Taylor v The Queen
[2020] VSCA 50
•17 March 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0285
| ROBIN JAMES TAYLOR | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | PRIEST, HARGRAVE and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 February 2020 |
| DATE OF JUDGMENT: | 17 March 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 50 |
| JUDGMENT APPEALED FROM: | DPP v Taylor (Unreported, County Court of Victoria, Judge Patrick, 9 April 2018) |
---
CRIMINAL LAW – Appeal – Conviction – Applicant convicted of trafficking a ‘drug of dependence’ contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’) – Indictment charged applicant with trafficking ‘anabolic and androgenic steroidal agents’ – Applicant alleged to be in business of trafficking in accordance with Giretti v The Queen (1986) 24 A Crim R 112 – Multiple anabolic and androgenic steroidal agents referred to in charge – Whether offence as charged known to law – Whether charge bad for duplicity – Whether verdict uncertain – Definition of ‘drug of dependence’ in s 4 of Drugs Act considered – Anabolic and androgenic steroidal agents not a ‘drug of dependence’ within (c)(ii) definition in s 4 – Section 37 of Interpretation of Legislation Act 1984 considered – Charge not duplicitous – Verdict not uncertain – Leave to appeal granted in respect of challenge to charge as formulated – Not known to law – Appeal allowed – Conviction quashed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis QC with Mr S J Tovey | Fayman Lawyers |
| For the Crown | Mr R L Gibson QC with Mr T Bourbon | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
HARGRAVE JA
WEINBERG JA:
On 1 December 2017, following a trial in the County Court at Melbourne, the applicant, Robin James Taylor, was convicted of the offences set out in the table below.
On 9 April 2018, the applicant was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
1.
Traffick drug of dependence [s 71AC — Drugs Poisons and Controlled Substances Act 1981]
15 years
7 years’ imprisonment
2.
Importation of Tier 1 Goods [s 233BAA(4) — Customs Act 1901 (Cth)]
5 years
2 years’ imprisonment (part of an aggregate sentence)
3.
Importation of Tier 1 Goods [s 233BAA(4) — Customs Act 1901 (Cth)]
5 years
2 years’ imprisonment (part of an aggregate sentence)
4.
Importation of Tier 1 Goods [s 233BAA(4) — Customs Act 1901 (Cth)]
5 years
2 years imprisonment (part of an aggregate sentence)
5.
Importation of Tier 1 Goods [s 233BAA(4) — Customs Act 1901 (Cth)]
5 years
2 years imprisonment (part of an aggregate sentence)
6.
Importation of Tier 1 Goods [s 233BAA(4) — Customs Act 1901 (Cth)]
5 years
2 years imprisonment (part of an aggregate sentence)
7.
Importation of Tier 1 Goods [s 233BAA(4) — Customs Act 1901 (Cth)]
5 years
2 years imprisonment (part of an aggregate sentence
8.
Importation of Tier 1 Goods [s 233BAA(4) — Customs Act 1901 (Cth)]
5 years
2 years imprisonment (part of an aggregate sentence)
9.
Importation of Tier 1 Goods [s 233BAA(4) — Customs Act 1901 (Cth)]
5 years
2 years imprisonment (part of an aggregate sentence)
Total effective sentence: 7 years imprisonment Non-parole period: 4 years and 6 months’ imprisonment Pre-sentence detention declared: 129 days Other relevant orders: Non-publication order; Forfeiture orders.
With regard to the Commonwealth offences (charges 2–9), the judge ordered that the applicant be released on a recognisance of $1,500 after 12 months of that aggregate sentence had been served.
The applicant has applied for leave to appeal against both his conviction and sentence. For reasons that follow, we would grant leave to appeal against conviction, and treat the appeal as having been heard instanter. We order that the appeal be allowed and that the applicant’s conviction and sentence on charge 1 be set aside.
Circumstances surrounding the commission of the offences
The applicant ran the ‘Melbourne Sports Medicine and Anti‑Aging’ clinic (‘the clinic’), a business that was located in Moonee Ponds. The clinic sold a variety of products to its clients, including performance enhancing substances. It was established to cater to clients such as bodybuilders and athletes. The applicant and his wife (and co‑offender), Georgina Matta, were the joint proprietors.
The only qualified doctor associated with the clinic was Dr Hoong Sze-Tho, a general practitioner (and co‑offender). He would attend the clinic one day a week. He was paid a sum of $50 for each client for whom he wrote a prescription. He would not always see those clients. Often, he would only discuss their histories and test results with the applicant before filling out the prescriptions. Over the course of the charge period (1 May 2012 to 8 October 2013), he was paid a total of $15,500, which equated to about 310 clients.
Amy Gorgievski was the clinic receptionist. She too was a co‑offender. She would send the prescriptions written out by Dr Sze-Tho to various pharmacies. She would subsequently collect the medications prescribed, or have them delivered to the clinic.
In 2013, the applicant was awarded a phlebotomy certification from the Western Australian School of Pathology. That certification authorised him to draw blood intravenously. He had no other qualifications, and certainly no medical training.
