R v Willingham

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.