R v Willingham
[2012] SASCFC 29
•30 March 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILLINGHAM
[2012] SASCFC 29
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 - APPEAL AGAINST ACQUITTAL
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
Application by Director of Public Prosecutions (DPP) for permission to appeal against verdicts of acquittal – accused was charged with trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA), namely methylenedioxymethylamphetamine (MDMA), methylamphetamine and amphetamine – the trial Judge found that in each count all elements of the offence were proved except one, the controlled drug itself – the trial Judge found that in each count the accused was in possession of a ‘… salt … of a substance listed in Schedule 1’ of the Controlled Substances (General) Regulations 2000 (SA) (Regulations) and thus not a controlled substance under that Schedule – the trial Judge sitting alone entered verdicts of acquittal on each count – whether the trial Judge erred in entering verdicts of acquittal.
Held: permission to appeal granted – appeal allowed – verdicts of acquittal set aside – retrial ordered.
STATUTES - BY-LAWS AND REGULATIONS - CONSTRUCTION - PARTICULAR WORDS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IDENTITY OF PROHIBITED SUBSTANCES
The issue was whether the Regulations declare each of the three above named drugs to be a controlled drug, which may take or be present in any of the forms listed in Regulation 5(1), or whether the Regulations declare each of the drugs named above, and each form of that drug named in Regulation 5(1), to be a separate or distinct controlled drug – correct interpretation of Regulation 5(1).
Held: salt of amphetamine is not of itself a controlled drug separately from amphetamine but rather a form of amphetamine – Regulation 5(1) broadens the scope of Schedule 1 but does not create further controlled drugs in addition to those listed in Schedule 1 – each charge was correctly particularised – alternatively, it was open to find that the ‘salt’ of each drug was a ‘preparation’ and captured by Regulation 5(1)(e).
CRIMINAL LAW - PROCEDURE - VERDICT - ALTERNATIVE VERDICTS - PARTICULAR CASES
Alternative verdict – whether s 33R of the Controlled Substances Act 1984 (SA) was available to the trial Judge to find the accused guilty of an alternative ‘equivalent offence’.
Held: s 33R was available to find the accused not guilty of the offences as charged but instead guilty of an ‘equivalent offence’ – under s 33R, trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) is an ‘equivalent offence’ for the charged offence of trafficking in a ‘salt’ of a drug named in Schedule 1.
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT - GENERALLY
The trial Judge refused to allow an application to amend the Information at a late stage at trial – whether the trial Judge had the power to amend the Information at the late stage – whether the trial Judge erred in refusing to allow the application to amend the Information.
Held: it was open to the trial Judge to allow the application to amend the Information, even at the late stage – the trial Judge did not err in refusing the application.
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE NEW TRIAL ORDERED
Construction of s 353(2a) and s 353(3) of the Criminal Law Consolidation Act 1935 (SA) – whether s 353(2a) and s 353(3) confer power on the Court to substitute a verdict of guilty where an appeal against a verdict of acquittal by the DPP is allowed.
Held: s 353(2a) and s 353(3) do not confer on the court power to substitute a verdict of guilty where an appeal by the DPP against verdicts of acquittal is allowed – appropriate order is a retrial in the circumstances.
Controlled Substances Act 1984 (SA) s 4(1), s 4(2), s 4(3), s 4(4), s 4(5), s 12(4), s 32, s 32(3), s 32(5), s 33R; Controlled Substances (General) Regulations 2000 (SA) reg 5, reg 5(1), reg 5(1)(a), reg 5(1)(b), reg 5(1)(c), reg 5(1)(d), reg 5(1)(e), reg 6, Schedule 1; Criminal Law Consolidation Act 1935 (SA) s 352(1)(ab), s 352(1)(ab)(i), s 353(2a), s 353(3), referred to.
Ayles v The Queen (2008) 232 CLR 410; R v Ayles (2007) 97 SASR 78; R v Abdulla (2010) A Crim R 365, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"salt", "preparation"
R v WILLINGHAM
[2012] SASCFC 29Court of Criminal Appeal: Doyle CJ, Gray and Stanley JJ
DOYLE CJ: The Controlled Substances Act 1984 (SA) (the CSA) creates offences of trafficking in a controlled drug. The Controlled Substances (General) Regulations 2000 (SA) (the Regulations) declare certain substances to be controlled drugs. Controlled drugs are listed by name in Schedule 1 of the Regulations.
The three drugs, the subject of charges in this case, are respectively as follows:
Count 1 – 3, 4 – Methylenedioxymethylamphetamine (MDMA) (commonly known as ecstasy);
Count 2 and Count 6 – methylamphetamine;
Count 3 – amphetamine.
As each of them is listed by name in Schedule 1, each of them is declared to be a controlled drug.
The accused was charged with trafficking in each of those drugs, and was tried before a Judge sitting alone without a jury. The Judge found that in each case the elements of the offence were proved with one exception. The Judge found that in relation to each count the accused was in possession of a “… salt … of a substance listed in Schedule 1”, namely, a salt of the controlled drug in question: R v Willingham [2011] SADC 172 at [25], [27], [134], [143].
