R v WILLINGHAM - [2011] SADC 172

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WILLINGHAM
Criminal Trial by Judge Alone
[2011] SADC 172
Reasons for the Verdict of His Honour Judge Cuthbertson
16 November 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - OTHER OFFENCES
- TRAFFICKING IN CONTROLLED SUBSTANCES - FIREARM OFFENCES - POSSESSION OF FIREARMS WITHOUT LICENCE
Held: An allegation that the accused has trafficked by possession in Methylenedioxymethylamphetamine, methylamphetamine or amphetamine is not proved by establishing possession of the salt of the substance as the substance and its salt are different things.
Unfair for Judge to amend information to particularise possession of salt of substance when the contest has turned on the issue of whether the substance includes the salt of the substance.
Late application by prosecution to amend Information by particularising possession of an isomer of the substance in the alternative refused due to unfairness and fact that proposed prosecution amendment does not alleviate problem that it is the salt of the substance that was possessed and not the substance particularised or the isomer of the substance particularised.
Verdict not guilty in relation to drug offences and guilty in relation to firearm offences.
Firearms Act 1977 s 5(14); Controlled Substances Act 1984 s 4, s 32(3) & 12(4); Criminal Law Consolidation Act 1935 s 280(1)(2) & s 281(2); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000, referred to.
Smith v Corrective Services Commissioner (NSW) (1980) 147 CLR 134; Regina v Elliott [1976] 4 WWR 285; Attorney-General's Reference (No 3 of 1987) (1987) 48 SASR 1; R v Ayles (2007) 97 SASR 78; Ayles v R (2008) 232 CLR 410; R v Abdulla (2010) 200 A Crim R 365; Police v Adams [2011] SASC 155; R v H (1995) SASC 5132, considered.

R v WILLINGHAM
[2011] SADC 172

The accused stands charged with four counts of Trafficking in a Controlled Drug and two counts of Possessing a Firearm without a Licence. He has elected to have a trial by judge alone.
Onus of Proof
There is a presumption of innocence and the accused is regarded as innocent unless or until guilt has been proved beyond reasonable doubt.
Burden of Proof
The burden of proving the charges lies upon the prosecution; the accused does not have to prove anything with the exception in relation to Counts 1, 2, 3 and 6 which I will return to.
That means that nothing short of proof beyond reasonable doubt is sufficient.
Each of the elements of the count must be proved beyond reasonable doubt before I can return a verdict of guilty of that particular count.
Separate Counts
The accused is charged with separate counts and each must be considered on its own merits. A verdict of guilty or not guilty in relation to one count does not necessarily mean that there must be a corresponding verdict of guilty or not guilty in relation to the other counts.
The events that occurred on 25 July 2009 are capable of being used by me as relevant to the question of whether the accused possessed the relevant drugs on 1 April 2009 and whether his possession of them was for the purposes of sale and vice versa in accordance with the Ruling I have already delivered on the application for severance. (See T19)
Accused did not give Evidence
The accused did not give evidence. It is not to be held against him that he did not give evidence. I am to draw no adverse inference from the exercise of that right.
Background and Findings made Beyond Reasonable Doubt
In the early hours of the morning of 1 April 2009 Police Officers Sergeant Arthur and Constable Turner were on patrol duties when they turned onto Haven Road from Trafford Road in Mansfield Park. They noticed the accused’s Nissan Navara driving from a building block on the north west corner. The vehicle was stopped and searched. As a result of the search the following relevant items were located:
1.     A slingshot
2.     Knuckledusters
3.     A bag containing $51,000 in cash.
4.A juice bottle found to contain methylamphetamine salt located in a sock. (Count 2).
5.3, 4 – Methylenedioxymethylamphetamine (MDMA) salt located in a press sealed bag of a total weight of 22.3 g containing 6.5 g of MDMA located in a bumbag on the front passenger seat in the car. (Count 1).
6.A Metamucil jar located in the bumbag containing 2.0 g of methylamphetamine salt. (Count 2).
7.A press sealed bag containing 2.57 g of powder containing 2.01 g of methylamphetamine salt. (Count 2).
As a result of locating the items in the motor vehicle a search was conducted of the accused’s premises at 15 Bond Avenue, Burton. In a silver tub, in the kitchen of the premises, police located a glass jar containing 6.71 g of powder containing .16 g of amphetamine salt (Count 3) and a dismantled class H firearm. (Count 5).
As a result of these findings the accused is charged with one Count of Trafficking in a Controlled Drug namely ecstasy (Count 1) and one Count of Trafficking in a Controlled Drug namely methylamphetamine (Count 2) both at Mansfield Park in respect of drugs located in his motor vehicle. In respect of items discovered following a police search of his home at Burton on 1 April 2009 the accused is charged with one Count of Trafficking in a Controlled Drug namely amphetamine (Count 3) and one count of Possessing an Unlicensed Firearm (Count 5).
On 25 July 2009 there was a report of a drive-by shooting at the same premises of the accused at Burton. Police arrived and conducted a search of the premises during the course of which they located 25 g of powder containing 4.8 g of methylamphetamine salt (Count 6) and another class H firearm located in a slit in the mattress in the accused’s bedroom. (Count 7).
I accept beyond reasonable doubt the evidence given by the police as to their observations and what was located.
Trafficking in a Controlled Drug
The elements of Trafficking in a Controlled Drug to be proved beyond reasonable doubt are as follows:
1. The accused was knowingly in possession of a substance.
It is a requirement that the accused 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 accused possessed the substance for the purpose of sale. (If I am satisfied that the accused is knowingly in possession of more than 2 g of the substance in respect of each of the drugs then the accused 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 accused must know the substance is an illegal substance. It does not matter whether the accused knew specifically the identity of the drug as long as he knew it was an illegal drug.

Possessing a Firearm without a Licence

The elements to be proved beyond reasonable doubt are as follows,
1. That the accused was in possession of a firearm.
Section 5(14) of the Firearms Act provides that a person has possession of a firearm if:
(a)the person has custody of the firearm or has the firearm in the custody of another; or
(b)the person has and exercises access to the firearm; or
(c)the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the firearm is found.
Section 5(15) of the Firearms Act states that s 5(14)(c) does not apply, however, if the person establishes that,
(a)he or she did not know, and could not reasonably be expected to have known, that the firearm was on or in the premises, vehicle, vessel or aircraft; or
(b)the firearm was in the lawful possession of another or he or she believed on reasonable grounds that the firearm was in the lawful possession of another.
