Rusiecki v The State of Western Australia
[2023] WASCA 81
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RUSIECKI -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 81
CORAM: BUSS P
MITCHELL JA
HALL JA
HEARD: 19 APRIL 2023
DELIVERED : 23 MAY 2023
FILE NO/S: CACR 52 of 2022
BETWEEN: DANIEL ANDREW RUSIECKI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: VERNON DCJ
File Number : IND 1097 of 2020
Catchwords:
Criminal law - Appeal against conviction - Statutory interpretation - Drug offences - Appellant convicted on a plea of not guilty of possession of methylamphetamine with intent to sell or supply it to another - Whether methylamphetamine was a 'prohibited drug' on the proper construction of the Misuse of Drugs Act 1981 (WA) at the time of the alleged offence
Legislation:
Medicines and Poisons Act 2014 (WA), s 3, s 4, s 132
Medicines and Poisons Regulations 2016 (WA), reg 3, reg 6
Medicines and Poisons (Validation) Act 2022 (WA), s 4
Misuse of Drugs Act 1981 (WA), s 3, s 4(1), s 6(1), sch III, sch V, sch VII
Poisons Standard June 2019 (Cth)
Therapeutic Goods Act 1989 (Cth), s 52A, s 52D
Result:
Extension of time granted
Leave to appeal granted
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | T R Stephenson |
| Respondent | : | L M Fox SC & L G Knuckey |
Solicitors:
| Appellant | : | T. R. Stephenson - Barrister |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Clegg v The State of Western Australia [No 2] [2017] WASCA 30; (2017) 265 A Crim R 224
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303
MacCarron v Coles Supermarkets Australia Pty Ltd [2001] WASCA 61; (2001) 23 WAR 355
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee [2007] FCA 1352; (2007) 163 FCR 451
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Stephen v The Queen [2022] HCA 31; (2022) 96 ALJR 871
Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73
JUDGMENT OF THE COURT:
Summary
The issue raised by this appeal is whether methylamphetamine was a prohibited drug for the purposes of the Misuse of Drugs Act 1981 (WA) (Drugs Act) from 1 February 2019 to 19 November 2019. The appellant was convicted of an offence against the Drugs Act involving methylamphetamine, committed on 16 August 2019. He contends that, on the proper construction of the Drugs Act, methylamphetamine was not a prohibited drug at that time. He appeals against his conviction on that basis.
The term 'prohibited drug' is relevantly defined under provisions of the Drugs Act and associated provisions of the Medicines and Poisons Act 2014 (WA) (MP Act). Under those provisions, the status of methylamphetamine as a prohibited drug depends on it being classified by the Medicines and Poisons Regulations 2016 (WA) (MP Regulations) as a 'Schedule 8 poison'. As at 16 August 2019, the MP Regulations classified a substance listed in Schedule 8 of the Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP) to be a Schedule 8 poison. Also at that time, 'SUSMP' was defined by the MP Regulations to mean the document set out in Schedule 1 of the current Poisons Standard. The current Poisons Standard is defined to mean the document last prepared under s 52D(2)(b) of the Therapeutic Goods Act 1989 (Cth) (TGA). Section 52D(2)(b) of the TGA provides for the Secretary to the Commonwealth Department of Health to prepare legislative instruments called 'Poisons Standards'.
At all material times, Poisons Standards made under s 52D(2)(b) of the TGA have listed methylamphetamine as a substance in Schedule 8 of the substantive part of the standards. The issue in this appeal arises because of a format change in the legislative instruments issued by the Secretary from 1 February 2019. Up until that time, the substantive part of the Poisons Standard was set out in Schedule 1 of the legislative instrument. From 1 February 2019, Schedule 1 of the legislative instruments repealed the previous Poisons Standard and the substantive part of the new Poisons Standard was set out in Schedule 2 of the legislative instruments.
The appellant contends that, from 1 February 2019, the definition of the SUSMP in the MP Regulations did not refer to the substantive part of the Poisons Standards. This is said to be because the MP Regulations referred to the document set out in Schedule 1 of the current Poisons Standard at a time when the substantive part of the Poisons Standards was set out in Schedule 2 of the legislative instrument.
On 20 November 2019, the MP Regulations were amended to remove the reference to Schedule 1 of the current Poisons Standard in the definition of 'SUSMP'. However, this amendment did not affect the position from 1 February 2019 to 19 November 2019. The appellant contends that methylamphetamine was not a prohibited drug between those dates, including on 16 August 2019 when he was found in possession of methylamphetamine.
The State advances two answers to the appellant's ground of appeal. First, the State says that, on their proper construction, the MP Regulations do prescribe substances listed in Schedule 8 of the substantive part of the Poisons Standard as a prohibited drug. If that contention is wrong, then the State says that the position is cured by the Medicines and Poisons (Validation) Act 2022 (WA) (Validation Act). Although the Validation Act only commenced operation on 1 December 2022 (after the appellant's trial), the State says that it operates to sustain the appellant's conviction.
For the following reasons, in our view the MP Regulations, on their proper construction under the law in force at the date of the alleged offence, did operate to prescribe methylamphetamine as a prohibited drug for the purposes of the Drugs Act. The reference to Schedule 1 in the relevant definition at that time denoted the substantive part of the Poisons Standard promulgated at the time the MP Regulations were made that was adopted as in force from time to time. The definition operated to adopt the substantive part of substituted Poisons Standards, whether those substantive provisions were in Schedule 1 or some other designated part of the legislative instrument made under the TGA. The trial judge's ruling that methylamphetamine was a prohibited drug at the time of the appellant's alleged offence was therefore correct. The appeal should be dismissed on that basis.
It is therefore unnecessary to finally determine whether the Validation Act would require this appeal to be dismissed even if methylamphetamine was not a prohibited drug under the law in force at the time of the alleged offending. In our view, there is no merit in any of the reasons advanced by the appellant for contending that the Validation Act does not apply. However, there remains a question as to whether the Validation Act would apply to deprive an accused person of the benefit of a judgment of acquittal entered prior to the enactment of the Validation Act, or of a right to have a wrongful conviction entered prior to the enactment of the Validation Act set aside. Given that it is unnecessary to resolve this question and the manner in which the appeal was argued, we would not finally resolve that question.