The evidence before the Judge established the weight of the controlled drug in question that was present in the salt of the relevant controlled drug. That was able to be, and was, calculated by scientific analysis.
The issue on appeal is whether the Regulations declare each of the three named drugs to be a controlled drug, which may take or be present in any of the forms listed in reg 5(1) of the Regulations, or whether the Regulations declare each of the drugs named above, and each form of that drug named in reg 5(1) of the Regulations, to be a separate or distinct controlled drug.
The District Court Judge took the latter approach. He interpreted the Regulations as declaring each form of the drug named to be a separate or distinct controlled drug. Accordingly, the charges were not proved because, for example, the allegation in count three was that the accused trafficked in a controlled drug, namely, amphetamine, whereas in fact a different offence was proved, namely, trafficking in a salt of amphetamine.
The DPP now appeals against the finding that the accused is not guilty of each count. The appeal lies pursuant to s 352(1)(ab)(i) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) with the permission of the Court. The powers of the Court on appeal are set out in s 353(2a) of the CLCA.
Counsel for the DPP submits that the Judge erred in his interpretation of the Regulations. In the alternative, counsel submits that the Judge should have amended the Information so that each count referred to a salt of the controlled drug named in the Information.
Facts and legislation
Gray J has set out the relevant facts and the legislation. I will avoid unnecessary repetition.
As I have already noted, the Judge found that each element of each count was proved, saved that the controlled drug named was not the controlled drug found to be in the possession of the accused. The Judge had the benefit of expert evidence relating to the technical terms used in the Regulations and in the Schedule to the Regulations. The Judge’s findings of fact are not disputed on either side. Nor, as I understand it, is there any significant dispute about the Judge’s use of the expert evidence given before him.
Offences involving trafficking in a controlled drug are created by s 32 of the CSA. The offence in question is trafficking in a controlled drug: s 32(3). There are separate offences of trafficking in a large commercial quantity of a controlled drug and trafficking in a commercial quantity of a controlled drug, but these are not the offences charged.
Section 4(1) of the CSA defines “controlled drug” as meaning “… (b) a substance declared by the Regulations to be a controlled drug for the purposes of this Act …”. Section 12(4) of the CSA provides:
12 - Declaration of poisons, prescription drugs, drugs of dependence, controlled drugs etc
…
(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, the terms of which are the source of the issue argued on appeal, relevantly provides as follows:
5 - 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.
Gray J has set out in his reasons relevant extracts from Schedule 1. About 170 substances are listed in Schedule 1. As the extract set out by Gray J indicates, they are listed by name using terms that indicate the names are used with a technical meaning, requiring expert evidence to identify a substance as one of the substances named. Although the three drugs named in this case are well known to the courts, expert evidence was required to enable the Judge to decide whether or not the accused was in possession of one of those controlled drugs.
Consideration of appeal
It is common ground that the accused was in possession of a salt of the controlled drug named in the relevant count. The Judge’s finding to that effect is not challenged.
The Judge used count 1, alleging trafficking in ecstasy, as the basis for his reasoning. He applied the same reasoning to the other counts. The Judge said:
[27]Although the prosecution has particularised the drug allegedly trafficked in as MDMA, the drug that they have proved possession of is a salt of MDMA. They are not the same thing.
[28]In layman’s terms one would hardly consider, for example, that the soft brown metal that we call copper is the same thing as the blue green crystal or powder known as copper sulphate which is used for inserting into drains to kill tree roots.
The Judge went on to say:
[35]3, 4 – Methylenedioxymethylamphetamine (MDMA) appears in Schedule 1 and is therefore a controlled drug in its natural or synthetic form.
[36]In my view the MDMA which was located in possession of the accused, being a salt, is not proven to be “the natural or synthetic form of a substance listed in Schedule 1”.
[37]There is, however, a controlled drug under Regulation 5(1)(b) that is a salt of the natural or synthetic form of MDMA.
5(1) In accordance with section 12(4) of the Act, the following substances are declared to be controlled drugs:
…
(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.
[38]Mr Retalic argued that the Regulations make the salt of MDMA a different substance to the controlled drug MDMA listed in Schedule 1.
[39]It seems to me that that argument is correct in layman’s terms. As I observed, one could hardly say that copper is the same substance as copper sulphate. One would hardly say that the dangerous and explosive metal “sodium” is the same thing as the table salt that is used to flavour our food.
[40]It is important to remember that this is not a case where the salt is a mixture with the MDMA so that there is both MDMA and a salt present. The salt has chemically combined with the MDMA to create another substance. The other substance may look different and have different properties including pharmacological properties and be in a different state i.e. solid, liquid or gas. (T 471 L35, T473 L7 & T475 L13).