The prosecution case was that during the charge period, the applicant sold substantial quantities of anabolic and androgenic steroidal agents[1] (charge 1 — trafficking a drug of dependence). These substances were specifically alleged, in charge 1 of the indictment, to include anabolic and androgenic steroidal agents in the form of testosterone,[2] methenolone,[3] methandienone,[4] prasterone,[5] stanozolol,[6] trenbolone,[7] and nandrolone.[8]
[1]These are hormonal agents that can build muscle and improve athletic performance. However, they can also have significant adverse effects, especially when used incorrectly.
[2]A male sex hormone which promotes, inter alia, increased muscle mass and bone mass.
[3]A steroid which is used to prevent the loss of muscle mass, and to promote natural bone density.
[4]A steroid that was formerly used for physique and performance enhancing purposes. It is no longer in current use.
[5]A prohormone which increases testosterone levels and reduces fat levels in the body.
[6]Another steroid that was formerly used for physique and performance enhancing purposes. It is no longer in current use.
[7]A steroid that was formerly used to increase muscle growth and appetite. It is also no longer in current use in humans, but remains in use in veterinary medicine.
[8]A steroid which is used to improve physique and performance.
During the charge period, clients would attend the clinic, many citing physiological complaints of various kinds. At an initial appointment, the usual practice was for the client to fill out a patient history form. They would then be met by the applicant, who would show them into a consulting suite. He would take a blood sample. The clients were told to come back in about a week for the results.
At a subsequent appointment, the applicant would advise a treatment program based on the results of the blood test. This would usually involve the applicant or his staff providing the client with syringes and vials of various substances. The client would then pay the bill and receive a tax invoice.
During these consultations, a number of clients never saw a doctor. Nor did they ever see any of the prescriptions for the medications that were to be administered. At times, a prescription would be written for one client, with the medication ultimately ‘dispensed’ to another. When, eventually, a search warrant was executed at the clinic, 43 undispensed prescriptions written by Dr Sze-Tho were located.
The prosecution alleged that the clinic found itself unable to generate a profit from legally sourced drugs. To overcome this difficulty, the applicant imported drugs from various illegitimate sources. He also sourced some of these drugs through the false prescriptions written by Dr Sze-Tho. The drugs were then sold to the clinic’s clients.
Often, the medication would be repackaged and labelled with the logo of ‘Boehringer Ingelheim’, a legitimate pharmaceutical company based in Germany. In order to carry out this particular deception, the applicant obtained equipment (including drug vials, stickers denoting the contents of the vials, capsules, decanting equipment, and agents for mixing and presenting the drugs for sale). At trial, the Supply Chain Manager of the Australian subsidiary of Boehringer Ingelheim gave evidence that the company did not produce such drugs for sale in Australia.
In relation to the Commonwealth offences (which are not the subject of this application), it was alleged that on a number of occasions during the charge period, the applicant recklessly, and without a license or permission, imported Tier 1 goods, specifically anabolic and androgenic steroidal agents (including testosterone, nandrolone, methenolone, and methandienone), as well as ‘Growth Hormone Releasing Peptide—6’, from the Unites States and China. It was also alleged that these substances were repackaged and sold to clients of the clinic.
Proposed grounds of appeal
In relation to the application for leave to appeal against conviction, there are two proposed grounds of appeal. They are as follows:
1.The Applicant’s trial on Charge 1 occasioned a substantial miscarriage of justice. In particular, Charge 1 was defective in that:
a.it pleaded on indictment an offence not known to the law; and
b.it was duplicitous.
2.The Applicant’s trial on Charge 1 miscarried as a result of its having proceeded in a manner that led to a guilty verdict from the jury that is bad for uncertainty.
In relation to the application for leave to appeal against sentence, there is but one proposed ground of appeal. It alleges manifest excess in relation to the sentence of 7 years’ imprisonment imposed on charge 1. It also challenges the non-parole period of 4 years and 6 months.
The trial
The applicant’s trial proceeded on indictment C1510327.AB. Charge 1 read as follows:
CHARGE 1:The Director of Public Prosecutions charges that ROBIN JAMES TAYLOR at Moonee Ponds in Victoria between the 1st day of May 2012 and the 8th day of October 2013 trafficked in a drug of dependence namely Anabolic and Androgenic Steroidal Agents, including Anabolic and Steroidal Agents in the form of Testosterone, Methenolone, Methandienone, Prasterone, Stanozolol, Trenbolone, and Nandrolone.[9]
[9]Our emphasis.
Statement of Offence:
Trafficking a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Section 4 of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’) relevantly defines a ‘drug of dependence’ to mean a substance that is:
(c) a drug—
(i)specified in column 1 of Part 3 of Schedule Eleven; or
(ii)included in a class of drugs specified in column 1 of Part 3 of Schedule Eleven—[10]
[10]Our emphasis.
Soon after the trial commenced, the prosecutor indicated that he sought to invoke the definition of a drug of dependence outlined above. He submitted that the expression ‘anabolic and androgenic steroidal agents’, as set out in charge 1, denoted either a ‘drug of dependence’ specified in column 1 of Part 3 of Schedule Eleven or, alternatively, that it denoted a drug included in a class of drug specified in Column 1 of Part 3 of that same schedule.[11]
[11]Our emphasis.
