus refers to a thing which has an analogy with “a listed controlled drug, or a listed controlled border drug”.

  4. Sub section (2) of section 301.9(2) reads as follows:

“(2) However, a drug analogue does not include a substance that is itself a listed controlled drug or a listed border controlled drug.”

Here, the expression “drug analogue” is unaccompanied by any words to convey the meaning of something. But as an analogue must always be of something, it is necessary to identify what Parliament intended in that regard. It would be wrong to attribute to the legislature that it has used the expression “drug analogue” in sub s (2) in a meaningless fashion, without reference to anything to which the analogy is borne. One does not have to look any further than sub s (1) to find what Parliament intended. When the two sub-sections are considered together it becomes clear that the expression “drug analogue” in sub s (2) has been used, as Ward JA has said, by way of shorthand for the full expression in sub s (1) “drug analogue of a listed controlled drug, or a listed border controlled drug” (underlining added).

  1. With the full expression inserted in sub s (2), it reads in the following sense (with the inserted words underlined): However, a drug analogue of a listed controlled drug, or a listed border controlled drug does not include a substance that is itself a listed controlled drug or a listed border controlled drug.

  2. Thus understood, with the shorthand expression “drug analogue” expanded to its full intended meaning, the distributive reading of sub s (2) for which the Crown contends becomes compelling. That is, a reading of the sub section in the sense that a drug analogue of a listed controlled drug, or a listed border controlled drug does not include a substance that is itself a listed controlled drug or a listed controlled border drug respectively (or, as the case may be). That interpretation follows from the words of the section themselves once it is recognised that the expression “drug analogue” is an abbreviation of the concept spelled out in full in sub section (1). This distributive interpretation is strongly further supported by the considerations of legislative history and of the absurdity of the results which would flow from the respondent’s alternative interpretation – matters which have been elaborated by Ward JA.

  3. I agree with Ward JA’s reasons and with the orders which her Honour proposes.

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Amendments

06 October 2017 - .

04 October 2017 - Counsel representation on coversheet

Decision last updated: 06 October 2017

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