Proceedings at trial
The appellant was charged with 11 drug offences by indictment dated 12 July 2021 (Indictment). Count 9, which is the presently relevant count, charged that contrary to s 6(1)(a) of the Drugs Act:
On 16 August 2019 at Midland, Daniel Andrew Rusiecki and Joshua Clifford Slanzi had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
On Friday 26 November 2021 (the working day prior to the commencement of the trial), counsel for the appellant filed written submissions in which he contended that, as a matter of law, methylamphetamine was not a prohibited drug at the time of the alleged offence.
On Monday 29 November 2021, before the appellant was arraigned on the Indictment and in the absence of the jury, the trial judge heard brief oral submissions supplementing the written submissions filed on the issue.[1] The trial judge then made a ruling on the question of law, holding that methylamphetamine was a prohibited drug within the meaning of the Drugs Act as at 16 August 2019.[2]
[1] Trial ts 59 - 62.
[2] Trial ts 64 - 67.
Later on 29 November 2021, the appellant was arraigned on the Indictment. He pleaded 'not guilty' to count 9 and 'guilty' to all other counts on the Indictment.[3] He did not enter a plea under s 126(1)(b) of the Criminal Procedure Act 2004 (WA), to the effect that the offence charged in count 9 of the Indictment was not an offence known to law.
[3] Trial ts 76 - 78.
The prosecution case in relation to count 9 was that a package containing 20.2 g of methylamphetamine was located by police in a vehicle driven by the appellant during a traffic stop on 16 August 2019.[4] The prosecution case was that the appellant was in possession of the methylamphetamine jointly with Mr Slanzi, or alternatively that the appellant assisted Mr Slanzi to have possession of the methylamphetamine.[5] The State relied on the presumption in s 11 of the Drugs Act to prove an intention to sell or supply.[6]
[4] Trial ts 107 - 108.
[5] Trial ts 113 - 114.
[6] Trial ts 110 - 111.
It is unnecessary to detail the evidence led at trial, save to note that two police officers gave evidence of locating a package in the vehicle driven by the appellant on 16 August 2019. The package was deconstructed and a white powder found in the package was analysed to comprise approximately 79% methylamphetamine.[7]
[7] Trial ts 132 - 133, 135; exhibit 8.
The trial judge directed the jury that one of the elements of the offence charged in count 9 was that 'there was a prohibited drug'. The trial judge said that it did not appear to be in dispute that the substance found by police in the car on 16 August 2019 was methylamphetamine. Her Honour directed the jury that, as a matter of law, methylamphetamine 'is a prohibited drug and was a prohibited drug on 16 August 2019'.[8]
[8] Trial ts 407.
The jury found the appellant guilty of the offence charged in count 9 of the Indictment by unanimous verdict.[9] The trial judge then entered judgments of conviction against the appellant on all counts on the Indictment.[10]
[9] Trial ts 449.
[10] Trial ts 450.
On 7 February 2022, the appellant was sentenced to 22 months' immediate imprisonment in respect of count 9 of the Indictment, as part of a total effective sentence of 2 years 6 months' immediate imprisonment. The appellant was made eligible for parole, and the sentences were backdated to 21 November 2021 to take account of time spent in custody on remand.
The appeal to this court
On 27 June 2022, the appellant filed an appeal notice in this court, appealing against his conviction of the offence charged in count 9 of the Indictment. As such, the appellant requires an extension of time in which to appeal.
The application for an extension of time was referred to the hearing of the appeal. Affidavits filed in support of the application indicate that the delay is largely a result of miscommunication and misunderstanding between the appellant and his lawyers. We would grant the extension of time in those circumstances.
The appellant's sole ground of appeal is that:
On or about 29 November 2021 Judge Vernon erred in law when she ruled that the appellant stand trial on [count 9 of the Indictment] on a charge of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply the same pursuant to s.6(1) of the [Drugs Act] where, on the proper construction of the [Drugs Act], methylamphetamine was not a 'prohibited drug' in Western Australia at the time of the alleged offence, namely 16 August 2019, and the appellant was wrongfully convicted of that charge.
The appellant's application for leave to appeal on this ground has been referred to the hearing of the appeal.
The right of the appellant to appeal against his conviction is conferred by s 23(1)(a) of the Criminal Appeals Act 2004 (WA). That Act does not give the appellant a right to appeal against a preliminary ruling on a question of law made prior to, or in the course of, a trial.
Section 30 of the Criminal Appeals Act applies in the case of an appeal against conviction by an offender. Section 30(2) provides that, unless under s 30(3) this court allows the appeal, the court must dismiss the appeal. Under s 30(3) of the Criminal Appeals Act, this court must allow the appeal if in its opinion:
(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or
(b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice.
The appellant's ground of appeal is not expressed in terms of s 30(3) of the Criminal Appeals Act. However, if methylamphetamine was not a prohibited drug for the purposes of the Drugs Act on 16 August 2019, then all three paragraphs of s 30(3) would require this court to allow the appeal. If methylamphetamine was not a prohibited drug on 16 August 2019:
(a)the appellant's possession of methylamphetamine on that date could not constitute possession of a prohibited drug so that the evidence of that possession would be incapable of establishing the commission of an offence contrary to s 6(1) of the Drugs Act;
(b)the trial judge's pre-trial ruling and consequent direction to the jury that, as a matter of law, methylamphetamine was a prohibited drug within the meaning of the Drugs Act as at 16 August 2019 would be a wrong decision on a question of law; and
(c)the appellant's conviction of possession of a prohibited drug, namely methylamphetamine, at a time when methylamphetamine was not a prohibited drug, would constitute a miscarriage of justice.
In those circumstances, it could not be doubted that a substantial miscarriage of justice would have occurred if methylamphetamine was not a prohibited drug on 16 August 2019.
At the hearing of the appeal, counsel for the appellant indicated that the ground of appeal sought to invoke all three limbs of s 30(3) of the Criminal Appeals Act.[11]
[11] Appeal ts 3 - 5.