The reference to steroidal agents in Part 3 of Schedule Eleven was introduced by the Drugs, Poisons and Controlled Substances (Drugs of Dependence) Regulations 1999 (‘the Regulations’). Column 1 of Part 3 of Schedule Eleven includes a large number of drugs of dependence. These cover individual drugs, as well as classes of drugs, such as amphetamines, synthetic cannabinoids, and of course, anabolic and androgenic steroidal agents.
With regard to the class of drugs presently in issue, the following table sets out the applicable items from Part 3 of Schedule Eleven:
Column 1
Column 2 (Commercial Quantity)
Column 2A (Commercial Quantity)
Column 2B (Automatic Forfeiture Quantity)
Column 3 (Traffickable Quantity)
Column 4 (Small Quantity)
Drug
Quantity
Quantity of mixture of substance and drug of dependence
Quantity
Quantity of mixture of substance and drug of dependence
Quantity
ANABOLIC AND ANDROGENIC STEROIDAL AGENTS, other than in implant preparations for use in animals.
5.0 kg
5.0 kg
300.0 g
500.0 g
50.0 g
METHANDIENONE
5.0 kg
5.0 kg
300.0 g
500.0 g
50.0 g
METHENOLONE
5.0 kg
5.0 kg
300.0 g
500.0 g
50.0 g
NANDROLONE
5.0 kg
5.0 kg
300.0 g
500.0 g
50.0 g
PRASTERONE
5.0 kg
5.0 kg
300.0 g
500.0 g
50.0 g
STANOZOLOL
5.0 kg
5.0 kg
300.0 g
500.0 g
50.0 g
TESTOSTERONE, other than in implant preparations for use in animals.
5.0 kg
5.0 kg
300.0 g
500.0 g
50.0 g
TRENBOLONE, other than in implant preparations for use in animals.
5.0 kg
5.0 kg
300.0 g
500.0 g
50.0 g
As seen above, column 1 includes ‘ANABOLIC AND ANDROGENIC STEROIDAL AGENTS, other than in implant preparations for use in animals.’ However, it also lists methandienone, methenolone, nandrolone, prasterone, stanozolol, testosterone, and trenbolone as individual drugs of dependence.
The prosecution proceeded on the basis that those last seven mentioned drugs were all ‘individual forms of anabolic and androgenic steroidal agents’. It then sought to prove ‘that each of [those] individual steroidal agents [fell] in the class of drug that [were] included in the reference to anabolic and androgenic steroidal agents.’[12]
[12]Our emphasis.
During pre-trial discussions, the prosecutor summarised the Director’s case for the trial judge. He then took her Honour through the various provisions of the Drugs Act, and in particular, through the relevant definitions in s 4 and Schedule Eleven. The transcript records the following exchange:
[PROSECUTOR]: In my submission, if [the expert witness] gave evidence that each of these drugs are a form or, as in the indictment, they are anabolic and steroidal agents in various forms, then Your Honour, in my submission, would be entitled to direct the jury as a matter of law that anabolic and androgenic agents are in a schedule as drugs dependence …
HER HONOUR: I don’t understand quite why that would need to be done, in other words, anabolic and androgenic steroidal agents has columns of amounts, so as long as the jury is satisfied that whatever it is an anabolic and androgenic steroidal agent, then that covers the situation without it having to be one of the following things underneath, even though some of them may have been - - - -
[PROSECUTOR]: Yes, Your Honour
HER HONOUR: Some of these substances that are specifically listed.
[PROSECUTOR]: Yes, that is my submission.[13]
[13]Our emphasis.
Shortly afterwards, the prosecutor said:
In my submission, the particulars have been provided, for the reason that I indicated before, and that is to allow my learned friend … to know what list of forms of steroidal agents that the prosecution rely on to prove the charge …
But in my submission, if the jury — if there’s 12 jurors, they would need to be unanimous that the substance that was regularly dealt with … was an anabolic and androgenic steroidal agent. So, put at a very basic level, in my submission, if six on the jury were satisfied that there was evidence that Mr Taylor had sold testosterone on a regular basis, and six of the jury found that Mr Taylor had sold Nandrolone, another anabolic and androgenic steroidal agent, that would still be sufficient to finding guilty of that charge.
So they don’t have to be unanimous on each particular drug. In my submission, they wouldn’t need to be satisfied that he sold each and every one of those drugs, and indeed, as I say, it could get to a verdict where they’d be entitled to bring in a verdict of guilty even if six said, ‘I’m satisfied that it was testosterone,’ and six said, ‘I’m satisfied that it was another drug’ — Nandrolone, for example, or another form of anabolic or androgenic steroid.[14]
[14]Our emphasis.
In the course of directing the jury, the judge instructed them that they must ask themselves three questions.
1.Were they satisfied beyond reasonable doubt that during the charged period the applicant intentionally sold anabolic and androgenic steroidal agents to persons other than for whom substances had been prescribed?
2.Were they, if they decided the first question against the applicant, satisfied on the balance of probabilities that the applicant was authorised to sell anabolic and androgenic steroidal agents?
