REILING v Britton

[2008] WASC 184

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   REILING -v- BRITTON [2008] WASC 184

CORAM:   McKECHNIE J

HEARD:   22 AUGUST 2008

DELIVERED          :   22 AUGUST 2008

FILE NO/S:   SJA 1054 of 2008

BETWEEN:   ANDREW REILING

Appellant

AND

STEPHEN ANDREW DAVID BRITTON
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE V C EDWARDS

File No  :NO 367 of 2007

Catchwords:

Criminal law - Drug offences - Diazepam not a schedule drug - Plea of guilty - No offence

Legislation:

Nil

Result:

Appeal allowed
Conviction quashed

Category:    B

Representation:

Counsel:

Appellant:     Mr A J Maughan

Respondent:     Mr H D Leith

Solicitors:

Appellant:     Andrew Maughan & Associates

Respondent:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Nil

1. McKECHNIE J:  Following the arrest and subsequent withdrawal of charges of possessing a prohibited drug in respect of a prominent Western Australian, police began an examination of their files going back a number of years.  As a result, six matters have been identified where persons were convicted, following their pleas of guilty, of possession of a prohibited drug, namely, diazepam.

2. Each has now sought an extension of time within which to appeal and leave to appeal.  I directed that the extensions of time, applications for leave to appeal and the appeals be heard together.  In each case the respondent has filed submissions conceding the appeals.  In each case the prohibited drug was said to be diazepam.  The appellant also pleaded guilty to possession of an implement; that conviction is unchallenged.

3. Diazepam is a benzodiazepine derivative and is widely prescribed.  It is a drug capable of addiction and misuse.  In order to be a prohibited drug under the Misuse of Drugs Act 1981 (WA) the drug must be listed in sch 1 of that Act or in the Poisons Act 1964 (WA), sch 8 and sch 9, or be the subject of an order under the Poisons Act as a specified drug.  Diazepam is not listed in any of those schedules or in any order.  Accordingly diazepam is not, in Western Australia, a prohibited drug.  Notwithstanding the plea of guilty by the appellants their conviction is not legally sustainable because no offence was committed.  The concession by the respondent is rightly made.

4. The orders will be that time within which to appeal is extended, leave to appeal is granted, the appeal is allowed, the conviction quashed.  The magistrate imposed a global fine for both offences.  I order that $300 of the fine be remitted.