Accordingly, the Judge decided that as the controlled drug named in the relevant count was 3, 4 methylenedioxymethylamphetamine (MDMA), the accused was not in possession of this drug but in possession of a salt of MDMA: [61]. The Judge rejected an argument that the accused was in possession of a preparation or mixture for the purposes of reg 5(1)(e), saying:
[62]Nor can the prosecution succeed with the argument that the MDMA is a mixture with its salt. As I have already explained, it is not a mixture; it has chemically reacted to form a completely new substance, with the base and the acid being in fixed proportion, one to the other.
Regulation 5(a) requires the listing in the Schedule of each substance which is declared to be a controlled drug. Each of the controlled drugs named in the particulars of each count is listed in Schedule 1.
Subparagraphs (b) to (e) of reg 5 do not require the listing in Schedule 1 of the substance, or form of the substance, identified in those subparagraphs. The effect of those subparagraphs is that once, pursuant to subpara (a), a substance is listed in Schedule 1, each named substance or form of the substance listed in reg 5 is also a controlled drug. The result (using amphetamine and its salts as an example) is that amphetamine (in a natural or synthetic form) is a controlled drug, and the forms of amphetamine named in subparas (b) to (e) are to be treated as included in the reference to amphetamine in Schedule 1. A salt of amphetamine is not itself a controlled drug separately from amphetamine. The salt of amphetamine is to be treated as a form of amphetamine, by virtue of reg 5.
The same thing can be said in a different way. The listing of a substance in Schedule 1 constitutes that substance as a controlled drug. Subparagraphs (b) to (e) of reg 5 expand the application or reach of the substance named to include its salts, derivatives, isomers, analogues, homologues and preparations, admixtures, and solutions containing the substance.
On this approach, the charge in each case was correctly particularised as, for example, trafficking in amphetamine. A reference to the particular form of amphetamine, such as “… namely, a salt of amphetamine …” (and even, if it were thought appropriate, which salt) would not be inappropriate. But this is not necessary, unless in the particular case there is an issue between the prosecution and the defence as to the identity of the substance in question which makes complete specificity desirable.
There is no reason to read subparas (b) to (e) of reg 5 as creating a series of controlled drugs, separate and distinct from the substance named in Schedule 1, in exercise of the power conferred by s 4(1) of the CSA. The scientific evidence exposes the overlap between a number of the terms used, and the potential breadth of some of the terms used in subpara (e). In light of that, the approach to the construction of reg 5 urged by Mr Edwardson QC, counsel for the respondent, would give rise to complex chemical evidence about the precise form in which the controlled drug was present. It would be necessary in each case to be exactly right about the form of the controlled drug said to be present. This could not have been the intention of the drafter. Regulation 5 and the Schedule use technical chemical terms. The drafter must have appreciated the technical content of the terms used. It makes sense, with that knowledge, to treat the drafter as intending to declare controlled drugs by naming them in Schedule 1, and then, using subparas (b) to (e) of reg 5, to catch or include the named forms of the controlled drug. But the controlled drug remains the substance named in Schedule 1.
Regulation 6 supports this approach. It is drafted on the assumption that the controlled drug is the substance listed in Schedule 1. That is inconsistent with each substance in reg 5 also being a controlled drug.
It may be, as Mr Edwardson argued, that some forms of a controlled drug are less harmful than the substance listed in Schedule 1. That is an argument for excluding that particular form of a controlled drug. The problem (if it is a problem) arises on each approach to the meaning of Schedule 1.
We were told that certain salts or isomers of amphetamine and methylamphetamine are listed in the Schedule, eg dexamphetamine, levamphetamine and levomethylamphetamine. Why this was done is unclear. If they are salts, or isomers, of amphetamine or methylamphetamine, they are already caught by reg 5.
An examination of Schedule 1 reveals that although these salts or isomers are listed in the Schedule, the drafter has not used the power conferred by reg 6 of the Regulations to list an amount of the drug that is a “large commercial quantity” or a “commercial quantity” of the controlled drug, with the result that the only available charge in relation to these controlled drugs is the charge of trafficking. A charge of trafficking in a commercial quantity or trafficking in a large commercial quantity (each attracting heavier penalties) is not available. The decision not to exercise the power conferred by reg 6 in relation to these controlled drugs might reflect a decision not to lay the basis for the more serious charges in relation to trafficking in these controlled drugs. Why that decision would be made is not apparent. The submissions threw no light on the subject. An examination of Schedule 1 reveals that no amount is listed in the column “Large commercial (pure)” in relation to most of the drugs listed. The same comment applies to the column headed “Commercial (pure)”. In some instances, in addition to the drugs now under consideration, no amount is listed under any of the columns in the Schedule. Once again, the submissions threw no light on this aspect of the Regulations.
Another odd feature of the legislative scheme is that s 4(3) of the CSA provides:
4—Interpretation
…
(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.
The definition of an analogue is found in s 4(2) of the CSA. The effect of s 4(3) is that analogues of the controlled drugs named in the Information would have been a controlled drug by operation of s 4(3), yet the drafter has referred to and dealt with analogues in reg 5(1)(c). The reason for this is unclear.
These oddities about the scheme of the CSA and the Regulations do not persuade me that my approach to the construction of the Regulations is wrong.