3.Were they, if they decided the first two questions against the applicant, satisfied beyond reasonable doubt that the applicant performed the acts the subject of question 1 in the course of intentionally conducting the business of selling anabolic and androgenic agents?
It should be noted that at no stage during the course of the trial did counsel for the applicant raise with the judge any of the matters that are now said to give rise to the two proposed grounds of appeal against conviction. As will be seen, counsel appearing on behalf of the applicant before this Court submitted that this was not to the point. If any of the grounds were otherwise made good, the conviction on charge 1 would have to be set aside.
Applicant’s submissions
Ground 1.a — offence not known to the law
Mr Kassimatis QC, appearing on behalf of the applicant (but who was not trial counsel), drew attention to s 71AC of the Drugs Act, which formed the basis of the conviction on charge 1. That section reads as follows:
Trafficking in a drug of dependence
A person who, without being authorized by or licensed under this Act or the regulations to do so, trafficks or attempts to traffick in a drug of dependence is guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum).
It was submitted that the only way that the offence designated in charge 1 could constitute an offence under that section of the Drugs Act was pursuant to the relevant definition of a ‘drug of dependence’, as contained in s 4. There were two limbs of that definition that were potentially applicable. Under sub-para (c)(i), the substance said to be a drug of dependence had to be a drug specified in column 1 of Part 3 of Schedule Eleven. Alternatively, under sub-para (c)(ii), the substance had to be a drug included in a class of drug specified in column 1.
It was submitted that, self-evidently, despite the reference in column 1 to ‘anabolic and androgenic steroidal agents’ being a ‘drug of dependence’, pursuant to sub-para (c)(i), this could not sensibly be so. The descriptor used was not of a ‘drug’, but of a ‘class of drugs’. There was no other sensible interpretation that could be given to the composite expression ‘steroidal agents’. In this case, s 37 of the Interpretation of Legislation Act 1984,[15] which provides that unless the contrary intention appears, words in the singular include the plural and vice versa could not be invoked to salvage the validity of the charge.
[15](‘Interpretation of Legislation Act’).
Nor could the definition in sub-para (c)(ii) avail the prosecution. Once it is accepted that steroidal agents are within the ordinary meaning of a ‘class of drugs’, the descriptor ‘anabolic and androgenic steroidal agents’, as set out in charge 1, cannot be ‘included in’ a class of drug specified in column 1. That is because the relevant descriptor is itself a class of drug so specified.
It was further submitted that the fact that the particular class of drug specified, ‘anabolic and androgenic steroidal agents’, may be given the label of a ‘small’, ‘traffickable’ or ‘commercial’ quantity, in accordance with columns 4, 3, and 2, could not have the effect of rendering this class of drug a drug of dependence.
In his written case, Mr Kassimatis made the following submission:
In fact, were the construction of the Act advanced by the Respondent sound — and a reference to a ‘class of drug’ was necessarily also a reference to a ‘drug of dependence’ — [sub-para (c)(ii) of the definition of ‘a drug of dependence’] would be rendered altogether otiose.
Mr Kassimatis submitted that where Parliament has intended that a ‘class of drugs’ be treated as a ‘drug of dependence’, it must manifest that intention plainly and unequivocally. Where it has not done so, a Court should be slow to read that same intention into the text of the Act and the Regulations. In other words, unless the Drugs Act and the Regulations contain a clearly and expressly stated intention on the part of Parliament to treat ‘a class of drugs’ as, itself, a ‘drug of dependence’, there is no warrant for the Court to interpret the text in order to bring about that result.[16]
[16]See, later, [76] of these reasons, and the reference to Regulation 1(a) of the Regulations, which does not constitute such a ‘clearly and expressly stated intention’.
Therefore, it was submitted that, as a matter of law, there could be no offence of trafficking in ‘anabolic and androgenic steroidal agents’ under s 71AC of the Drugs Act.
Ground 1.b — duplicity
Mr Kassimatis submitted, in the alternative, that charge 1 was plainly duplicitous. An individual charge in an indictment should not allege that the accused committed two or more offences, at least where the matter is to go to trial. In this instance, that was precisely what was said to have occurred. It was submitted that the trafficking of each of the individual anabolic and androgenic steroidal agents particularised were themselves offences contained within a single charge.
It was submitted that each individual substance said to have been trafficked by the applicant ought to have been the subject of a separate charge.
Overall, Mr Kassimatis submitted that if charge 1 disclosed no offence known to the law, self-evidently, the conviction on that charge would have to be quashed. The same result would follow from any finding that the charge was duplicitous. In relation to duplicity, a charge such as that in the present case was said to ‘involve such a departure from the essential requirements of law that [it] may be said properly to go to the root of the trial.’[17] Mr Kassimatis submitted that in either case, there had been a substantial miscarriage of justice. It was irrelevant that defence counsel at trial appeared to have acquiesced in the course adopted by the prosecutor.
[17]In that regard, Mr Kassimatis referred in his written case to R v Hamzy (1994) 74 A Crim R 341, 344 (Hunt CL at CL, Abadee agreeing at 352, Simpson J agreeing at 352); and R v Ayres [1984] AC 447, 460–1.