Legislative framework
State legislation as at 16 August 2019
The following provisions of State legislation were in force as at 16 August 2019.
The Drugs Act
At all material times, s 6(1)(a) of the Drugs Act has provided:
A person commits a crime if the person —
(a)with intent to sell or supply it to another, has in his or her possession a prohibited drug[.]
Section 3(1) of the Drugs Act provides that:
[P]rohibited drug means drug to which this Act applies by virtue of section 4[.]
Section 4(1) of the Drugs Act provides that, subject to a presently immaterial exception:
[T]he drugs to which this Act applies are —
(a)drugs of addiction; and
(b)specified drugs; and
(c)whether or not they are also drugs of addiction or specified drugs, the drugs specified in Schedule I.
Schedule I to the Drugs Act contains five items describing prohibited drugs, including cannabis, cocaine, heroin, morphine, and opium. Methylamphetamine is not listed in sch I to the Drugs Act. It is common ground that methylamphetamine is not a 'specified drug' within the meaning of s 4(1)(b) of the Drugs Act. The status of methylamphetamine as a 'prohibited drug' therefore depends on it being a 'drug of addiction' for the purposes of s 4(1)(a) of the Drugs Act.
Section 3(1) of the Drugs Act defines 'drug of addiction' in the following terms:
[D]rug of addiction means —
(a)a Schedule 8 poison as defined in the Medicines and Poisons Act2014 section 3; or
(b)a Schedule 9 poison as defined in the Medicines and Poisons Act 2014 section 3[.]
There are, however, references to methylamphetamine as a 'prohibited drug' in the Drugs Act:
1.Section 3(1) of the Drugs Act defines methylamphetamine to mean 'the prohibited drug referred to in Schedule VII item 8'. That item of sch VII identifies 28 g of methylamphetamine as the quantity of that prohibited drug which requires the court to make a drug trafficking declaration under s 32A(1)(b)(i) of the Drugs Act.
2.Under s 34(1)(a) of the Drugs Act, a person who is convicted of a crime under s 6(1) 'that involves a trafficable quantity of methylamphetamine' is liable to imprisonment for life.[12]
3.Item 82 of sch V specifies 2 g of methylamphetamine as the 'quantity of the prohibited drug' which makes the presumption of intent to sell or supply in s 11(a) operative.
4.Item 80 of sch III specifies 4 g of methylamphetamine as the 'quantity of a prohibited drug' for which a person may be tried summarily under s 9 of the Drugs Act.
MP Act
[12] A 'trafficable quantity of methylamphetamine' is defined in s 34(1A) to mean a quantity of methylamphetamine not less than that specified in sch VII item 8.
The substantive provisions of the MP Act commenced operation on 30 January 2017.[13]
[13] Western Australia, Government Gazette, No 13 (17 January 2017) 403.
Section 3 of the MP Act contains the following definitions:
Schedule 8 poison means a substance that is classified by regulations made under section 4(1) as a poison included in Schedule 8;
Schedule 9 poison means a substance that is classified by regulations made under section 4(1) as a poison included in Schedule 9[.]
Section 4(1) of the MP Act provides that the Governor may, on the recommendation of the Minister, make regulations classifying a substance as a poison included in a schedule referred to in the table to that section. The table relevantly provides:
Schedule 8 — Controlled Drug
Substances which should be available for use but require restriction of manufacture, supply, distribution, possession and use to reduce abuse, misuse and physical or psychological dependence.
Schedule 9 — Prohibited Substance
Substances which may be abused or misused, the manufacture, possession, sale or use of which should be prohibited by law except when required for medical or scientific research, or for analytical, teaching or training purposes with approval of the CEO.
Section 4(2) of the MP Act provides that the Minister may recommend that a substance be identified in the regulations in any way the Minister thinks fit. Section 4(3)(a) relevantly provides that, without limiting s 4(2), a substance may be classified by reference to an adopted code.
Section 10 of the MP Act provides that, if a provision in the MP Act is inconsistent with a provision in the Drugs Act, the provision in the MP Act prevails.
Part 2 of the MP Act creates offences in relation to the manufacture, supply, use, prescription and possession of poisons. Part 3 deals with the authorisation of certain health professionals to administer, possess, prescribe, supply or use certain medicines. Part 4 deals with licensing for the manufacture or supply of poisons and permits for the use of poisons. Part 5 deals with a register of licences, permits, notices and restricted professional authorities, while pt 6 regulates the supply and prescription of a 'drug of addiction' (defined in s 77 to include a Schedule 8 poison).
Section 131 of the MP Act empowers the Governor to make regulations including regulations 'prescribing all matters that are required or permitted by this Act to be prescribed'. Section 132 of the MP Act contains the following relevant provisions in relation to the adoption of codes by regulations:
(1)In this section —
adopted code means a code that is adopted by regulations made under this section;
code means a code, standard, rule, specification or other document;
code documents, in relation to an adopted code means —
(a)the adopted code; and
(b)if the code is adopted as amended from time to time, either —
(i)the amendments to the code; or
(ii)the code as amended.
(2)The regulations may adopt a code —
(a)either wholly or in part; and
(b)with or without modifications.
(3)If the regulations adopt a code, it is adopted as in force from time to time unless the regulations provide otherwise.
MP Regulations
The MP Regulations commenced operation on 30 January 2017 (the same time as the substantive commencement of the MP Act).
As at 16 August 2019, reg 6 of the MP Regulations relevantly provided that:
Each substance, other than an exempt substance, described in an item in the Table is classified as a poison included in the Schedule specified in that item.
Table
Item
Schedule
Description of substance
7.
Schedule 8
A substance listed in the SUSMP Schedule 8
8.
Schedule 9
A substance listed in the SUSMP Schedule 9
A substance listed in Schedule 2 to these regulations
As at 16 August 2019, reg 3(1) of the MP Regulations defined 'SUSMP' in the following terms:
Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP) means the document set out in Schedule 1 of the current Poisons Standard[.]
Regulation 3(1) provides that the term 'current Poisons Standard' has the meaning given in s 3(1) of the TGA.
