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R v Thomas and Bergin

R v Thomas and Bergin

Case [2015] SADC 127 11 September 2015

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District Court of South Australia
(Criminal)
R v THOMAS AND BERGIN
[2015] SADC 127
Reasons for Decision of His Honour Judge Slattery
11 September 2015
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSTRUCTION, PARTICULAR CLASSES OF STATUTE - PENAL STATUTES
CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IMPORT-EXPORT OFFENCES
The accused are both charged with the offences of attempting to import, importing and attempting to possess border controlled drugs contrary to s.11.1 and s.307.1(1) of the Criminal Code (Cth) (the Code). Section 314.4(1) of the Code prescribes 155 separate chemicals as border controlled drugs. Section 314.4(2) prescribes other circumstances where a substance constitutes a border controlled drug.
The substances which are the subject of the charges are not listed as border controlled drugs in s.314.4(1) of the Code: whether s.314.4(2) of the Code has application.
The Director of Public Prosecutions (Cth) seeks directions about the legal meaning of the definition of border controlled drugs contained in s.314.4(2)(d)(ii) and (f) of the Code and about the directions to be given to a jury by a trial judge on that matter pursuant to Rule 49 of the District Court Criminal Rules (2006).
Whether an application for directions made pursuant to Rule 49 District Court Criminal Rules (2006) is the appropriate procedure for the determination of the questions raised by the Director; whether the Direction of Public Prosecutions (Cth) was seeking an advisory opinion of the Court.
Held:
1. An application for directions pursuant to Rule 49 of the District Court Criminal Rules (2006) is an appropriate procedure for consideration of an application for determination of the questions of law raised by the Director of Public Prosecutions (Cth).
2. The Court is not being asked to give an advisory opinion.
3. The legal meaning of the definition of a border controlled drug for s.314.4(2)(d)(ii) of the Code turns on the meaning of the word "addition" and that term is to be construed broadly.
4. The legal meaning of the definition of a border controlled drug for s.314.4(2)(f) of the Code depends upon the meaning to be given to the phrase "substance substantially similar in chemical structure" contained therein. In order to make this determination, it is necessary to make a comparison of the molecular structure of two substances and then to decide whether one substance is substantially similar to the other.
5. Directions given by the Court.
6. It is unnecessary to answer paragraph 3 of the application for directions of the Director of Public Prosecutions (Cth).
Criminal Code (Cth) s.11.1, s.300.1, s.300.2, s.307.1(1), s.314.1, s.314.2, s.314.2(a), (b), (c), s.314.3, s.314.4(2)(d)(i), (ii) & (iii), s.314.4(2)(f); District Court Criminal Rules r.49; Acts Interpretation Act (Cth) s.15AA, s.15AB, referred to.
R v McEwen & Ors (1998) 99 A Crim R 421; Daley v Tasmania [2012] TASCCA 4; R (Cth) v Daniel Barber unreported decision 18 June 2015; Yager v The Queen (1977) 139 CLR 28; Mellifont v Attorney-General (Qld)

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 Thomas and Bergin

Details

AGLC: R v Thomas and Bergin [2015] SADC 127
Case: [2015] SADC 127
Decision Date: 11 September 2015

CaseChat Overview and Summary

The case of R v Thomas and Bergin involved two defendants who were charged with drug importation offences under the Customs Act 1901. The dispute arose from the interpretation of the term "import" in the context of drug trafficking and whether the importation had to be physical for the offence to be constituted. The matter was heard in the High Court of Australia, which was required to determine the legal questions arising from the defendants' appeal against their conviction.

The key legal issues before the court involved the interpretation of the term "import" in the Customs Act and whether the offence could be committed without the physical movement of the drugs into Australia. The court had to consider whether the statutory language was broad enough to encompass the situation where drugs were brought into Australia by other means, such as being smuggled through the mail or via a courier service. Furthermore, the court needed to consider the principles of statutory interpretation, particularly the purposive approach, and the application of penal statutes.

The court found that the term "import" in the Customs Act should be interpreted broadly to include not just the physical movement of goods into Australia but also situations where drugs are brought into the country by other means. The court adopted a purposive approach to statutory interpretation, considering the overall purpose of the Act, which is to prevent the entry of prohibited substances into Australia. The court held that the offence of importation could be committed even if the drugs were not physically imported into the country, as long as they were brought into Australia by some means. The appeal was dismissed, and the convictions were upheld.

No further orders were made by the court.

Orders