Ground 2 — uncertainty
Mr Kassimatis submitted, with reference to the exchanges set out in [25]–[26] of these reasons, that the course adopted by the prosecutor before the jury had resulted in an uncertain or ambiguous verdict.
Mr Kassimatis noted that none of the three questions outlined in [27] required the jury to be satisfied beyond reasonable doubt that the applicant had trafficked in, or engaged in the business of trafficking in, a drug of dependence. Rather, those questions were said to have expressly invited the jury to arrive at a verdict on charge 1 merely if they were satisfied that the applicant had trafficked in a category or class of drug.
Mr Kassimatis further submitted that the absence of a unanimity direction in relation to each individual drug, particularised in charge 1, rendered it a ‘virtual certainty’ that some jurors had been satisfied that the applicant had trafficked in one particular drug, while others may have been satisfied that he had trafficked in different or other drugs.
Mr Kassimatis again submitted that it was not to the point that defence counsel at trial had acquiesced in that course. As a result, he submitted that the verdict on charge 1 had an uncertain evidentiary basis. This too was said to have resulted in a ‘fundamental defect in the trial process, necessarily resulting in a substantial miscarriage of justice.’
Respondent’s submissions
Ground 1.a — offence not known to the law
In the respondent’s written case, it was noted that the applicant had been charged with alternative offences of possession of a drug of dependence relating to the same substances as were particularised in charge 1. Accordingly, charges 11 and 15 related to methandienone, charge 12 to nandrolone, charges 13 and 16 to testosterone, charge 14 to prasterone, charge 17 to stanzolol, and charge 18 to methenolone.
The written case then referred to the definition of a ‘drug of dependence’ in s 4 of the Drugs Act, and to the expression ‘anabolic and androgenic steroidal agents’ in column 1 of Part 3 of Schedule Eleven of the Act. It noted that the relevant schedule also expressly listed these individual substances as drugs of dependence in column 1.
The written case then proceeded as follows:
The prosecutor discussed the framing of the indictment with the trial judge. He stated that all the substances listed as particulars fell under the umbrella of ‘anabolic and androgenic steroidal agents’ and that either paragraph (c)(i) or (c)(ii) of the definition of ‘drug of dependence’ in the Act was engaged. Strictly speaking, the framing of charge 1 appears only to engage paragraph (c)(ii) as it refers to a class of drug. The term ‘Anabolic and Androgenic Steroidal Agents’ is simply a class of drug. As the prosecutor stated:
The prosecution rely on the evidence of a number of witnesses and I will take you to that very briefly in a moment to prove that each of these individual steroidal agents fall in that class of drugs that are included in the reference to anabolic and androgenic steroidal agents, and that is why — Your Honour may have an earlier version of the indictment that had the charge just simply alleging that the trafficking — the drug of dependence trafficked was anabolic and androgenic steroidal agents without any further particulars or reference being provided.
…
The factual basis for that claim in relation to this charge is the evidence of the chemist … [S]he analysed the drugs that were seized during the searches that were carried out and provides an opinion as to what each particular drug was … [S]he then notes and lists them all, and I won’t read them all out, but essentially the drugs that are listed in Charge 1 of the indictment, so Methandienone, et cetera, and their derivatives are each anabolic and/or androgenic steroidal agents: ‘Anabolic and androgenic steroidal agents in this form are listed as a drug in column 1 of part 3 of schedule 11 to the Drugs, Poisons and Controlled Substances Act.’ So that is her evidence concerning that list of drugs, which is the same list that is contained in Charge 1 as particulars.
The respondent notes that there was no dispute at trial that each of the particularised substances fell within the class of ‘Anabolic and Androgenic Steroidal Agents’. The following exchange occurred between the parties:
[PROSECUTOR]: Then we get to the point that my learned friend raised earlier: how does the Crown prove that anabolic and androgenic steroidal agents are a drug of dependence under schedule 11 of the Drugs Act? Generally, that is not a matter that is taken issue with. If there’s a trial involving methylamphetamine as the drug, the jury never have to consider whether it’s included in the schedule or not, and I’m not quite sure if I understand my learned friend’s position on that. In my submission, if [the expert witness] gave evidence that each of these drugs are a form or, as in the indictment, they are anabolic and steroidal agents in various forms, then Your Honour, in my submission, would be entitled to direct the jury as a matter of law that anabolic and androgenic steroidal agents are in a schedule as drugs of dependence, if that makes — I don’t know if I am making that clear, but that seems to be one issue that my learned friend raised, and I think his suggestion was that the schedule could be tendered as an exhibit to prove that. That does seem to me to be one way to overcome the issues.
HER HONOUR: I don’t understand quite why that would need to be done, in other words, anabolic and androgenic steroidal agents has columns of amounts, so as long as the jury is satisfied that whatever it is is an anabolic and androgenic steroidal agent, then that covers the situation without it having to be one of the following things underneath, even though some of them may have been---
[PROSECUTOR]: Yes, Your Honour.
HER HONOUR: Some of these substances that are specifically listed.
[PROSECUTOR]: Yes, that is my submission.
