R v Willingham

Case [2012] SASCFC 29

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

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R v Willingham [2012] SASCFC 29
Case
[2012] SASCFC 29
Decision Date

CaseChat Overview and Summary

This case concerns an application by the Director of Public Prosecutions for permission to appeal against verdicts of acquittal entered by a judge alone in the District Court of South Australia. The respondent, Dale Paul Willingham, had been charged with trafficking in controlled drugs, specifically methylenedioxymethylamphetamine (MDMA), methylamphetamine, and amphetamine. The trial judge found that all elements of the offences were proven except for the identity of the controlled drug itself, acquitting the respondent on the basis that he possessed a salt of the named drugs, which the judge determined did not constitute the controlled drug as particularised.

The central legal issue before the Full Court was the correct interpretation of Regulation 5(1) of the Controlled Substances (General) Regulations 2000 (SA). Specifically, the court had to determine whether the regulations declared each of the named drugs and each of their listed forms, such as salts, to be separate controlled drugs, or whether the regulations broadened the definition of the listed drugs to include these forms. A secondary issue was whether section 33R of the Controlled Substances Act 1984 (SA) was available to allow for a conviction of an "equivalent offence" and whether the trial judge erred in refusing an application to amend the information at a late stage of the trial.

The Full Court held that Regulation 5(1) does not create new controlled drugs but rather broadens the scope of those listed in Schedule 1. Therefore, a salt of a controlled drug is considered a form of that drug, not a separate substance. The court found that the trial judge's interpretation that the salt was not the controlled drug itself was incorrect. Alternatively, the court considered that the salt could be construed as a "preparation" under Regulation 5(1)(e). Furthermore, the court determined that section 33R of the Controlled Substances Act 1984 (SA) was available, allowing the judge to find the respondent guilty of an equivalent offence, namely trafficking in a salt of a controlled drug. The court also noted that it was open to the trial judge to allow an amendment to the information at a late stage.

Permission to appeal was granted, the appeal was allowed, and the verdicts of acquittal were set aside. The Full Court ordered a retrial of the respondent on the information.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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. 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).

Ratio Decidendi

Legal Principle Established

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.