As at 16 August 2019, reg 3(2) of the MP Regulations provided:
For the purposes of these regulations, the definitions and interpretation provisions in the SUSMP apply to the interpretation of the SUSMP.
The MP Regulations at the relevant time made various provisions for the labelling, record keeping, transport and storage of poisons by reference to the SUSMP.
Commonwealth legislation at commencement of MP Regulations
The MP Regulations were gazetted on 17 January 2017 and came into force on 30 January 2017.[14] The Regulations had not been materially amended between 17 January 2017 and 16 August 2019.
[14] Western Australia, Government Gazette, No 14 (17 January 2017) 443 - 586.
Between January 2017 and August 2019, the relevant provisions of the TGA were the same.
Part 6-3 of the TGA makes provision in relation to the scheduling of substances. Section 52AA contains the following overview:
This Part provides the basis for a uniform system in Australia of access controls for goods containing scheduled substances.
The scheduling of substances allows restrictions to be placed on their supply to the public, in the interests of public health and safety. This is aimed at minimising the risks of poisoning from, and the misuse and abuse of, scheduled substances.
Section 52A(1) of the TGA contains the following relevant definitions for terms used in pt 6-3 unless the contrary intention appears:
[C]urrent Poisons Standard means:
(a)if no document has been prepared under paragraph 52D(2)(b)—the first Poisons Standard; or
(b)otherwise—the document last prepared under that paragraph (including as amended).
first Poisons Standard means the latest edition at the commencement of this Part of the document known as the Standard for the Uniform Scheduling of Drugs and Poisons published by the Australian Health Ministers' Advisory Council.
scheduling, in relation to a substance, means determining the schedule or schedules to the current Poisons Standard in which the name or a description of the substance is to be included.
Section 52D of the TGA makes the following provision in relation to the making, amendment and substitution of Poisons Standards:
(1)On the commencement of this Part, the first Poisons Standard is taken to have been prepared and made available by the then National Drugs and Poisons Schedule Committee.
(2)Subject to this Act and the regulations, the Secretary may:
(a)amend the current Poisons Standard; or
(b)prepare a document (including schedules containing the names or descriptions of substances or classes of substances), in substitution for the current Poisons Standard.
(3)The Secretary may exercise a power under subsection (2) on the Secretary's own initiative or following an application under section 52EAA.
(4A)An instrument made under paragraph (2)(a) or (b) after the commencement of this subsection is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the instrument.
(4B)Despite subsection 14(2) of the Legislation Act 2003, an instrument made under paragraph (2)(a) or (b) of this section may make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.
(5)In this section:
amend, in relation to the current Poisons Standard, means:
(a)alter any provision (including a reference to a substance) in the current Poisons Standard; or
(b)omit any provision (including a reference to a substance) from the current Poisons Standard; or
(c)insert any provision (including a reference to a substance) in the current Poisons Standard.
Provisions for the scheduling of substances in Poisons Standards were introduced into the TGA by s 13 of sch 1 to the Therapeutic Goods Legislation Amendment Act 1999 (Cth).
Poisons Standards are legislative instruments. However, it appears that Poisons Standards were previously treated as administrative instruments until the decision of the Federal Court of Australia in Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee.[15] In that case, Branson J held that an application for review of a decision of the Committee under the Administrative Decisions (Judicial Review) Act 1977 (Cth) was incompetent as Poisons Standards were legislative, rather than administrative, in character.[16] That decision also contains an account of the history of the legislation.[17]
[15] Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee [2007] FCA 1352; (2007) 163 FCR 451.
[16] Roche Products [41].
[17] Roche Products [10] - [25].
The decision in Roche Products led to the enactment of the Therapeutic Goods Amendment (Poisons Standard) Act 2008 (Cth), which commenced on 20 March 2008 and:[18]
(a)inserted s 52D(4A) of the TGA, which expressly provided that the Poisons Standard was a legislative instrument; and
(b)inserted s 52EA of the TGA, which validated earlier Poisons Standards that had not been registered as legislative instruments or had been tabled for disallowance.[19]
[18] See Explanatory Memorandum, Therapeutic Goods Amendment (Poisons Standard) Bill 2008 (Cth) 1 ‑ 2.
[19] Section 52EA was repealed by the Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015 (Cth).
The first Poisons Standard registered as a legislative instrument appears to be the Poisons Standard 2007 (Cth). Part 1 of that instrument set out the Standard for the Uniform Scheduling of Drugs and Poisons No 22. The Poisons Standard 2008 (Cth) set out, in Schedule 1, the Standard for the Uniform Scheduling of Drugs and Poisons No 23. In 2010, the Poisons Standard 2010 (Cth) provided for the standards to consist of the SUSMP 1 'as set out in Schedule 1'.
The Poisons Standard November 2016 (Cth) was in force at the time the MP Regulations commenced in January 2017. That Poisons Standard was made by a delegate of the Secretary to the Commonwealth Department of Health for the purposes of s 52D(2)(b) of the TGA. The preliminary part of the Poisons StandardNovember 2016 was as follows:
1.Citation
This instrument is the Poisons Standard November 2016.
2.The New Poisons Standard
The Poisons Standard November 2016 consists of the Standard for the Uniform Scheduling of Medicines and Poisons No. 15 (the SUSMP 15) as set out in Schedule 1.
3.Commencement
The Poisons Standard November 2016 commences on 1 November 2016.
Schedule 1 to the Poisons Standard November 2016 set out the SUSMP 15. 'METHYLAMFETAMINE' was listed in Schedule 8 to the SUSMP 15.
This format of Poisons Standards continued in substituted Poisons Standards up to and including the Poisons Standard October 2018 (Cth), which commenced on 1 October 2018 and set out the SUSMP 22 in Schedule 1 to that Poisons Standard.
Commonwealth legislation at date of offence charged in count 9
The format used by the Secretary's delegate changed with the commencement of the Poisons Standard February 2019 (Cth) on 1 February 2019. This Poisons Standard adopted the following format:
1.Name
This instrument is the Poisons Standard February 2019.
2.New Poisons Standard
This instrument consists of the Standard for the Uniform Scheduling of Medicines and Poisons No. 23 (the SUSMP 23).