I should add that I agree with the submission by the Director that reg 5(1)(e) of the Regulations overlaps a number of the preceding subparagraphs. I agree with Gray J that a salt of a substance listed in Schedule 1 can be described as that substance existing in a preparation. There may be other overlaps. This provides some support for my conclusion that the drafter’s focus is on the list of controlled drugs in Schedule 1, and then on “sweeping up” other forms of that substance listed in reg 5(1)(b) to (e).
It follows that the offences alleged in count 1, count 2, count 3 and count 6 were proved. The only issue was the identity of the controlled drug. On my approach, each count correctly named a controlled drug that the accused had in his possession. It was the relevant controlled drug listed in Schedule 1, in one of the forms described in reg 5(1). The failure to identify the form referred to by reg 5(1) does not make the count defective. In the circumstances no injustice could have flowed from the failure to do so, and so there was no need for the Information to be amended, or for further particulars to be given.
It is appropriate to grant permission to appeal pursuant to s 352(1)(ab)(i) of the CLCA. The correct interpretation of reg 5 is of practical importance.
The powers of the Court are oddly expressed. Section 353(2a) of the CLCA provides:
353—Determination of appeals in ordinary cases
…
(2a)On an appeal against acquittal brought by the Director of Public Prosecutions, the Full Court may exercise any one or more of the following powers:
(a)it may dismiss the appeal;
(b) it may allow the appeal, quash the acquittal and order a new trial;
(c)it may make any consequential or ancillary orders that may be necessary or desirable in the circumstances.
Permission to appeal having been granted, the Court has power to allow the appeal and to quash the acquittal and to order a new trial, by virtue of subpara (b). Does the Court have power to substitute a verdict of guilty? Must the Court order a re-trial? Having regard to the provisions of subsection (2a), I do not consider that the entry of a verdict of guilty is covered by the reference to consequential or ancillary orders. Another oddity, although it probably throws no light on the question now under consideration, is raised by s 353(3), which provides:
353—Determination of appeals in ordinary cases
...
(3) If the Full Court orders a new trial under subsection (2a)(b), the Court—
(a)may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but
(b)may not make any order directing the court that is to retry the person on the charge to convict or sentence the person.
It is not easy to understand when and why a court would order a re-trial, yet direct the court re-trying the person to convict the person in question. But the provision made by s 353(3) does suggest that Parliament was concerned not to allow this Court to record a verdict of guilty on an appeal against an acquittal.
Accordingly, I would allow the appeal, set aside the acquittal on each count and order a new trial on each count.
It is appropriate to do so, although the decision to do so involves the exercise of a power, and requires the Court to consider the interests of justice and the circumstance that as a result of the order the accused will face another trial. I consider it appropriate to allow the appeal and to order a new trial because the only point at issue has been a technical one, and apart from the fact of a re-trial there is no prejudice to the accused in facing the second trial.
That leaves an alternative submission by the Director to the effect that the Judge should have amended the Information to refer in each count to a salt of the relevant controlled drug. That is, of course, on the hypothesis that the Judge’s approach to the interpretation of reg 5 was correct. The Judge’s reasons record that after final addresses, and only a few days before the Judge was due to deliver judgment, he received a written application from counsel for the DPP applying for permission to amend the particulars in the Information. The application was to add, after the reference to each controlled drug, the words “or an isomer thereof”. As the Judge noted, there was no application to amend the particulars to allege that the accused was in possession of a salt of the controlled drug in question: reasons at [93]. The Judge said, with reference to this application:
[94]The trial has been conducted on the issue of the identity of the respective substances and whether they are encompassed by the particulars as MDMA, methylamphetamine and amphetamine. Mr Retalic, in his address, made no other point than this. It was the only issue he dealt with in cross-examination. It seems to me that it would be unfair of me to make an amendment in the knowledge of what my factual findings are so as to save the prosecution case.
[95]It would be unfair of me because it would be permitting the side stepping of the very issue upon which the defence conducted the case and with which the prosecution, having notice, joined issue. (See R v H).
[96]In R v H the accused led evidence that at the time of the commission of an alleged sexual offence he was in gaol. The Trial Judge ordered a mistrial and there was a retrial upon which the accused was convicted, different particulars being put forward as to the date of the sexual offences alleged to have been committed.
Footnote omitted
I can only assume that the proposed amendment was formulated on the basis that a salt of a controlled drug was also an isomer. Assuming that to be the case, there is a question of whether the proposed amendment would render each count duplicitous. On the approach that the Judge took to the Regulations, it is arguable that the amendment would give rise to duplicity, because each count would allege, in the alternative, an offence constituted by the possession of two different drugs. The matters referred to by the Judge were relevant to the exercise of his power to amend. Also, in my opinion, it was relevant that counsel for the DPP had resolutely declined to apply to amend the Information until the very last moment.
In the particular circumstances of the case, I consider that the Judge did not err in declining to amend in the manner proposed. For the sake of clarity I add that in my opinion the Judge had power to amend, even at that late stage: see Ayles v The Queen [2008] HCA 6; (2008) 232 CLR 410; R v Ayles [2007] SASC 82; (2007) 97 SASR 78 and R v Abdulla [2010] SASC 52; (2010) 200 A Crim R 365.