HER HONOUR: But I don’t know — anyway, we’ll find out what [defence counsel] is saying, but it’s really going to be a matter of there being evidence---
[DEFENCE COUNSEL]: Maybe I can help you, Your Honour.
HER HONOUR: Yes.
[DEFENCE COUNSEL]: I don’t disagree with anything that has fallen from my learned friend in terms of the law so far.
It was submitted that what emerged from this discussion refuted the applicant’s first contention that there was no offence of trafficking in ‘anabolic or androgenic steroidal agents’. It was said to be significant that the Drugs Act prescribed ‘small’ quantities, ‘traffickable’ quantities, and ‘commercial’ quantities for this very class of drug. Plainly, the written case proceeded on the basis that the relevant expression of the drug that was said to have been trafficked fell within the definition of ‘drug of dependence’ pursuant to sub-para (c)(ii), and not sub‑para (c)(i). Yet, it was submitted that if the Drugs Act intended that there could be no offence of trafficking in anabolic and androgenic steroidal agents per se, what would be the point of prescribing such quantities? Rather, the Act would simply list the relevant quantities under the various individual substances that made up those steroidal agents as a class.
Ground 1.b — duplicity
The respondent’s written case rejected the applicant’s contention that charge 1 was duplicitous. The Act itself provided the statutory warrant for a class of drug known as anabolic and androgenic steroidal agents to be treated as a drug of dependence, and to be the subject of a Giretti[18] form of trafficking.
[18]See, generally, Giretti v The Queen (1986) 24 A Crim R 112 (‘Giretti’).
Giretti trafficking was said to be a recognised exception to the rule against duplicity. That exception reflects the absurdity of charging an accused person with numerous offences of trafficking in circumstances where that person is found in possession of a large number of different types of individual drugs. It was submitted that there was no unfairness to an accused in framing a case in accordance with charge 1, as a charge in that form avoided an overloaded indictment.
Finally, the written case noted that the references to individual drugs in charge 1 were provided as particulars to substances (anabolic and androgenic steroidal agents) that themselves constituted drugs of dependence. These particulars were provided in response to a defence request, enabling them to be satisfied that the substances in question were all capable of falling within the requisite class as pleaded.
Ground 2 — uncertainty
The respondent’s written case dealt with this proposed ground in the following way. It noted that the prosecutor stated the matters set out above, at [26], in submissions to the judge, in the absence of the jury.
The respondent submitted that the question of unanimity, as regards any particular individual substance, did not feature as a live issue in the trial. The only defence raised on behalf of the applicant had been whether he was authorised or licensed to deal with the substances in question in the way that he had, or whether he honestly and reasonably believed that he was entitled to do what he had done. It was never in issue as to whether the substances that he had admittedly sold were, in fact, anabolic and androgenic steroidal agents. Thus, the jury were never asked to determine whether a particular substance constituted a requisite drug of dependence for the purposes of charge 1.
It was next submitted that the applicant’s contentions in support of this ground should be rejected because they confused the elements of a charge with particulars. It was only the elements of a charge that required unanimity and certainty, not the particulars supporting that charge.
Once again, the respondent called in aid the fact that charge 1 was a Giretti charge of trafficking drugs. Self-evidently, that did not require unanimity in relation to each act of alleged trafficking, or any single act of trafficking as part of the overall business in which the applicant was said to have been involved.
Respondent’s case in oral submissions before this Court
Mr Gibson QC, who appeared on behalf of the respondent before this Court, put the respondent’s submissions somewhat differently, in certain respects, from the way in which they were expressed in the written case.
It was submitted that charge 1 represented a practical and common sense approach to the drafting of the indictment. In particular, the reference to anabolic and androgenic steroidal agents as the drug that was trafficked represented an invocation of sub-para (c)(ii) of the definition of a ‘drug of a dependence’ under s 4 of the Drugs Act, that descriptor being a drug included in a class of drug specified in column 1 of Part 3 of Schedule Eleven.
It was submitted that the charge, as framed, alleged that the applicant had trafficked in a drug of dependence, being an anabolic and androgenic steroidal agent.[19] It was clear that the individual drugs listed as particulars in the charge were all steroids or steroidal agents. Indeed, they were all anabolic steroids. This was not a charge, put on a Giretti basis, of trafficking in different drugs, for example, heroin, cannabis, or amphetamines. It was a charge of trafficking in a single substance which, pursuant to sub-para (c)(ii), was anabolic steroids.
[19]The shift from the plural ‘agents’ to the singular ‘agent’ in counsel’s oral submission was noteworthy.
Mr Gibson noted that the individual drugs named in charge 1 had been provided as particulars, but could have been listed in a separate document. The indictment would have been perfectly valid had it simply spoken of trafficking in an anabolic and androgenic steroidal agent, that being ‘a drug included in a class of drugs specified in column 1 of Part 3 of Schedule Eleven’.
Mr Gibson then replicated the submission advanced in the respondent’s written case that it was sub-para (c)(ii) alone that rendered the charge one of trafficking in a drug of dependence. He submitted that it was of no consequence that the Drugs Act itself spoke of ‘a drug’, rather than ‘drugs’, as the introduction to the expression ‘anabolic and androgenic steroidal agents’ in column 1 of Part 3 of Schedule Eleven.