2.     The firearm was a class H firearm.
3.The accused did not hold a firearms licence authorising possession of     that firearm.
Count 1 – Trafficking in Ecstasy (MDMA)
1.     The accused was knowingly in possession of a substance
I find that when the police searched the Nissan Navara motor vehicle in the early hours of the morning of 1 April 2009 the accused was the only person in the vehicle. It was a twin cab utility with a tray.
The substance which is the subject of Count 1 was located in a Metamucil jar and press sealed bag in a bumbag located on the seat of the vehicle. In the same bum bag were a number of cards in the name of the accused. (See Sergeant Arthur, T440)
In addition there was a large quantity of cash, namely $1,120 located in the bumbag. (T440) making it unlikely someone else would discard the bumbag and its contents.
The vehicle was registered in the accused’s name (P6), and certain other property located in the vehicle belonged to the accused including $51,000 in cash in respect of which he admitted ownership to the police. I make no finding about the $51,000 cash. The Statement of Agreed Facts (P6) leads me to the view that this cash may well have been the accused’s own money and not the proceeds of drug sales.
I am satisfied beyond reasonable doubt that the accused was in possession of the substance which was found to be MDMA salt and located in the bumbag. I make this finding based on the location of the substance in the vehicle, its value, making it unlikely to have been discarded by a third person, the fact that it was in close proximity to the items with the accused’s name on them and the fact that the vehicle contained weapons for protection. In addition I rely on the fact that certain other property located in the vehicle belonged to the accused and that the vehicle was registered in the accused’s name. (Exhibit P6)
2. The substance was MDMA, a controlled drug
The prosecution have pleaded that the substance was 3, 4 - Methylenedioxymethylamphetamine.
I am not satisfied that the substance which was located was in fact MDMA. The substance is a salt of MDMA.
I come to this conclusion partly based on Exhibit P7 which seems to imply that the item number 09/A79253-1 was in its salt form because of the parenthesis around 84 in the columns “% Drug by weight” and the explanation that the values in parentheses “correspond to the percentage weight of the drug salt, which was assumed to be the hydrochloride e.g. methylamphetamine hydrochloride, MDMA hydrochloride etc.”
I think it is tolerably clear from the evidence of Mr Pigou that he confirms this. (See T465 L35, T466 & T467). Although it is less clear in relation to MDMA than in relation to the methylamphetamine and the amphetamine.
In addition, the general tenor of the discussion about methylamphetamine and amphetamine in the evidence of Mr Pigou confirms, in my view, that the three substances were in a salt form.
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.
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 offence is charged under s 32(3) of the Controlled Substances Act. Section 32(3) reads as follows,
32—Trafficking
(3)A person who traffics in a controlled drug is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
The offence is to traffic in a controlled drug. A controlled drug is defined in s 4 of the Controlled Substance Act as either:
(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;
A drug of dependence is defined to mean “a poison declared by the regulations to be a drug of dependence”. There is no suggestion that MDMA or its salt is a drug of dependence.
Alternatively a controlled drug is a substance declared by the regulations to be a controlled drug.
Section 12 (4) of the Controlled Substances Act reads as follows:-
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 an exceptional danger to humans to be a controlled drug for the purposes of this Act.
Pursuant to that provision, Regulation 5 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 sets out what are controlled drugs.
Declaration of controlled drugs, controlled precursors and controlled plants
5(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.
3, 4 – Methylenedioxymethylamphetamine (MDMA) appears in Schedule 1 and is therefore a controlled drug in its natural or synthetic form.
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”.
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.
Mr Retalic argued that the Regulations make the salt of MDMA a different substance to the controlled drug MDMA listed in Schedule 1.
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.
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).
In the science of Chemistry “mixture” has a very defined meaning.
The Oxford English Dictionary (Second Edition) defines mixture inter alia as follows:
4. a. on p 921- In mod. physical science used with restricted meaning: The mechanical mixing of two substances as distinguished from (chemical) combination; also concr. the product of such a mixing, in contradistinction to a compound. More explicitly mechanical or simple mixture, originally used in antithesis with chemical mixture.
1797 Encycl. Brit. (ed. 3) XII. 184/1 Chemical mixture is attended with many phenomena which are never observed in simple mixtures. 1865 BRANDE & COX Dict. Sci., etc., s. v. Chemistry, Artificial mixtures of oxygen and nitrogen. 1887 REMSEN Elem. Chem. i. (1897) 9 Mechanical Mixtures and Chemical Compounds. – In a mixture the substances are unchanged… In a chemical compound the substances which are in combination are completely changed. They are so intimately combined that they cannot be recognised by any ordinary means.
The Macquarie Dictionary (Second Edition) defines mixture to include as follows,
3. Chem., Physics an aggregate of two or more substances which are not chemically united and which exist in no fixed proportion to each other.
The nature of the process of acid / base reactions to produce salt is described succinctly in Freckelton & Selby Expert Evidence (Volume 4 – Loose Leaf Edition) in paragraph 72.70,
Chemical compounds can be divided into broad categories: acids; bases (also known as alkalis) which are the opposite of acids; and neutrals, which are neither acid nor base. The overwhelming majority of illicit drugs are bases. When drugs are treated with acids, such as hydrochloric acid, sulphuric acid, or phosphoric acid, the drug takes on a slightly different form called a salt (for example chloride, sulphate, or phosphate salt, respectively). Most licit and illicit drugs, with the exception of some forms of heroin and crack cocaine, are sold as their salt, not as the base (sometimes called free base). This is because salts are more stable, easier to use (amphetamine base is a relatively volatile, fishy smelling liquid), and most importantly drug salts are soluble in water whereas drug bases are not. Any drug that is destined for intravenous use or oral ingestion must be soluble in water as it must mix with the blood in order to be carried around the body, or must dissolve in gastric juices in order to permeate through the stomach wall into the bloodstream. Ice is methylamphetamine salt that is designed to be inhaled as smoke. During the smoking process the methylamphetamine salt is converted into a cloud of smoke comprising methylamphetamine base and hydrochloric acid gas, both of which are inhaled into the lungs (on its way, the hydrochloric acid gas also interacts with tooth enamel).