The Judge’s attention was not drawn to s 33R of the CSA. That section provides:
33R—Alternative verdicts
(1)If, in any proceedings against a person for an offence against this Part, the court is not satisfied that the person committed the offence but is satisfied that the person committed another equivalent or lesser offence against this Part, the court may find the person not guilty of the offence charged but guilty of the other equivalent or lesser offence (and the person is liable to be punished accordingly).
(2)For the purposes of this section, an equivalent or lesser offence is an offence for which the maximum penalty is the same as or less than the maximum penalty for the offence charged.
The submissions on this point were brief. However, assuming for present purposes that the Judge was correct in his approach to reg 5, I consider that the offence of trafficking in a controlled drug, namely a salt of the drug named in each count, is an “equivalent” offence for the purposes of s 33R, and that it was open to the Judge to find the accused not guilty of the offence charged but guilty of the equivalent offence. In the circumstances of the case, there was no injustice in so finding and, had the Judge’s attention been drawn to the provision, the Judge should have convicted the accused on that basis. The Judge should have done so even though, in relation to the alternative offence, the Director could not rely upon the statutory presumption that the accused intended to sell the drug in question, that presumption arising under s 32(5) if it was proved that the accused was in possession of a trafficable quantity of a controlled drug. If the conviction to be recorded was in respect of a controlled drug caught by reg 5 but not listed in the Schedule, no trafficable quantity was listed in the Schedule to the Regulations, and so the statutory presumption was not available. But the Judge was alive to this point, and recorded a finding in relation to each count that the intention to sell the drug was proved without resort to the presumption.
Conclusion
For all those reasons I would grant permission to appeal. I would allow the appeal, set aside the verdicts of acquittal, and order that there be a re-trial on the Information.
GRAY J.
This is an appeal by the Director of Public Prosecutions against verdicts of acquittal following a trial in the District Court.
The defendant and respondent, Dale Paul Willingham, was charged, inter alia, on information with five counts of trafficking in a controlled drug. The trial proceeded before a judge alone. A nolle prosequi was entered in relation to one of the counts of trafficking in a controlled drug. The Judge entered verdicts of not guilty in respect of the remaining four counts of trafficking in a controlled drug.
The Judge found it proved that the defendant was in possession of the relevant substances the subject of each of the four counts, that the relevant substances were controlled drugs and that the defendant had an intention to sell some or all of the controlled drugs in his possession. The Judge, however, 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.
This appeal is governed by sections 352(1)(ab), 353(2a) and 353(3) of the Criminal Law Consolidation Act 1935 (SA), which relevantly provide:
352—Right of appeal in criminal cases
(1) Appeals lie to the Full Court as follows:
(ab)if a person is tried on information and acquitted, the Director of Public Prosecutions may, with the permission of the Full Court, appeal against the acquittal on any ground—
(i) if the trial was by judge alone; or
(ii)if the trial was by jury and the judge directed the jury to acquit the person;
…
353—Determination of appeals in ordinary cases
…
(2a) On an appeal against acquittal brought by the Director of Public Prosecutions, the Full Court may exercise any one or more of the following powers:
(a) it may dismiss the appeal;
(b) it may allow the appeal, quash the acquittal and order a new trial;
(c)it may make any consequential or ancillary orders that may be necessary or desirable in the circumstances.
(3) If the Full Court orders a new trial under subsection (2a)(b), the Court—
(a)may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but
(b)may not make any order directing the court that is to retry the person on the charge to convict or sentence the person.
…
In accordance with these provisions, if this Court were to grant permission and allow the appeal, it would follow that there would be a remittal for a retrial.[1]
[1] In February 2008, when introducing these provisions, the Attorney-General provided the following explanation concerning the powers of the Court on appeal in the course of the second reading speech:
… In determining an appeal, the court may affirm or quash the acquittal: if the acquittal is quashed, the court may order a new trial, but cannot proceed to convict or sentence the accused person, nor direct the court conducting the new trial to do so. …
South Australia, Parliamentary Debates, House of Assembly, Wednesday 13 February 2008, 2040 (The Hon. M J Atkinson).
This appeal raises issues of construction and requires this Court to examine provisions of the Controlled Substances Act 1984 (SA) and the Regulations made under that Act; namely, the Controlled Substances (General) Regulations 2000 (SA).[2] For reasons that follow, I have reached the view that the appeal should be allowed. I propose to summarise my approach at the outset.
[2] These regulations were in force as at the time of the alleged offending. Their title has subsequently been amended.