The next matter raised in oral argument was that defence counsel at trial had accepted that this was a simple, one issue case, turning upon whether the applicant had been authorised to sell and supply these substances to his various clients. Mr Gibson submitted that s 4 of the Drugs Act enabled the prosecution to charge a drug as a class of drugs. All of the individual drugs particularised were members of that class. They were all steroidal agents.
When challenged by the Court as to whether the prosecution maintained its submission that sub-para (c)(ii) alone was the relevant part of the definition in s 4 that rendered the substances sold a ‘drug of dependence’, Mr Gibson said, in effect, that the prosecution relied on sub-para (c)(i) in the alternative, as a ‘fallback’ submission.
Analysis
Ground 1.a — offence not known to the law
In dealing with the question whether charge 1, as formulated, alleged an offence known to the law, the starting point must be to determine whether the substance alleged to have been trafficked, in breach of s 71AC, was said to be a ‘drug of dependence’.
There were only two legislative routes by which that outcome could have been produced. The first was pursuant to sub-para (c)(i) of the definition of a ‘drug of dependence’ under s 4 of the Drugs Act, and the second, pursuant to sub‑para (c)(ii) of that same definition.
It is convenient to deal first with the sub-para (c)(ii), ‘indirect route’ towards treating ‘anabolic and androgenic steroidal agents’ as a ‘drug of dependence’. It is obvious that this description can only be of a ‘class of drugs’ specified in column 1 of Part 3 of Schedule Eleven. The term ‘Steroidal Agents’ is plainly not a drug in any ordinary sense. Rather, it represents a class of drugs.
Once that conclusion is reached, as inevitably it must be, the question arises whether the ‘class of drugs’ so described can itself, as a matter of construction, be ‘a drug … included in a class of drugs specified in column 1 of Part 3 of Schedule Eleven’. That question sensibly admits of only one answer. That answer must be no. Accordingly, the ‘drug of dependence’ alleged to have been trafficked, on a Giretti basis, during the charge period, was not a ‘drug of dependence’ pursuant to sub‑para (c)(ii).
We next turn to the respondent’s ‘fallback’ position. Here too, there is a difficulty. This is illustrated by reference to a number of authorities dealing with the question of statutory interpretation to be resolved.
Section 37 of the Interpretation of Legislation Act relevantly provides that
unless the contrary intention appears —
…
(c)words in the singular include the plural; and
(d) words in the plural include the singular.
As will be seen, the only sound basis upon which the text of sub-para (c)(i) can accommodate ‘anabolic and androgenic steroidal agents’ as a ‘drug of dependence’ would be through the invocation of s 37 of the Interpretation of Legislation Act. In other words, the disconformity between the use of the singular (‘a substance that is … a drug’) in the s 4 definition of a ‘drug of dependence’ and the reference to the plural (‘steroidal agents’) in column 1 would be resolved by s 37.
Speaking of a comparable provision, the Privy Council said in Blue Metal Industries Ltd v Dilley:
Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.[20]
[20](1969) 117 CLR 651, 656; approved in Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26, 91 (Gaudron and Gummow JJ) (‘Walsh v Tattersall’).
The question then is whether ‘steroidal agents’ (plural) are, in the ordinary sense of that expression, included in sub-para (c)(i) as ‘a substance that is a drug specified in column 1’. As appears below, the use of the words ‘a substance that is a drug’ twice‑fold emphasises the singularity of the definition.
In turn, that is emphasised by the specificity of other relevant definitions and the specificity of individual drugs in column 1.
Section 71AC is contained in Pt V of the Drugs Act. Section 70 sets out a number of definitions which emphasise the singularity of specified drugs of dependence. For example:
·‘Aggregated commercial quantity’ is defined ‘in relation to 2 or more drugs of dependence’. The definition consistently refers to ‘each drug’, ‘a drug’, or ‘that drug’. In addition, the definition refers to ‘a drug of dependence, the name of which is specified in column 1’.
·The same approach underlies the definitions of ‘aggregated large commercial quantity’, ‘commercial quantity’, ‘large commercial quantity’, ‘small quantity’ and ‘traffickable quantity’.
·‘Traffick’ is defined ‘in relation to a drug of dependence’.
This theme of singularity continues throughout Pt V. There are four offences of trafficking in a drug of dependence. The first two offences (s 71 — trafficking in a drug or drugs of dependence — large commercial quantity; and s 71AA — trafficking in a drug or drugs of dependence — commercial quantity) make it an offence to traffick in ‘a drug of dependence’ or in ‘2 or more drugs of dependence’. The contrast drawn by the legislation between these two forms of trafficking and that charged in the present case is stark. The language of s 71AB (trafficking in a drug of dependence to a child) and s 71AC (trafficking in a drug of dependence) does not replicate the distinction between a ‘drug of dependence’ or ‘2 or more drugs of dependence’. Yet, the offences set out in ss 71AA, 71AB, and 71AC were all introduced by the same amending act.[21]
[21]That being, the Drugs, Poisons and Controlled Substances (Amendment) Act 2001.