In R v Tennant[1] the prosecution mounted an argument that the then definition of “cannabinoid” as, “dried plant material …” in the Controlled Substances Act 1984 could be circumvented when the material located is not dried by asserting that ‘if the plant material is not dried … it is, to use the statutory expression, “a controlled drug contained in a mixture.” He argues that the not-dried material is a mixture of the controlled drug in its pure form and water, the substance removed by the process of drying.’ (See para 45)
[1] (2010) 107 SASR 504
Doyle CJ met this argument as follows,
I do not accept this submission at least without expert evidence to support it. The scope of the expression “controlled drug contained in a mixture” might be affected by evidence going to the point. It may be that the statutory expression “controlled drug contained in a mixture” requires that there be present the pure form of the controlled drug in the same way as occurs if, for example, pure heroin were mixed with a “cutting agent”, or if dried cannabis were mixed with tobacco. Whether the expression reaches, for example, a mixture containing the pure drug in its dissolved form is another question. For example a pure drug might be dissolved in water or some other liquid from which it can be recovered. Whatever might be the conclusion in relation to that situation, I do not agree that not-dried plant material can be regarded, as a matter of ordinary language, as a mixture containing dried plant material (the drug in its pure form) and water. If, for example, the possession of dried apricots was made an offence, and if it was an offence whether the person was in possession of dried apricots in their pure form or in a mixture, Mr Press’s argument appears to lead to the conclusion that the possession of whole and fresh apricots would be an offence because the whole apricot would be treated as comprising dried apricot material mixed with the moisture and apricot stone that would be removed in the drying process. In my opinion that approach is too artificial. Moreover, dried plant material would usually contain some moisture. The only difference between dried plant material and not-dried material is the amount of moisture.
(See para 46)

We are not dealing here with MDMA mixed with an acid. A chemical reaction has taken place and a new substance, a salt, has been produced.
In my view the Regulation confirms that MDMA and a salt of MDMA are different controlled substances. Section 5(1) commences,
… the following substances are declared to be controlled drugs: …
That is, they “the following substances” are controlled drugs in their own right.
The Controlled Substances Act1984 being a penal statute and Regulation, it is necessary to pay heed to the long standing principle of statutory interpretation that an Act which affects the liberty of the subject is, in the event of ambiguity, to be construed strictly against the Crown. (See Smith v Corrective Services Commissioner of (NSW) ).
If the Regulation making authority had wanted to specify the various salt derivatives of MDMA and the other drugs listed in Schedule 1 as the same controlled substance there is an accepted way of doing so. Regulation 5 could have read that the drugs in Schedule 1 include “any salt, derivative or isomer of the natural or synthetic form of the substance ….”
In my view there is persuasive support for the proposition that the drug and its salt are separate substances from the British Columbia Court of Appeal in Regina v Elliott[3].
[3] [1976] 4 WWR 285
In that case the appellant was convicted of Trafficking in 3, 4 – Methylenedioxyamphetamine, (MDA). The Crown alleged that the trafficking occurred by manufacture of the drug and supported the allegations with evidence of a large scale production of chemicals in an improvised laboratory on the appellant’s land.
The appellant conceded that the police had found MDA hydrochloride, a salt of MDA, upon the premises and conceded that it had been manufactured by the appellant. He contended, however, that there was no evidence that he had manufactured (MDA) and that none was found upon the premises.
The Court of Appeal of British Columbia held that the allegation in the indictment of trafficking in the specific drug MDA was material and formed an essential element which the Crown was required to prove and that it had failed to do so because all it had proved was the possession and trafficking in the salt of MDA.
The indictment in that case read as follows,
2. THAT in and about various places in the County of Nanaimo, and elsewhere, in the Province of British Columbia, between on or about the 23^rd day of August, A.D. 1972 and on or about the 21^st day of December, A.D. 1973 they did unlawfully traffic in a restricted drug, to wit: 3, 4 Methylenedioxyamphetamine (MDA) contrary to the form of statute in such case made and provided and against the peace of our Lady the Queen, her Crown and Dignity.
(See page 286)
In that case the wording of schedule H to the Food and Drugs Act, RSC.1970, C.F-27 lists as restricted drugs “3, 4 – Methylenedioxyamphetamine (MDA) or any salt thereof”.
It was said that these words on their true construction included under the general term MDA all the salts thereof and the allegation in the indictment was therefore sufficiently broad to include any salt of MDA despite the specific reference to MDA. (p289)
The Court rejected that submission.
Seaton JA said,
It was shown beyond any doubt that the appellant was manufacturing 3, 4-methylenedioxyamphetamine (MDA) hydrochloride, a salt of MDA. The expert witnesses said that MDA is a liquid, it is difficult to put in capsules and a salt of MDA is usually capped. But they said that MDA and MDA hydrochloride are both the same drug. Those that testified that they had found MDA in tests agreed that they did not distinguish between MDA and salts of MDA. The Crown did not then and does not now seek an amendment. The trial Judge accepted the evidence that MDA hydrochloride is the same thing as MDA and convicted the appellant of trafficking in MDA.
I think the evidence to be of no help in deciding whether a salt of MDA and MDA are the same drug. It is a question of law turning upon an interpretation of the Food and Drugs Act, R.S.C. 1970, c. F-27, and particularly Sched. H. For the purposes of the Act I think that they are not the same drug.
(See R v Elliott[4])
[4] [1976] 4 WWR 285
In my view the prosecution has not proved beyond reasonable doubt that the accused was in possession of the controlled substance 3, 4 – Methylenedioxymethylamphetamine (MDMA) but rather they have proved that he was in possession of a salt of MDMA.
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.
Although it may be said that the element of the offence that has to be proved is that the substance was a controlled drug and not its exact identity, the fact is that the substance is specified in the Information and its identity is material and must be proved beyond reasonable doubt.
It is noteworthy that in the course of his reasons McIntyre, JA said the following,
This is a case where in my view an amendment to the indictment, even after the hearing of the appeal, would have been appropriate. Had the Crown sought an amendment I would have been disposed to allow it. However, no application having been made I feel obliged for the reasons given above to consider that this appeal should be allowed and an acquittal entered.
(See page 291)
Amendment of Information
I have considered whether it would be appropriate for me to amend the Information by deleting from the particulars of the offence “3, 4 - Methylenedioxymethylamphetamine (also known as ecstasy)” and inserting in lieu thereof “a salt of 3, 4 - Methylenedioxymethylamphetamine (also known as ecstasy)”.
Section 281(2) of the Criminal Law Consolidation Act 1935 reads as follows,
281—Objections to informations, amendments and postponement of trial
…
(2)When before trial, or at any stage of a trial, it appears to the court that any information is defective or that there is any variation between any particular stated therein and the evidence offered in proof thereof, the court shall make such order for the amendment of the information as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendment cannot be made without injustice.