Regulation 5 of the Controlled Substances (General) Regulations was made pursuant to section 12(4) of the Controlled Substances Act. Regulation 5 declares certain substances to be controlled drugs and does so by reference to the substances in Schedule 1. Relevantly, Schedule 1 includes amphetamine, methylamphetamine, and 3,4-methylenedioxymethylamphetamine.[3] Regulation 5 describes the forms that the Schedule 1 substances may take in order to be declared a controlled drug. Of particular relevance is regulation 5(1)(b) which includes “any salt … of a substance listed in Schedule 1”. Also of relevance is regulation 5(1)(e) as I have concluded that the salted form of the relevant substances constitutes a “preparation” within the meaning of that sub-regulation. Ultimately, I conclude that on a proper construction, the various forms of the substances in Schedule 1 as provided by regulation 5 are not further separate controlled drugs, but rather the various forms are the same controlled drug for the purpose of the legislative scheme.
[3] 3,4-methylenedioxymethylamphetamine is hereinafter referred to as MDMA.
Background
On 1 April 2009, police stopped a motor vehicle being driven by the defendant and as a result of a search of the vehicle, located 23.3 grams of hard resinous material containing 16.5 grams of MDMA[4] – the first count. The search also located 109.9 grams of powder, which contained 87.6 grams of methylamphetamine, a further 2.57 grams of powder containing 2.01 grams of methylamphetamine and finally 2.02 grams of powder containing 1.59 grams of methylamphetamine – the second count.
[4] The numerical values in this paragraph and the following paragraph were obtained from exhibit P7 and the evidence of Paul Pigou at transcript page 465.
Following the search of the motor vehicle, the police then searched the defendant’s premises and discovered 6.71 grams of powder containing 0.16 grams of amphetamine – the third count.
On 25 July 2009, police again attended and searched the defendant’s premises and located 25 grams of powder containing 14.8 grams of methylamphetamine[5] – the sixth count.
[5] The numerical values in this paragraph were obtained from exhibit P6 and the evidence of Matthew Cox at transcript page 495.
Expert evidence was led in the trial. The expert testified that methylamphetamine is an oily liquid. In the form of the salt, methylamphetamine hydrochloride, it is a solid. The expert described the process used at the Forensic Science Centre for determining the weight of drugs which are in a salt form:
Just about every drug that we receive comes to us as a salt but what is reported is the amount of the actual base drug that is contained in the sample, because whether something is the hydrochloride salt, or the sulphate, or the phosphate, or any other acid salt, its weight will be different but the amount of methylamphetamine in each will still be the same. So that a sample containing, for example, 2 g of methylamphetamine will actually weigh more as the sulphate than it does as the hydrochloride. To be consistent to actually reflect the amount of drug that is in the sample, we only report the base proportion which is the methylamphetamine and ignore the salt.
The expert evidence disclosed that the main reasons for converting methylamphetamine from its liquid form to its solid salted form is because it is easier to handle and because the salted form is water soluble, allowing the drug to be injected. Methylamphetamine in its pure form is insoluble in water.
The salted form of methylamphetamine is produced by mixing it with hydrochloric acid or sulphuric acid. The salted form is a more complicated molecule which has “an extra part combined onto one end”.
The expert testimony disclosed that amphetamine, methylamphetamine and MDMA each have isomers; that is, chemicals which have the same formula but have different structures.
The Judge’s Reasons
The Judge identified in uncontroversial terms the elements of the offence of trafficking in a controlled drug:[6]
1. The [defendant] was knowingly in possession of a substance.
It is a requirement that the [defendant] be proven to know he is in possession of the substance. Possession does not mean ownership. You can possess something without necessarily being the owner of it. Nor does possession necessarily mean actual physical custody of something.
Possession means having the power and the intention to exercise control over something to the exclusion of all others.
2. The substance was a controlled substance being 3, 4 – Methylenedioxymethylamphetamine (MDMA or ecstasy) (Count 1), methylamphetamine (Count 2 & 6) and amphetamine (Count 3).
3. The substance was in a trafficable quantity (in order for the presumption referred to in s 32(5)(b) to apply).
4. The [defendant] possessed the substance for the purpose of sale. (If I am satisfied that the [defendant] is knowingly in possession of more than 2 g of the substance in respect of each of the drugs then the [defendant] is presumed to have had “the relevant belief concerning the sale of the drug necessary to constitute the offences” unless he proves, on the balance of probability, to the contrary.
5. The [defendant] must know the substance is an illegal substance. It does not matter whether the [defendant] knew specifically the identity of the drug as long as he knew it was an illegal drug.
[6] R v Willingham [2011] SADC 172, [14].
In respect of count 1, trafficking in a controlled drug, namely MDMA,[7] the Judge concluded that the defendant was knowingly in possession of the substance which the Judge found to be MDMA salt. The Judge concluded, however, that he was not satisfied that the substance the subject of the count was in fact MDMA. The evidence established that the percentage of MDMA in the substance was 71 per cent and the balance of the weight being other materials. The Judge concluded that the prosecution had proved that the defendant was in possession of a salt of MDMA but that this was a different and distinct drug from MDMA. In reaching this conclusion, the Judge drew on an analogy contrasting the metal substance called “copper” with the substance “copper sulphate”.
[7] Dale Paul Willingham on the 1st day of April 2009 at Mansfield Park, trafficked in a controlled drug, namely 3,4-Methylenedioxymethylamphetamine (also known as Ecstasy).