3.Commencement
[Provides for the instrument to commence on 1 February 2019.]
4. Authority
This instrument is made under paragraph 52D(2)(b) of the Therapeutic Goods Act 1989.
5. Repeals
Each instrument that is specified in Schedule 1 to this instrument is repealed as set out in that Schedule.
Schedule 1—Repeals
Note: See section 5.
Poisons Standard October 2018
1 The whole of the instrument
Repeal the instrument
Schedule 2-Standard for the Uniform Scheduling of Medicines and Poisons No. 23[.]
The SUSMP 23 was then set out in Schedule 2 to the Poisons Standard February 2019, in the same format as previously. Schedule 8 of the SUSMP 23 listed 'METAMFETAMINE', which in the index is cross‑referenced to methylamphetamine.
The Poisons Standard in force on 16 August 2019 was the Poisons Standard June 2019 (Cth), which commenced operation on 1 June 2019. It adopted the same format as the previous Poisons Standard, with Schedule 1 repealing the Poisons Standard February 2019, and Schedule 2 containing the SUSMP 24. Schedule 8 of the SUSMP 24 listed 'METAMFETAMINE', which in the index is cross‑referenced to methylamphetamine. Subsequent Poisons Standards continued that format until it was changed again in February 2023.
Amendment of the MP Regulations in November 2019
On 20 November 2019, the MP Regulations were relevantly amended by reg 4 of the Medicines and Poisons Amendment Regulations (No 2) 2019 (WA).[20] Regulation 3 of the MP Regulations was amended as follows:
Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP) means
the document set out in Schedule 1 ofthe Standard for the Uniform Scheduling of Medicines and Poisons set out in the current Poisons Standard[.]
Validation Act
[20] Western Australia, Government Gazette, No 165 (19 November 2019) 4051.
On 1 December 2022, the Validation Act commenced operation. The operative provision of the Validation Act is s 4, which provides:
(1)In this section —
non-legislative instrument means any of the following that is made, issued or given under a written law but that is not itself a written law —
(a)a consent, licence, permit, approval or other form of authorisation;
(b)a decision, determination, direction, exemption or instruction;
(c)a code, notice, order, protocol, rule or standard;
(d)an instrument not covered by paragraphs (a) to (c);
relevant definition means the definition of Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP) in the Medicines and Poisons Regulations 2016 regulation 3(1);
validation period means the period beginning on 1 February 2019 and ending on 19 November 2019.
(2)The relevant definition is taken to have been as follows at all times during the validation period —
Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP) means the Standard for the Uniform Scheduling of Medicines and Poisons set out in the current Poisons Standard;
(3)Subsections (4), (5), (7), (8) and (9) —
(a)supplement subsection (2); but
(b)are not to be construed as limiting the effect of subsection (2) or the effect of each other.
(4)A written law or non-legislative instrument in force at any time on or after 1 February 2019 is taken to have, or to have had, the same effect at that time as if the relevant definition had been as set out in subsection (2) at all times during the validation period.
(5)Anything done, or purportedly done, on or after 1 February 2019 is taken to be, and to have always been, as lawful, valid and effective as it would be, or would have been, if the relevant definition had been as set out in subsection (2) at all times during the validation period.
(6)In subsection (5), a reference to the doing of anything includes a reference to an omission to do anything.
(7)The functions, rights, obligations and liabilities of the State, and of all persons and bodies, are taken to be, and to have always been, the same as if the relevant definition had been as set out in subsection (2) at all times during the validation period.
(8)An act or omission done or made on or after 1 February 2019 is taken to be, and to have always been —
(a)an offence, or other contravention of a written law or non-legislative instrument, if it would be, or would have been, an offence or other contravention if the relevant definition had been as set out in subsection (2) at all times during the validation period; and
(b)subject to the same punishment or other penalty or consequences, whether criminal or civil, as it would be, or would have been, if the relevant definition had been as set out in subsection (2) at all times during the validation period.
(9)An offence committed before the validation period with which a person was charged during the validation period is taken to be, and to have always been, as punishable as it would have been if the relevant definition had been as set out in subsection (2) at all times during the validation period.
(10)This section has effect despite The Criminal Code section 11.
The Validation Act came into force after the appellant was convicted and sentenced for the offence charged in count 9 of the Indictment.
The purpose of the Validation Act was relevantly explained in the following terms in the Minister's second reading speech to the Bill for the Validation Act:[21]
This bill seeks to avoid situations in which convictions for offences under the Misuse of Drugs Act may potentially be overturned due to the anomaly. Convictions for offences involving cannabis, cocaine, morphine and heroin will not be affected; however, convictions for offences involving methylamphetamine, ketamine, GHB, LSD, MDMA, fentanyl and various other drugs during the affected period may give rise to parties seeking to have their convictions overturned. The Office of the Director of Public Prosecutions has informed that approximately 350 prosecutions conducted by the ODPP involved affected convictions for offences under the Misuse of Drugs Act during the affected period. The WA Police Force advises there was a significantly higher number of charges for summary offences within that period.
It would not be for me to say how a court may view this anomaly. It could be argued that a court may interpret the anomaly to be an administrative error. However, to ensure that our legislation operates in a clear and robust manner, there is a need to retrospectively address the issue as soon as possible, particularly when considering the sheer number of convictions that are potentially affected, as well as various other statutory functions, rights, obligations and liabilities.
[21] Western Australia, Parliamentary Debates, Legislative Assembly, 29 November 2022, 6040 (Ms A Sanderson, Minister for Health).
Law in force at the time of the appellant's offending
We begin by considering whether methylamphetamine was a prohibited drug under the law in force at the time of the appellant's offending (ie, prior to the enactment of the Validation Act).
That question turns on the proper construction of the MP Regulations. That is because methylamphetamine will have been a prohibited drug for the purposes of the Drugs Act only if it was a substance classified by the Regulations as a poison included in Schedule 8. That follows from reading the following provisions noted above together:
(a)The definition of 'prohibited drug' in s 3(1) of the Drugs Act as a drug to which the Drugs Act applies by virtue of s 4(1) of that Act.
(b)The identification in s 4(1)(a) of the Drugs Act of 'drugs of addiction' as drugs to which the Drugs Act applies.