In my view there is a variation between the particulars stated in the Information namely that the substance was 3, 4 – Methylenedioxymethylamphetamine and the substance located in the possession of the accused which was a salt of 3, 4 – Methylenedioxymethylamphetamine, but the Information is not defective.
The question that has been exercising my mind is whether I should amend the Information whereupon, based on my findings of fact a verdict of guilty would follow.
In Attorney-General's Reference (No 3 of 1987) (1987) 48 SASR 1 at 19, Legoe J said in relation to a question of whether an Information should have been amended,
However the mandate of s 281(2) arises and comes into operation when an apparently defective information is apparent to the court. In such circumstances there is a mandatory obligation on the court, namely: "the Court shall make such order for the amendment as the Court thinks necessary to meet the circumstances of the case." All this is subject to no injustice arising having regard to the merits of the case … This duty on the court is to be contrasted with the obligation placed on the accused or counsel to take objection to any defective information by demurrer, or motion to quash such information before the jury is empanelled, and not afterwards. After the jury is empanelled the court has the carriage of the proceedings, and the duty to consider the information in relation to the prosecution case and the merits of the case.
(See page 19)
There is no question of the Information being defective here. It is a question of whether the Information can be amended by me.
In R v Ayles[5] the Full Court had to consider the propriety of an amendment made by a Judge sitting as a jury in an indecent assault trial. The victim had alleged an indecent assault by the appellant at an earlier time and the appellant gave cogent evidence supported by some verifiable incidents that it had occurred at a later time. Although the allegation of the date of an offence was not a material particular, the legislation had changed in the interim so that one provision applied if the complainant was correct as to the date of the offence whereas another provision applied if the appellant was correct as to the date of the offence.
[5] (2007) 97 SASR 78
The matter was raised by counsel for the prosecution before the Judge considered her verdict but was not resolved by any actual amendment to the Information. The Trial Judge in giving her decision accepted the appellant’s evidence as to the timing of the offence and this necessitated an amendment to the Information to allege an offence against a different legislative provision.
The Judge made the amendment without reference to counsel and it was complained firstly that she had no power to make the amendment, and secondly that there was a miscarriage in making the amendment without any application having been made by the prosecutor and without hearing the appellant on the matter.
In delivering the Judgment of the Court upholding the verdict the Chief Justice stated:
In any event, the judge did not have to wait for an application from the prosecutor. If a trial judge considers that an information is defective, or that there is a variation between a particular in the Information and the evidence, the judge is entitled to raise that matter with counsel, and indeed has a responsibility to do so. A trial judge has a responsibility for the regularity of proceedings, and authority to act to ensure that they are regular: see R v West [1948] 1 KB 709 at 717. A Judge who takes the initiative in this way should, of course, give counsel an opportunity to put submissions before exercising the power to amend. But the important point is that the judge is not obliged to stand by and take no remedial action unless or until counsel makes an application for an amendment.
There is no intrusion on the role of Director of Public Prosecutions by the judge taking the initiative in this way, and making an order (if called for) after hearing submissions from counsel. There is no such intrusion because of the judge’s authority over and responsibility for the correct state of the pleadings. Of course, counsel also have a responsibility in this respect.
(See pages 86 & 87)
The reasons for the Court of Criminal Appeal of South Australia dismissing the appeal and upholding the decision of the trial judge to amend the Information without an application to amend by the prosecution, were that firstly, counsel for the prosecution had, in effect, foreshadowed an application for amendment at the close of the prosecution case and secondly, that it was not necessary for the judge to wait for an application from the prosecutor.
This matter went on appeal to the High Court and the majority upheld the decision of the Full Court. (See Ayles v R[6]).
[6] (2008) 232 CLR 410
It seems to me that in the circumstances of this case the prosecution must prove the possession of respectively MDMA, methylamphetamine and amphetamine or fail unless an amendment is made to the information.
In R v Abdulla[7] Gray J, although dissenting, set out the principles relating to the materiality of particulars and the propriety of amending them.
[7] (2010) 200 A Crim R 365
[89]   A review of relevant authority allows the recording of a number of broad principles that assist in the determination of the issues arising on this appeal:
·The rule established for criminal trials in Australia is one which requires a high degree of specificity in the accusations, charges and evidence proferred by the prosecution. The critical application of this rule is in relation to criminal pleadings.
·There is a need for defendants to know the case which they have to meet, to be supplied with proper particulars and not to be confronted with a new case at trial.
·A defendant is entitled to be apprised not only of the legal nature of the offence charged, but also of the particular act, matter or thing alleged as a foundation of the charge.
·Primary reasons for adequate particularity are that the rules of procedural fairness are to be followed so that the defendant is able to prepare a defence so as to ensure a fair trial; that the jury will all reach a decision with respect to the same incident; and to avoid a conviction being bad for duplicity.
·One purpose of the dates in an information is to deliberately identify particular alleged acts which constitute the relevant crimes and to exclude all other occasions on which similar acts may have occurred constituting other crimes.
·The statutory regime dealing with the content of informations and the need for particulars are to be found in s 277(1) of the CriminalLaw Consolidation Act 1935 (SA) and r 4(3) in Sch 3 of the Act.
·Ordinarily, there is a clear distinction drawn between the elements of an offence and particulars of it. Usually failure by the prosecution to prove a particular is not fatal to the prosecution case.
·Exceptions arising from statute have been acknowledged in many cases. For example, where a statute provides that an information for offences of the relevant kind is to be laid within a certain time frame, the date will be rendered material and part of the essence of the offence.
·Likewise, in sexual offences where the age of the alleged victim is an essential element of the charge, courts have concluded that allegations as to time may be rendered material.
·The consequences of providing particulars is governed by the significance to be attached to them in the circumstances of the case. This requires attention to be given to the terms of any statutory provision stating the offence in question. It also requires attention to the way the particular trial was conducted.
·In certain circumstances it would be prejudicial to the defendant for the prosecution to depart from its particulars or to seek to make out a case substantially different from that particularised.
·Those circumstances may arise out of the nature of the evidence in a particular case, and may make it unfair or oppressive to an accused person for the prosecution to be permitted to depart from its particulars. Such circumstances may also arise from the manner in which the trial has been conducted.
·Dates or date ranges in particulars of a charge are generally not to be regarded as an element of the offence or even as a material matter unless they are an essential part of the offence.