The Judge went on to consider the relevant legislative scheme. He took the view that the Controlled Substances Act was a penal statute and that the Act and the Regulations made under the Act were to be construed strictly against the Crown. Approaching the question of construction in this way, the Judge concluded that, properly construed, the Regulations identified MDMA and the salt of MDMA as separate controlled drugs.
The Judge went on to consider the question of trafficking. In that respect, he concluded that being in possession of more than the prescribed weight of the salt of MDMA did not give rise to a presumption of trafficking as there was no prescribed amount of the salt under the Regulations and as a consequence, the statutory presumption of trafficking given more than a prescribed amount could not arise. However, the Judge then went on to consider whether, quite apart from any presumption, the prosecution had proved that the defendant was trafficking in the salt of MDMA. The Judge concluded that he was satisfied that the defendant possessed the substance for the purpose of sale. As a consequence, the element of trafficking had been proved. Finally, the Judge concluded that the defendant knew he had possession of an illegal substance.
In respect of count 2, trafficking in a controlled drug, namely methylamphetamine,[8] the Judge reached similar conclusions to those set out in regard to count 1. Again, the Judge found each of the elements proved save for the nature of the substance. In regard to this count, the Judge concluded that the substance was a salt of methylamphetamine – a different controlled drug to that charged; namely, methylamphetamine.
[8] Dale Paul Willingham on the 1st day of April 2009 at Mansfield Park, trafficked in a controlled drug, namely methylamphetamine.
In respect of count 3, trafficking in a controlled drug, namely amphetamine,[9] the Judge reached similar conclusions to those set out in regard to count 1. Again, the Judge found each of the elements proved save for the nature of the substance. In regard to this count, the Judge concluded that the substance was a salt of amphetamine – a different controlled drug to that charged; namely, amphetamine.
[9] Dale Paul Willingham on the 1st day of April 2009 at Burton, trafficked in a controlled drug, namely amphetamine.
In respect of count 6, trafficking in a controlled drug, namely methylamphetamine,[10] the Judge reached similar conclusions to those set out in regard to count 1. Again, the Judge found each of the elements proved save for the nature of the substance. In regard to this count, the Judge concluded that the substance was a salt of methylamphetamine – a different controlled drug to that charged; namely, methylamphetamine.
[10] Dale Paul Willingham on the 25th day of July 2009 at Burton, knowingly trafficked in a controlled drug, namely methylamphetamine.
The Legislative Scheme
Before coming to discuss the issues on appeal, it is convenient to set out the relevant statutory and regulatory provisions.
A convenient starting point is section 4 of the Controlled Substances Act which relevantly provides:
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;
…
sell means sell, barter or exchange, offer or agree to sell, barter or exchange or expose for sale, barter or exchange;
…
traffic in a controlled drug means—
(a) sell the drug; or
(b) have possession of the drug intending to sell it; or
(c) take part in the process of sale of the drug;
trafficable quantity[11] of a controlled drug or controlled plant means—
[11] 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.
Further, sections 4(4) and 4(5) of the Act shed light on the meaning of the term “sale”:
(4)For the purposes of this Act, a person takes part in the process of sale, manufacture or cultivation of a controlled drug or controlled plant if the person directs, takes or participates in any step, or causes any step to be taken, in the process of sale, manufacture or cultivation of the drug or plant.
(5)For the purposes of this Act, a step in the process of sale of a controlled drug includes, without limitation, any of the following when done for the purpose of sale of the drug:
(a)storing the drug;
(b)carrying, transporting, loading or unloading the drug;
(c) packaging the drug, separating the drug into discrete units or otherwise preparing the drug;
(d)guarding or concealing the drug;
(e) providing or arranging finance (including finance for the acquisition of the drug);
(f)providing or allowing the use of premises or jointly occupying premises.
From these definitions it seems that the two terms overlap – ‘sale’ being a component of ‘trafficking’.
The other provision worth noting in the Controlled Substances Act is section 12(4) which is in the following terms:
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 provides:
(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:[12]
[12] 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:[13]
[13] 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
…
The Appeal
The Nature of the Controlled Drug
The primary submission of the Director was that the Judge had misinterpreted the legislative scheme. It was contended that Schedule 1 listed each and every controlled drug and that in the case of MDMA, the controlled drug was MDMA and not the salt of MDMA. 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 – regulation 5(1)(c); whether the drug was to be found within a homologue[14] – 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 MDMA and it was not to the point that it was found in the form of MDMA salt.
[14] 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 same process of reasoning was followed with respect to the controlled drug, amphetamine, and the salt of amphetamine. It was submitted that the controlled drug remained amphetamine notwithstanding that it was found in the form of amphetamine salt. Again, through the same process of reasoning, it was submitted that the controlled drug remained as methylamphetamine notwithstanding that it was found in the form of methylamphetamine salt.