(c)The definition of 'drug of addiction' in s 3(1) of the Drugs Act to relevantly mean a 'Schedule 8 poison' as defined in the MP Act.
(d)The definition of 'Schedule 8 poison' in s 3 of the MP Act as a substance so classified by regulations made under s 4 of the MP Act (ie, the MP Regulations).
The question is then whether methylamphetamine was a 'substance listed in the SUSMP Schedule 8' within the meaning of item 7 in the table to reg 6 of the MP Regulations at the time of the offence charged in count 9. SUSMP was defined in reg 3(1) of the MP Regulations to mean 'the document set out in Schedule 1 of the current Poisons Standard'. The 'current Poisons Standard' is relevantly defined by reg 3(1) of the MP Regulations and s 52A(1) of the TGA to mean the document last prepared under s 52D(2)(b) of the TGA.
Inserting the relevant definitions into the text of item 7 of the table to reg 6 of the MP Regulations, the question is whether methylamphetamine was a substance listed in Schedule 8 of the document set out in Schedule 1 of the document last prepared under s 52D(2)(b) of the TGA.
In so providing, the MP Regulations exercised the authority, conferred by s 4(3)(a) and s 132 of the MP Act to 'adopt a code … as in force from time to time'. Without that clear statement of intention that the Governor may classify substances by reference to a document created by another person 'as in force from time to time', the validity of the MP Regulations could be open to challenge. That could be on the basis that the Regulations purported to effect an unauthorised delegation to the Secretary to the Commonwealth Department of Health of the power to classify substances under s 4 of the MP Act.[22] Section 4(3)(a) and s 132 make it clear that Parliament has authorised the Governor to make regulations having this effect.
[22] See the discussion in Pearce DC and Argument S, Delegated Legislation in Australia (6th ed, 2023) chapter 24, esp at par 24.9.
Counsel for the appellant submitted that the MP Regulations did not adopt the Poisons Standard as a code, essentially on the basis that the Regulations did not use the term 'adopt'.[23] We do not accept that submission. The term 'code' is defined by s 132(1) of the MP Act to mean a 'code, standard, rule, specification or other document'. Section 132(2) of the MP Act provides that regulations may 'adopt a code'. Whether a regulation 'adopts' a code is to be determined as a matter of substance and not merely on the basis that the regulation uses or does not use the word 'adopt'. Poisons Standards made under s 52D(2)(b) of the TGA fall within the definition of a 'code' in s 132(1) of the MP Act. Regulation 6 of the MP Regulations classified substances as poisons by reference to the document set out in Schedule 1 of the document last prepared under s 52D(2)(b) of the TGA. In so providing, the MP Regulations adopted the classifications used in that code. The document incorporated by reference was therefore adopted by regulations in a manner authorised by s 132 of the MP Act. It is immaterial that the MP Regulations did not explicitly state that the document was an 'adopted code'. The document was an 'adopted code' as defined in s 132(1) of the MP Act.
[23] Appeal ts 11 - 17.
Under s 132(3) of the MP Act, in the absence of any contrary provision in the MP Regulations, the code was adopted 'as in force from time to time'. There was no contrary provision in the MP Regulations.
At the time of the commencement of the MP Regulations on 30 January 2017, the document last prepared under s 52D(2)(b) of the TGA was the Poisons Standard November 2016. The document set out in Schedule 1 to the Poisons Standard November 2016 was the SUSMP 15. The SUSMP 15 was the 'code' which was adopted by the MP Regulations 'as in force from time to time'.
The question is therefore whether the code that was adopted was:
(a)the SUSMP 15 and documents prepared under s 52D(2)(b) in substitution for the SUSMP 15; or
(b)the SUSMP 15 and documents prepared under s 52D(2)(b) in substitution for the SUSMP 15 only if the substituted document is contained in Schedule 1 of the legislative instrument.
In our view, the former is the correct construction of the MP Regulations.
First, in answering that question, it is important to bear in mind that the State and Commonwealth provisions referred to above operate as parts of an overlapping legislative scheme and are to be construed together.[24]
[24] Clegg v The State of Western Australia [No 2] [2017] WASCA 30; (2017) 265 A Crim R 224 [7] and cases there cited.
The legislative instrument that may be prepared under s 52D(2)(b) of the TGA is:
[A] document (including schedules containing the names or descriptions of substances or classes of substances), in substitution for the current Poisons Standard.
It would be inconsistent with the legislative scheme to adopt in the MP Regulations some other kind of document simply because it happened to be Schedule 1 to the legislative instrument making the current Poisons Standard. It would also be inconsistent with the legislative scheme for the MP Regulations to fail to adopt the substance of any Poisons Standard merely because the substance of the most recent Poisons Standard was not set out in Schedule 1 to the relevant legislative instrument. The legislative scheme of both the MP Act and the Drugs Act (particularly the express provisions of the Drugs Act referring to methylamphetamine as a prohibited drug, as mentioned at [32] above) depends on the existence of an adopted Poisons Standard. Section 52D of the TGA does not contemplate that the Secretary may cancel or repeal a Poisons Standard without substituting a new Poisons Standard. The objective purpose of the MP Regulations is to adopt the substance of the Poisons Standard made under s 52D(2)(b) of the TGA; in particular, the schedules containing the names or descriptions of substances or classes of substances.
Second, the Poisons Standard is a legislative instrument that is regularly amended and substituted. The Poisons Standard was regularly amended and substituted before the MP Regulations were gazetted. There is no reason why its format could not change over time. The substantive part of the Poisons Standard is central to the operation of both the Drugs Act and the MP Act. It would be inconsistent with the purpose of the definition provisions of the MP Act, which is to adopt by reference the classification of substances in the Poisons Standard, for a format change to mean that no classifications were adopted. The literal interpretation of the MP Regulations advanced by the appellant is inconsistent with that legislative purpose and produces a result of a nature that is highly unlikely to have been objectively intended. It is well established that inconvenience and improbability of result may assist a court in preferring to the literal meaning an alternative construction which is reasonably open and more closely conforms to the overall legislative intent.[25]
[25] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408, citing Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320 - 321.