·Time may be of the essence of the offence when an act is criminal only if done within a certain time of some other act or event. The following are examples: when it is an essential ingredient of a particular offence that certain consequences should follow a particular act; when it is an essential ingredient of a particular offence that the act alleged was committed between certain hours of the day or night, and; when the prosecution for a particular offence must be commenced within a certain time of the commission of the criminal act alleged.
·Regardless of whether time is an element of the offence or of essence to the offence, the circumstances of the case, such as forensic issues raised at the trial, including alibi or lack of opportunity, may make the date vital. In such circumstances, even though the particulars of when an offence is alleged to have committed are not an element of the offence, the proof of the date or date range alleged may be material to the integrity of the criminal process. As Derrington J observed in Jacobs:
Apart from the exceptions which have been mentioned, it is going too far to say that the time alleged in the indictment may become an element of the offence. Rather the correct view is that the nature of the allegations in the Crown case may be such that the prosecution is fixed to a certain date and it would be wrong to countenance any departure from that point when it is especially relevant to proof, alibi or the like.
(Emphasis added)
[Footnotes omitted by me]
[90]   The materiality of particulars in any given case may be assessed having regard to the above principles. Ultimately, the question is one of fairness and justice in the particular case. Against the above background, it is of assistance to consider examples of averments found by the court to be material averments. These include.
·In Pfitzner, Bray CJ reasoned that an alibi defence could render a particularised date as being vital.
·In Hackwill, the Victorian Full Court reasoned that a particularised date was an essential part of the alleged offence as the relevant statute provided that any information was to be laid within 12 months of the alleged date of the offence.
·In Thompson, Gaudron J instanced the importance of location with respect to an offence of committing an act in a public place. In these circumstances, locality of the offence would be an essential element of the offence and require proof beyond reasonable doubt.
·In Stringer, Adams J commented that in principle there is no difference between time and place as they are both merely the coordinates identifying an occasion, and depending on the circumstances, these coordinates may become material averments requiring proof beyond reasonable doubt. The particular circumstances of a given case require close consideration.
·In Radic, the court identified that the particularisation of items allegedly stolen was of the essence of the offence of theft, and a plea of guilty to that offence but a denial of theft of the property particularised in the charge, was unsatisfactory.
·In WGC Kirby J instanced sexual offences where the age of the alleged victim is an essential element of the charge.
·In WGC Kirby J pointed out that the date of an alleged offence may be material when the penalty to be imposed following conviction may be affected.
·In VHP Gleeson CJ noted that two circumstances where the prosecution may need to prove an inessential fact on an information, are where the requirements of procedural or substantive fairness may restrict the capacity of the prosecution to depart from particulars, and where the evidence may be such that it would not be open to a jury, acting reasonably, to treat one part of the prosecution case as reliable and another part as unreliable.
·In Westerman, Lee CJ highlighted the importance that variations in the evidence involving a departure from particulars may have on the credit of witnesses and the weight to be attached to their evidence.
[91]   These examples illustrate the variety of situations where particulars may be rendered material and the need to closely examine the circumstances of any case. If a particular, whether date, location or action, is rendered vital in any case, that particular must be proved beyond reasonable doubt.
[92]   The above observations demonstrate that the limits of an information and the particulars thereto are critical to defining the ambit of a case against a defendant.
Whether it is appropriate to amend particulars has been the subject of discussion by Stanley J recently in the matter of Police v Adams[8].
[8] [2011] SASC 155
His Honour stated at paragraph 72,
72 The importance and sufficiency of particulars in a given case will depend on the circumstances of the case, the terms of any statutory offence and the conduct of the case at trial. In some cases, particulars may serve only as a guide to the essential matters that the prosecution must prove. In other matters, however, particulars assume greater significance because of the nature of the offence pleaded and the issues contested at trial. Where particulars become material to the conduct of a prosecution, departure from them should not be sanctioned by the Court. In such circumstances, as Gleeson CJ observed in R v VHP:
... The requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars.
73 In Hayes v Kenning Duggan J referred to the importance of particulars in defining the issues and contributing to the fairness of the proceedings. His Honour referred to Godbee v Samuels in which Mitchell J said at [239]:
If there is any variance between the matters alleged in the particulars and the evidence tendered the Special Magistrate should at the time that evidence is tendered consider any prejudice which the defendant may suffer, and should also have regard to such variance in considering his verdict.
74 Duggan J drew a distinction between particulars on the face of the complaint which constitute the particular act alleged as the foundation of the charge and particulars provided in addition to the facts contained in the statement of the charge. In that context his Honour said:
If a material averment in the complaint itself has not been proved then the prosecution must fail.
75 This position was more recently confirmed in Kyriakopoulos v Police by White J.

I have come to the conclusion that it would be inappropriate for me to amend the Information of my own motion notwithstanding that the majority in Ayles v R would indicate that it is not a pre-requisite for me to do so that there be an application by the prosecution.
I am mindful too that the majority in Ayles in the High Court seemed to be less enthusiastic than the Full Court of South Australia in supporting the proposition that the Trial Judge has a duty to amend under s 280(1)(2) of the Criminal Law Consolidation Act wherever there is demonstrated to be a variance between the pleading and the particulars.
This issue of the identity of substances located became apparent for the first time during the cross examination by Mr Retalic of the expert forensic chemist, Mr Pigou.
Mr Retalic addressed on the issue and the prosecutor was given a right of reply having not dealt with the topic during her address.
The prosecutor in her reply maintained the submission that “the prosecution has proved that the substance, the subject of, if we take Count 1 is 3, 4 – Methylenedioxymethylamphetamine. That is the evidence that Mr Pigou gave. That substance, the characteristics of that drug, as well as all other amphetamine – based drugs are that they are isomers, that it is salted, but it is that substance, 3, 4 – methylenedioxymethylamphetamine, that is what is particularised and in my submission that is what the prosecution has proved, and I rely on the evidence of Mr Pigou and Mr Cox for that”. (See T539 – 540).
No application was made by the prosecution to amend the Information.
The hearing ended on Wednesday 2 November 2011. I remanded the accused to Monday 7 November 2011 in order to prepare my judgment.
On that day I advised I was not yet ready to deliver judgment and I would hear the parties if they wished to put submissions on whether I could amend the particulars myself, no application to amend ever having been made by the prosecution.