Counsel for the defendant submitted that the statutory scheme had an entirely different purpose. In particular, it was said that Schedule 1 identified some only of the drugs that were controlled drugs. It was contended that regulation 5 created other controlled drugs. In particular, it was contended that MDMA salt, amphetamine salt and methylamphetamine salt were each separate stand alone controlled drugs. In each case it was said MDMA, amphetamine and methylamphetamine were a different drug to the salt of each. It was argued that when each of MDMA, amphetamine and methylamphetamine were mixed with an acid that a chemical reaction took place which had the effect of the creation of a new drug.
The difficulty confronting this submission is that the scientific evidence did not provide a necessary explanation or justification to support the submission. The evidence established that it was possible to take, for example MDMA salt, and separately calculate the percentage weight of MDMA in the salt. Further, the acid could be removed leaving the MDMA base.
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. As discussed above, this is given effect to through regulation 5 and Schedule 1. I consider that the evident intent was to identify 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.
The Director advanced an alternative submission in the event that his primary contention was rejected. It was submitted that, on any view, the substances the subject of each of the counts fell within regulation 5(1)(e). They were, it was said, a “preparation”. It is evident that the word preparation is used as a noun in regulation 5(1)(e). The whole point of mixing, for example the MDMA with an acid to form a salt, was to create a preparation that would allow the controlled drug, MDMA, to be available in soluble form.
MDMA in its pure form is an oily substance that is not readily usable. Making the preparation of MDMA converts the oily form into a hard form, the salt. The salt is soluble in water and hence, able to be injected into the human body. Alternatively, in some circumstances, the salt can be smoked.
To my mind, the Director’s submission is correct. Counsel for the defendant, when pressed, was either unable or declined to attempt any definition of the word “preparation”. At first it was suggested that the word “preparation” was used as a verb and referred to a process. Counsel was content to rely on the bare assertion that MDMA salt was a stand alone and different drug to MDMA. This assertion, however, does not meet the terms of regulation 5(1)(e).
Taking for example the drug MDMA and adopting the wording of regulation 5, the following conclusion can be drawn – in accordance with section 12(4) of the Act, as MDMA is listed in Schedule 1, and as MDMA exists in a preparation known as MDMA salt, MDMA is, by the express terms of regulation 5, declared to be a controlled drug.
It follows from an acceptance of the Director’s primary contention or in the alternative, an acceptance of the contention just discussed that the Information correctly identified the controlled drug in counts 1, 2, 3 and 6. It also follows that the prosecution had proved beyond reasonable doubt each of the elements of the offences contained in the four counts. It is to be noted that the defendant did not challenge any of the findings of the Judge with respect to the other elements.
Amendment of the Information
As a further alternative submission, the Director submitted that the Judge should have amended the Information. To be more explicit, the Director submitted that if his contentions were rejected and MDMA salt, amphetamine salt and methylamphetamine salt were separate stand alone controlled drugs, the Judge should have amended each complaint to insert a particular that the controlled drug concerned is the salt. It was pointed out that no prejudice could arise to the defendant given the Judge’s unchallenged findings in respect of each of the other elements of the offences. It may be accepted that on this approach a presumption as to trafficking or sale would not arise, but as noted above, the Judge made a finding of possession for sale having regard to the evidence in the trial.
The decisions of the High Court and of this Court in Ayles[15] and of this Court in Abdulla[16] confirm that the Judge had power to amend the Information even at a late stage of the trial. The Director in the present proceeding is seeking to review the exercise of the discretion of the Judge to refuse an amendment. Having regard to my earlier reasons, it is unnecessary to resolve this complaint. However, it is to be recognised that on an application of this nature, the Judge has a broad discretion and nothing advanced on this appeal would suggest that the exercise of the discretion miscarried.
[15] Ayles v The Queen (2008) 232 CLR 410; R v Ayles (2007) 97 SASR 78.
[16] R v Abdulla (2010) 200 A Crim R 365.
An Alternative Verdict
The Director contended that in the event that the Judge’s interpretation of the legislative scheme was to be upheld, an alternative verdict should have been entered having regard to the terms of section 33R of the Controlled Substances Act. Section 33R provides:
(1)If, in any proceedings against a person for an offence against this Part, the court is not satisfied that the person committed the offence but is satisfied that the person committed another equivalent or lesser offence against this Part, the court may find the person not guilty of the offence charged but guilty of the other equivalent or lesser offence (and the person is liable to be punished accordingly).
(2)For the purposes of this section, an equivalent or lesser offence is an offence for which the maximum penalty is the same as or less than the maximum penalty for the offence charged.
I agree with the reasons of Doyle CJ that in the circumstances of the present proceeding, if the Judge’s conclusions in regard to the interpretation of the scheme were correct, it would have been appropriate for the Judge to have entered verdicts of guilty on each count in respect of the equivalent offence.
Conclusion
I would grant permission to appeal. The appeal should be allowed, the verdicts of acquittal on counts 1, 2, 3 and 6 should be set aside. The proceedings should be remitted to the District Court for retrial.
STANLEY J: I would grant permission to appeal. I would allow the appeal, set aside the verdicts of acquittal, and order that there be a re-trial on the information. I agree with the reasons of the Chief Justice and the reasons of Gray J.
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