Third, the reference in the definition of SUSMP in reg 3(1) of the MP Regulations to 'the document set out in Schedule 1 of the current Poisons Standard' must be read in the context of that definition considered as a whole. What is being identified is the 'Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP)'. The defined term, bearing the title of the operative part of the Poisons Standard, is a clear identification of the document which the MP Regulations are objectively intended to adopt.
Fourth, the legislative history of the relevant provisions also counts in favour of the construction suggested above.
Immediately prior to the commencement of the MP Act, s 3(1) of the Drugs Act defined 'drug of addiction' to mean a drug of addiction as defined by s 5 of the Poisons Act 1964 (WA). Section 5 of the Poisons Act defined 'drug of addiction' to mean any substance included in Schedule 8 or Schedule 9 in Appendix A to that Act. Schedule 8 of Appendix A identified '[a]ll substances listed in Schedule 8 to the SUSMP', subject to a presently immaterial exception. Clause 1 of Appendix A to the Poisons Act defined SUSMP, as used in the Appendix, to mean the current Poisons Standard as defined in s 52A of the TGA. Section 52A defined the current Poisons Standard as the last document prepared under s 52D(2)(b).
In this manner, the schedules to the Poisons Act, the predecessor to the MP Act, referred to the Poisons Standard made under s 52D(2)(b) of the TGA. There is nothing to suggest a legislative intention to change the operation of the provisions from adopting the substantive part of the Poisons Standard.
In our view, the reference in item 7 of the table to reg 6 of the MP Regulations is to a substance listed in Schedule 8 of SUSMP 15 set out in Schedule 1 to the Poisons Standard November 2016 and to a substance listed in Schedule 8 of any amended or substituted code. That is, reg 6 identifies the substantive operative part of the Poisons Standard by reference to its location in the legislative instrument at the time the MP Regulations were made. At the time of making reg 6 of the MP Regulations, the substantive operative part of the Poisons Standard happened to be set out in Schedule 1 of the legislative instrument prepared by the Secretary. The MP Regulations adopt that code as in force from time to time. But that adoption by reg 6 of the MP Regulations of the code established under the TGA as in force from time to time did not depend on the substantive operative part of the Poisons Standard being contained in Schedule 1 of future legislative instruments which the Secretary might prepare. The code which is adopted as in force from time to time is the part of the Poisons Standard which includes schedules containing the names or descriptions of substances or classes of substances.
The SUSMP 24, set out in Schedule 2 to the Poisons Standard June 2019, was the document including Schedule 8 and other schedules containing the names or descriptions of substances or classes of substances, prepared in substitution for the previous Poisons Standards (including the SUSMP 15). Methylamphetamine was a substance listed in Schedule 8 of the SUSMP 24 at the date of the charged offence. Regulation 6 of the MP Regulations, by referring to a 'substance listed in the SUSMP Schedule 8', classified methylamphetamine as a 'Schedule 8 poison' as that term is defined in s 3 of the MP Act. As such, methylamphetamine was a 'drug of addiction' and was therefore a 'prohibited drug' for the purposes of s 6 of the Drugs Act as at the date of the offence charged in count 9.
This is not a question of implying words into or deleting words from a statute,[26] but of construing the words used in the MP Regulations in their context. In this case, there was no drafting error. The words used by the MP Regulations when they were enacted identified the SUSMP 15, which was the adopted code. The question is not one of a drafting error, but how the MP Regulations adopted a code as in force from time to time.
[26] Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531.
Therefore, the trial judge's ruling that methylamphetamine was a prohibited drug for the purposes of the Drugs Act at the date of the alleged offence was correct at the time it was made. That ruling, and her Honour's direction to the jury that methylamphetamine was a prohibited drug, did not involve a wrong decision on a question of law. The verdict of guilty of that offence was not unreasonable and did not involve the miscarriage of justice as alleged by the appellant. It follows that the appeal must be dismissed.
The Validation Act
We have concluded that the appeal must be dismissed without having regard to the operation and effect of the Validation Act. It is therefore strictly unnecessary to finally resolve whether that Act would have operated to sustain the appellant's conviction if methylamphetamine had not been a prohibited drug under the law in force on 16 August 2019. However, we now turn to consider the application of the Validation Act without finally resolving the question.
The appellant advances four reasons why the Validation Act would not apply to sustain his conviction of count 9 on the Indictment if that conviction was otherwise liable to be set aside on appeal. In our view, none of those reasons provide a proper basis for concluding that the Validation Act does not apply.
First, the appellant relies on s 35 and s 37 of the Interpretation Act 1984 (WA). In oral submissions counsel for the appellant focussed on s 35,[27] which provides:
Where a written law repeals an enactment and substitutes provisions for the enactment repealed, the repealed enactment remains in operation until the substituted provisions come into operation.
Section 37 of the Interpretation Act makes a number of provisions in relation to repeals, including that the repeal of an enactment does not affect the previous operation of the enactment repealed or anything done under that enactment.[28]
[27] Appeal ts 35 - 37.
[28] Section 37(1)(b) of the Interpretation Act.
These provisions of the Interpretation Act apply when a written law 'repeals an enactment'. Recognising that the question of whether an enactment has been repealed is one of substance rather than form,[29] there may be a question as to whether the Validation Act effects any repeal for these purposes. Even assuming there to be a repeal, s 35 and s 37 operate subject to any contrary intention expressed in the enactment being construed.[30] If the 'repealed enactment' in this case is the former definition of SUSMP in the MP Regulations (being the definition of SUSMP as at 16 August 2019), then the express provisions of s 4 of the Validation Act are inconsistent with that repealed definition continuing until 1 December 2022 when the Validation Act came into operation. Section 35 of the Interpretation Act is excluded by necessary intendment. In providing for the new definition to be taken to have operated from 1 February 2019 to 19 November 2019, s 4(2) is plainly intended to affect the operation of the repealed definition prior to the Validation Act coming into force.
[29] Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 [9], [35] - [39], [83].
[30] Section 3(1)(a) and s 3(1)(b) and the chapeau to s 37 of the Interpretation Act.