I indicated that I would deliver judgment in the matter on Wednesday 16 November 2011 as in the interim it was necessary for me to travel to Port Augusta for circuit court.
On Friday 11 November whilst at Port Augusta I received via email a submission from the prosecution and a request to amend the particulars.
The proposed amendment does not deal with the issue, in my view.
The application sought to amend by inserting as follows:
(a)     Count 1: after “Ecstasy” add “or an isomer thereof”,
(b)    Count 2 & 6: after “methylamphetamine” add “or an isomer thereof”,
(c)     Count 3: after “amphetamine” add “or an isomer thereof”.
No application has been made to me by the prosecution to seek to amend the Information by pleading that the accused was in possession of the salt of the particular substance referred to.
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.
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[9]).
[9] (1995) SASC 5132
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.
On appeal against the conviction of the appellant on a retrial Mulligan J said the following at paragraph 36 - 43,
36. In the trial in the District Court the Crown was very specific in the particulars in the Information as to when the two incidents were said to have occurred. So much so that even though the trial was about incidents said to have occurred nearly nine years earlier, the accused had been told precisely when it was that he had allegedly offended. He came to Court to face the charges on that basis. The prosecution had given to him “every fair opportunity to prepare his defence to what is charged and particularised against him”: per Stanley J in R v Phil Maria (1957) StR Qd 512 at p523 cited in Jacobs (supra) at p542.
37. The ability to amend the particulars at the trial to conform with the evidence may avoid injustice, particularly if the accused is granted an adjournment to investigate the new situation and make a defence as observed in Pfitzner. However, such a course was not appropriate at the first trial because the evidence did not depart from the particulars. This is simply a case where the appellant went to trial to meet specific allegations. He was entitled, if not obliged, to conduct his defence on that basis. The Crown amended the Information at the conclusion of its case to broaden by one day the period of time during which the incidents are said to have occurred. The appellant conducted the defence case accordingly. He made his choice about giving evidence. He called evidence to prove conclusively that he could not have committed the first alleged offence of rape as particularised and then closed his case. No doubt he intended to argue that as the woman was wrong about the first charge, it would be unsafe to convict him of the second count on her evidence. All the evidence at the trial had been given, only addresses remained. The Crown was permitted to amend the particulars again but not in accordance with any evidence which had been given. Presumably, the amendment was made to accommodate the thesis that the woman was mistaken in her evidence, but there was no basis in the evidence as it stood to suggest a mistake. As Mr Rofe correctly acknowledged at the resumed hearing, the evidence could not justify verdicts of guilty.
…
39. The question is whether these circumstances justified the drastic step of a permanent stay of the proceedings. It is not a question of whether the appellant raped the woman as identified by the Supreme Court Judge who confirmed the decision of the District Court Judge who dismissed the application for a stay. If that was the question all proceedings should continue so that the jury could discharge its constitutional function and reach a verdict.
…
41. The appellant was obliged to fight the trial on the basis chosen by the Crown which remained throughout until the close of evidence. In my view, the same must be said of the Crown in the circumstances. It was too late to try and change the goal posts, if not the code, at such a late stage.
…
43. It follows that special care must be taken in particularising offences of this nature.
As in all cases, every effort must be made to ensure that the trial of such cases is fair. Where the particulars of offences and the evidence in support of the Crown case coincide, the Crown should, in my view, be bound by the particulars. [my underlining]
Perry J, said in the same case at paras 4, 5 and 6,
4. In this case, the first trial was conducted on the basis of precise allegations as to dates which, in fairness to the accused, must be regarded as binding on the Crown.
5. The accused met that case by evidence which would have led to an acquittal. He was denied the chance, indeed, the certainty, of that acquittal by the ruling of the learned trial Judge that there was a "mis-trial". In fact, there was no mis-trial. I must say that I am surprised that the learned trial Judge yielded to the suggestion by the Crown that there was. All that happened was that the defence case extinguished any possibility that there could be a finding of guilt on the Crown case as it had been presented and particularised in the evidence of the prosecutrix.
6. An acquittal should have been entered then and there. The accused could then have pleaded autrefois acquit to any further indictment.
I decline to amend the particulars.
The prosecution has not proved the accused was in possession of MDMA.
I have considered the prosecution application received on Friday 11 November to amend the Information to insert in Counts 1, 2, 3 & 6 after the reference to the substance the words “or an isomer thereof”.
I will not allow this amendment for the reasons that I have already given.
There is a further reason why I will not permit the amendment. In my view it would not permit the prosecution to succeed in any event because it does not deal with the problem that whether or not the base substances were isomers, the fact is that the substances found in possession of the accused were still salts.
It seems to me that there would be a further difficulty with the proof offered in this trial if the foreshadowed amendment was permitted.
Regulation 5(1) declares to be controlled drugs inter alia,
(a) The natural or synthetic form of a substance listed in Schedule 1;
This must mean both natural and manmade forms of the substance.
Isomers are explained by Mr Pigou as chemicals which have the same formula but have different structures, that is they have the same components but arranged in different orders. (See T474)
If the prosecution amendment was allowed it would be necessary for them to prove under Regulation 5(1)(b) that the isomer is an “isomer of the natural or synthetic form of a substance listed in Schedule 1” I do not know, because there was no evidence led, what is the natural or synthetic form and so it is impossible for me to know whether “any salt derivative or isomer is of the natural or synthetic form”. (See 5(1)(b)) How can one say a substance is an isomer of a synthetic form as, if it were not a natural form, then it would have to be a synthetic form of itself! Thus it would be a synthetic form of the drug in Schedule 1 and it would be superfluous to say it is a synthetic isomer of a synthetic form of MDMA. Putting it another way any form of MDMA that is not natural must be synthetic and therefore any isomer of it must also be synthetic so to assert a form of MDMA as an isomer of a synthetic form is merely to assert it as a synthetic form and recourse need only be had to regulation 5(1)(a) and regulation 5(1)(b) would be superfluous.
It seems to me that this would be a fundamental problem for the prosecution if the amendment was made to allege possession of an isomer of MDMA.
Either way, the prosecution must fail in establishing the proof of the substance as either MDMA or an isomer of MDMA when it is a salt of MDMA.
3. The substance was in a trafficable quantity
Section 32 (5) of the Controlled Substances Act reverses the onus where there is possession of a trafficable quantity of a controlled drug.
Trafficable quantity is defined in s4 of the Act as follows:-
(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 prescribed as a trafficable quantity for any mixture containing the drug; or
(iii)a number of discrete dosage units of the mixture that equals or exceeds the number of discrete dosage units prescribed as a trafficable quantity for any mixture containing the drug; or
(b)in relation to a controlled drug that is not contained in a mixture—a quantity of the drug that equals or exceeds the amount prescribed as a trafficable quantity for the drug in its pure form; or
(c) …
One then has to look for the amount prescribed as a trafficable quantity which is set out in Schedule 1 in relation to controlled drugs.
Regulation 6(b) of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 relevantly reads as follows,
(6) For the purposes of the definition of trafficable quantity in section (4)(1) of the Act, the quantity of a mixture containing a particular controlled drug prescribed as a trafficable quantity for any mixture containing the controlled drug is the amount (if any) listed in the column headed “Trafficable (mixed)” of the tables in part 1 or 2 of Schedule 1 opposite the entry listing the controlled drug.
The trafficable quantity is set out in Schedule 1 in relation to controlled drugs.
In relation to MDMA (& methylamphetamine and amphetamine) it is 2 grams when mixed.
No amount however is prescribed for a salt declared to be a controlled drug under Regulation 5 nor is there any amount prescribed for an isomer.
The prosecution in their written argument submitted on 11 November 2011 concede that if I were to allow the amendment that they request they would not be able to rely on the presumption.
In my view they are not allowed to rely on the presumption in any event because there is no prescribed amount for a salt.
Accordingly, this being a penal statute and to be interpreted against the Crown where there are ambiguities, in my view I cannot assume that 2 grams would be the appropriate prescribed amount for what is proved to be a salt of MDMA especially when the evidence is that it may be in an entirely different form to the pure base substance.
There is no entry in the Regulations that tells me what the prescribed quantity is in relation to a salt of MDMA. I have already found that the salt of MDMA is a different substance to MDMA. There is no warrant for me to assume that MDMA sulphate for example, is to have the same trafficable quantity as the base MDMA.
Although Regulation 6(6) refers to mixtures I do not think that it is referring to a mixture in the sense of, for example, MDMA sulphate where there has been a chemical reaction between sulphuric acid and MDMA to produce an entirely different substance. In my view this is not a mixture and I refer to the scientific definition and my previous discussions on it and the remarks of Doyle CJ in R v Tennant that I have referred to.
In my view I must decide the case on the basis that although I am satisfied that the accused was in possession of more than 2 grams of a salt of MDMA there is nothing to indicate that 2 grams is the prescribed amount for the bringing into effect of the reverse onus.
I will decide the matter on the basis that I am required to be satisfied that the accused possessed the MDMA salt for sale beyond reasonable doubt.
4. The accused possessed the substance for the purpose of sale
I am so satisfied due to the value of the substance, the fact that there appeared no apparent reason to carry it around in the motor vehicle in that quantity unless it was to dispose of for sale and the fact that there were no accoutrements of the user located in the car of the accused nor in his home on 1 April 2009 or on the later occasion of 25 July 2009 and the fact that $1,120 in cash was located in the bumbag in the vehicle.
The MDMA located was present in a large quantity. There was no evidence in the Nissan motor vehicle or at the accused’s home that he was a user of MDMA or its salts. The amount of drug was valuable. There seems no reason for it to have been in his vehicle unless it was to be sold or traded.
I find the element proved beyond reasonable doubt.
I find it proved beyond reasonable doubt that the accused had the relevant belief concerning the sale of the MDMA namely that the drug was to be sold by him.
5. Did the accused know he had possession of an illegal substance?
I have no doubt and I find that the accused must have known that the substance was an illegal substance. The packaging of the substance and the presence of defensive weapons in the car indicates to me that he knew the substance was illegal.
Verdict: I return a verdict of not guilty through lack of proof of the second element of the charge.
Count 2 - Trafficking in Methylamphetamine.
1. The accused was knowingly in possession of a substance
The substances referred to in item Number 09/A79253-3, 09/A79253-5 and 09/A79253-8 were all located in the Nissan motor vehicle by Sergeant Arthur.
In the back passenger seat behind the driver was located $51,000 in bank notes in a plastic bag. The accused claimed ownership of this when spoken to by Sergeant Arthur. Close to the plastic bag was a juice bottle with white powder in it inside a sock.
Inside the bumbag, that I have already spoken of, was a small Metamucil jar containing 2 g of white powder.
The fact that some of the substance was located near money which the accused claimed, the fact that it was on the back seat and unconcealed, the fact that the accused was the sole occupant of the vehicle and it was registered to him and the fact that the items were valuable lead me to the conclusion that they were not simply left there by another person but that they were under the control of the accused and that he was in possession of them. I make this finding beyond reasonable doubt.
2. The substance was a controlled substance, methylamphetamine.
For reasons that I have already discussed I am of the view that the substance was not methylamphetamine but rather was a salt of methylamphetamine which was a different substance entirely. The substance possessed namely a salt of methylamphetamine was a controlled substance but not the controlled substance that is the subject of this Count.
There is a variation between what was particularised in the Information and what has been proved.
For the reasons I have already discussed I am not prepared of my own motion to amend the Information nor am I prepared to make the amendment sought by the prosecution. Accordingly this element has not been proved.
3. Was the substance in a trafficable quantity?
For the reasons already discussed I am not able to conclude that there was any trafficable quantity prescribed for a salt of methamphetamine and hence I must decide this case without the benefit of the reverse onus.
4. Did the accused have possession of the substance for the purpose of sale?
Having regard to the value of the substance, the fact that no accoutrements of a user of the substance were located either in the vehicle or at the accused’s premises on either 1 April or 25 July 2009 and having regard to the fact that there does not appear to be any innocent purpose for the possession of the substance in the vehicle and having regard I am satisfied beyond reasonable doubt that the substance was for the purpose of sale.
5. Did the accused know it was an illegal substance?
Due to the way it was packaged, and his secreting of the substance in his home on 1 April and 25 July 2009, I am satisfied beyond reasonable doubt he knew the substance was illegal.
Verdict: Not guilty though lack of proof of the second element.
Count 3 – Trafficking in a Controlled Drug
1. That the accused was knowingly in possession of a substance
The moist clumps of ground brown powder were located in the silver tin in the kitchen in a glass jar. (See Photo 2, Exhibit P4) I am satisfied no one else resided at the premises and the accused possessed the items in the premises. He was the owner of the property and exercised control over everything within the house. I conclude he possessed the brown powder.