Second, the appellant relies on s 11 of the Criminal Code (WA), which provides:
A person cannot be punished for doing or omitting to do an act, unless the act or omission constituted an offence under the law in force when it occurred, nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.
However, s 4(10) of the Validation Act provides that s 4 of that Act operates despite s 11 of the Criminal Code. Section 4(8) of the Validation Act relevantly provides that an act done after 1 February 2019 is taken to be, and to always have been, an offence if it would have been an offence if the relevant definition had been as set out in s 4(2) at all times during the validation period. Section 4(9) provides for the case of a person charged during the validation period with an offence committed before the validation period. These provisions evince a clear intention to override s 11 of the Criminal Code.
Third, the appellant relies on s 12 of the Criminal Code. In our view, this provision, which deals with the territorial application of criminal law, does not have any relevant operation in the present case.
Fourth, while the appellant does not challenge the validity of the Validation Act,[31] he in effect contends that the Act must be construed consistently with the inability of State parliaments to deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that court.[32] The appellant contends that the Validation Act cannot be construed as immunising the trial judge's decision that methylamphetamine was a prohibited drug as at 16 August 2019, which is said to be affected by jurisdictional error, against judicial review.
[31] Appeal ts 48 - 49.
[32] Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 [99] - [100].
As the existence of this appeal demonstrates, the trial judge's decision is not immunised from judicial review of its correctness. Nothing in the Validation Act alters the fact that the appellant's conviction remains subject to an appeal including on the ground that the trial judge made a wrong decision on a question of law. Nor if (which may be doubted) the judge's decision were amenable to some other kind of judicial review for jurisdictional error, and involved jurisdictional error, would the Validation Act prevent the exercise of the right to seek that judicial review. The application of the Validation Act to sustain the appellant's conviction would not take from this court any power to grant relief on account of jurisdictional error.
However, the rejection of these four objections raised by the appellant does not necessarily lead to the conclusion that the Validation Act would apply to sustain a judgment of conviction entered prior to the enactment of that Act for an offence committed during the validation period. While the Validation Act clearly has a retroactive operation, recognising that to be so does not necessarily require the conclusion that it applies where an accused's criminal liability has been determined by a judgment of conviction or acquittal. As the High Court recognised in Stephens v The Queen:[33]
The presumption against retroactive operation of a statute does not apply in an all-or-nothing manner. A statute is not to be construed as retroactive 'to any greater extent than the clearly expressed intention of the Legislature indicates'. (citation omitted).
[33] Stephens v The Queen [2022] HCA 31; (2022) 96 ALJR 871 [35]. To similar effect see the statement of general principle by Kennedy J in MacCarron v Coles Supermarkets Australia Pty Ltd [2001] WASCA 61; (2001) 23 WAR 355 [12].
In Lodhi v The Queen,[34] Spigelman CJ recognised the need for unequivocal language to be used before Parliament will be held to have intended to retrospectively alter a criminal offence where a trial has commenced. This approach was applied by the High Court in Stephens in construing a provision that created retroactive criminal liability as inapplicable where a trial had commenced.[35]
[34] Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303 [48] - [50].
[35] Stephens [35] - [45].
Senior counsel for the State resists a similar conclusion in the case of the Validation Act by referring to s 4(9) of that Act.[36] This provision operates to exclude the second limb of the defence provided for by s 11 of the Criminal Code. But for the Validation Act, a person who was, during the validation period, charged with a drug offence allegedly committed prior to the commencement of the validation period would have a defence under the second limb. That defence would be available on the basis that, although the charged act was an offence when it was committed, the charged act would not constitute an offence under the law in force at the time the person was charged with the offence.
[36] Appeal ts 50 ‑ 52.
Section 4(9) of the Validation Act indicates a clear intention that the Act applies where an accused person has been charged with a relevant offence during the validation period. However, the limitation identified in Stephens and Lodhi concerned when a trial had commenced rather than when a person had been charged.
Further, even assuming that the Validation Act applied once a trial had been commenced, it would require a further step to conclude that the Validation Act applied to deprive a person of a judgment of acquittal rightly given or a wrongly convicted person of the right to have their conviction set aside.[37] In that regard, it may be significant that s 4 of the Validation Act addresses the law that is to be taken to be in force at a relevant time rather than a judgment following a trial. As Dixon J noted in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan[38] (a case where the appellants were convicted of offences under regulations which were subsequently disallowed and thereupon ceased to have effect):
[A]fter a regulation has been disallowed, no one is liable to conviction for an offence committed while it was in force. His liability ceases when the law is revoked that imposed it. But if he has already been convicted, then because his liability has merged in the conviction, it no longer depends upon the law under which it arose, and it does not lapse with the revocation of the law. The conviction has become the source of his liability for his offence, and the conviction continues in force because its operation does not depend upon the law creating the offence, but upon the authority belonging to a judgment or sentence of a competent Court.
[37] Stephens [41].
[38] Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, 106.
It may also be noted that the Minister's second reading speech to the Bill for the Validation Act, quoted at [64] above, clearly contemplated that the Act would operate to sustain convictions. However, that is not necessarily a decisive answer to the question as, arguably, the principle of legality contemplates that the relevant 'irresistible clearness'[39] will emerge from the statutory text rather than the Minister's speech to Parliament.[40]
[39] See, for example, Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [14] - [15].
[40] Re Bolton; Ex parte Beane (1987) 162 CLR 514, 517 - 518.
The above considerations leave us with reservations as to whether the Validation Act applies to deprive an accused of the benefit of a judgment of acquittal given prior to the commencement of the Validation Act or the right to have a wrongful judgment of conviction entered prior to the commencement of the Validation Act set aside. However, counsel for the appellant eschewed any argument that the operation of the Validation Act was so limited.[41] Given the way the present case has been argued and in circumstances where it is unnecessary to decide the point in order to dismiss the appeal, we consider it preferable not to attempt to finally resolve the question in these reasons.
[41] Appeal ts 39 - 45.
Orders
For the above reasons, we would make the following orders in this appeal:
1.The appellant's application for an extension of time in which to appeal is granted.
2.Leave to appeal on the sole ground of appeal is granted.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
23 MAY 2023
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