2. The substance was amphetamine
I am satisfied that the substance was a salt of amphetamine. (See Exhibit P7, Item No: 09/A79299-16)
For the reasons I have already expressed in relation to MDMA I find that the substances located was a salt of amphetamine which is a different drug to amphetamine and that the allegation on the Information that the substance was amphetamine is a material allegation. It has not been proved.
For reasons I have expressed I am not prepared to amend the Information.
Accordingly the element has not been proved.
3. Was the substance in a trafficable quantity?
For reasons I have already expressed in relation to MDMA in my view there is no prescribed quantity in existence for a salt of amphetamine.

There is no basis for the reverse onus to apply for reasons discussed.
4. Did the accused have possession of the substance for the purpose of sale?
Due to the fact that there were no accoutrements of a user of amphetamine located in either the vehicle of the accused on 1 April or in his house on that occasion or in his house on 25 July, having regard to the value of the substance located, having regard to the fact that there appears to be no other use for it by the accused than to sell it, I am satisfied beyond reasonable doubt that the accused possessed the substance for the purposes of sale.
5. Did the accused know the substance was illegal?
The fact that the material was secreted in a silver tin in the kitchen and the fact that the accused had secreted other illegal drugs in the motor vehicle on 1 April means, in my view, that it is proved beyond reasonable doubt that he knew the substance was illegal.
Verdict: I return a verdict of not guilty due to want of proof of the second element.
Count 5 - Possessing a Firearm without a Licence
1. Did the accused possess a firearm?
I am satisfied beyond reasonable doubt that a class H firearm was located in a jar at the accused’s premises on 1 April 2009 in a silver tin in a cupboard in the kitchen. (See Photo 4 of Exhibit P3)
It is not of consequence, in my view, that the firearm was in a disassembled state as all the parts were there together, which, when assembled, enabled the weapon to operate.
I am satisfied that there was no-one else living in the premises at the time of the police raid that the accused was the registered owner of the premises, that the weapon being in a readily accessible area in the kitchen the accused was aware of its presence that the accused exercised possessory rights over all the other items located in his premises and that he exercised possessory rights over the firearm. I note also that the accused was in possession of other illicit items in the same tin namely amphetamine and that he was in possession of similar drugs e.g. methylamphetamine (& MDMA) in his car. I find that element proved beyond reasonable doubt.
2. Was it a Class H firearm?
I am satisfied that the item was a class H firearm which is defined as a handgun. (Statement of Rex De Laine, Exhibit P9)
3. Did the accused hold a firearm licence?
I am satisfied that the accused did not hold a firearms licence authorising possession of that firearm beyond reasonable doubt. (Statement of Agreed Facts, Exhibit P6)
Verdict: I find the charge proved beyond reasonable doubt and I return a verdict of guilty.
Count 6 – Trafficking in a Controlled Drug namely methylamphetamine
On 25 July 2009 police searched the accused house at Burton. A quantity of amphetamine was located concealed in a sock in the wardrobe of the main bedroom. The substance weighed 25 g and contained 14.8 g of methylamphetamine. Also in the drawer and in a sock was a quantity of cash in the amount of $1,800.
In fact the substance was a salt of methylamphetamine. It was not methylamphetamine.
1. Accused was knowingly in possession of a substance
I accept the evidence that suggests that there was no-one else living at the premises but the accused. The premises were registered in his name and there were no other items of clothing located to suggest that there was a second person living at the premises. The substance was located in the wardrobe of the accused in his bedroom. He was in control of the objects in his house and no-one else had or shared control.
I am satisfied beyond reasonable doubt that the accused was in possession of the substance.
2. The substance was methylamphetamine, a controlled drug
I have already indicated that in my view the substance was a different substance to methylamphetamine. It was a separate controlled drug namely a salt of methylamphetamine.
I will not amend the particulars and in my view the prosecution is bound to prove that the substance is methylamphetamine.
They have failed to do so, this element has not been proved beyond a reasonable doubt.
3. The substance is of a trafficable quantity
For the reasons I have already discussed I am of the view that no trafficable quantity has been provided for salts of methylamphetamine and hence I must decide this case without the benefit of the reverse onus.
4. Was the accused’s possession for the purpose of sale?
Having regard to the value of the substance, the fact that no accoutrements of a user of the substance were located in the premises on this occasion or on 1 April when the police searched the premises nor in the accused vehicle on 1 April when that was searched and having regard to the fact that there does not appear to be an innocent purpose for the possession of the substance and due to the fact that a large sum of money was secreted with the substance I am satisfied beyond reasonable doubt that the substance was for the purpose of sale.
5. Did the accused know it was an illegal substance?
In my view the presence of the firearm and that fact that the substance was secreted in socks and the fact that a large sum of money was similarly found secreted with the socks indicates to me that the accused knew that the substance was an illegal substance.
Verdict: Not guilty due to the want of proof of the second element.
Count 7 – Possession a Firearm without a Licence
On 25 July 2009 a search of the accused bedroom located a class H firearm secreted in the mattress of the accused.
1. Did the accused possess a firearm?
I am satisfied beyond reasonable doubt that the firearm was located in the mattress of the accused. I am satisfied beyond reasonable doubt that no-one else resided at the premises. There was a slit in the mattress whereby the firearm was inserted therein. The firearm was readily accessible to a person sleeping on the bed.
The accused had exercises possessory rights over all the other items located in the premises and was the registered owner of the premises. I am satisfied that he exercised possessory rights over the firearm. I find that element proved beyond reasonable doubt.
2. Was it a class H firearm?
I am satisfied that the item was a class H firearm. (Statement of Andrew Plummer, 1 December 2009, Exhibit P8) A class H firearm is defined as a handgun.
3. Did the accused hold a firearm’s licence?
I am satisfied that the accused did not hold a firearm’s licence authorising possession of that firearm. (Statement of Agreed Facts, Exhibit P6)
Verdict: I find the charge proved and I return a verdict of guilty.
Summary of Verdicts
Count 1 – Trafficking in Ecstasy (MDMA)
Not Guilty.
Count 2 - Trafficking in Methylamphetamine
Not Guilty.
Count 3 – Trafficking in Amphetamine
Not Guilty.
Count 5 – Possessing a Firearm without a Licence
Guilty.
Count 6 – Trafficking in Methylamphetamine
Not Guilty.
Count 7 – Possessing a Firearm without a Licence
Guilty.
I will hear submissions on penalty.

[2] (1980) 147 CLR 134 at 139