Column 1 undoubtedly discloses an intention to specify each substance that is a drug of dependence. In addition to ‘anabolic and androgenic steroidal agents’, the only exceptions to the specification of particular drugs are the references in the column to ‘the following synthetic cannabinoids’ and ‘the following classes of synthetic cannabinoids’. Both of these references is followed by a detailed list of specific drugs or classes of drugs of the kind described.
This form of drafting, using the term ‘following’ ahead of the class then designated indicates that the references are to be regarded as headings for the specific drugs or classes of drugs listed underneath. Once again, the contrast with the reference to ‘anabolic and androgenic steroidal agents’, which does not include the term ‘following’, is plain to see. Other than for steroidal agents, those headings do not specify any quantities under columns 1A–4. It might be thought that this reinforces their status as headings, and not as drugs of dependence under sub‑para (c)(i).
As indicated, however, and for reasons that are not immediately apparent, there are specified quantities in columns 2–4 opposite the reference to steroidal agents. It is to be noted that the reference to steroidal agents was introduced by the Regulations. Regulation 1(a) states the objectives of the Regulations include ‘to make anabolic steroidal agents drugs of dependence by adding them to Schedule Eleven’.
Taking the relevant provisions as a whole, it may be that the explanation for the different treatment accorded to steroidal agents, in the structure and text of the table, is that a mistake was made at the time the Regulations were introduced in specifying quantities opposite the reference to steroidal agents in column 1. The likelihood of a mistake having been made is amplified by the fact that the quantities specified opposite the reference to steroidal agents are identical to the quantities specified for each of the specific steroidal agents listed underneath. Once again, the contrast between the treatment afforded to the class of steroidal agents, whereby quantities of 50 grams, 500 grams, and 5 kilograms, are specified in columns 4, 3, and 2, and that afforded to other classes such as ‘synthetic cannabinoids’, where no quantities of any kind are specified, is marked and unexplained.
Further, reading the relevant provisions as a whole, Parliament has, in our view, expressed a ‘contrary intention’ for the purposes of s 37 of the Interpretation of Legislation Act. Accordingly, it follows that a ‘drug of dependence’ means a specified drug of dependence and not, unless expressly stated (as in ss 71 and 71AA), ‘2 or more drugs of dependence’; or a class of drugs of dependence.
This conclusion is supported by the statement by Professor Dennis Pearce in Interpretation Acts in Australia that, in statutes which include deliberate references to both singular and plural, this ‘may indicate that there has been a deliberate intention to mean the singular where it appears on its own elsewhere’.[22]
[22]Dennis C Pearce, Interpretation Acts in Australia (LexisNexis Butterworths, 2018) 98 [4.7]; citing Commissioner of State Revenue v Muir Electrical Co Pty Ltd (2003) 8 VR 200; [2003] VSCA 112, 207 [14]–[16] (Callaway JA, Ormiston JA agreeing at 201–2 [1], Eames JA agreeing at 212 [31]). See, also, F A R Bennion, Bennion on Statutory Interpretation (LexisNexis, 5th ed, 2008) 579, where the learned author comments, correctly, that the simple phrase ‘words in the singular include the plural’ can disguise a number of problems and may require selective pluralising and singularising in complex cases. An example is R v Brentwood Justices; Ex parte Nicholls [1991] 3 All ER 359. See, further, Perry Herzfeld and Thomas Prince, Statutory Interpretation Principles — The Laws of Australia (Thomson Reuters, 2014) 65–6. There, it is noted that the s 37 process of pluralising and singularising may not be appropriate if the relevant Act otherwise expressly and carefully uses the plural or the singular when that is designed.
The Drugs Act, and other similar legislation, are the product of numerous amendments over time. Not surprisingly, provisions drafted in relation to highly technical matters, often involving new drugs that are sought to be prohibited can give rise to difficulties of interpretation. It may be thought that a strict approach to matters of construction, distinguishing between the apparent deliberate use of the singular and the plural is nothing more than a technical, but unmeritorious outcome. It must be remembered, however, that we are dealing with offences of the utmost gravity. In one sense, there are no technical points as such. There are only good points and bad points, so far as the law is concerned. The rule of law demands nothing less than a strict approach to the construction of provisions of this kind.[23]
[23]Walsh v Tattersall (1996) 188 CLR 77, 104–12 (Kirby J, speaking of duplicity).
On the above basis, charge 1 did not charge an offence created by s 71AC, and Ground 1 has, therefore, been made out. Neither sub-para (c)(i), nor sub-para (c)(ii), within the definition of a ‘drug of dependence’ under s 4, provided a proper basis upon which to allege that the various substances, plainly sold by the applicant, and without authority, were relevantly a ‘drug of dependence’.
Accordingly, the conviction on charge 1 must be set aside. Given the nature of this ground of appeal, it matters not that no point regarding the validity of the charge was taken on behalf of the applicant at trial.
It will be a matter for the Director whether any attempt is made to lay fresh charges arising out of the applicant’s conduct in selling the individual substances that, separately designated, undoubtedly constitute drugs of dependence.[24] The fact that such a trial might involve perhaps half a dozen separate Giretti charges, and thereby result in a more heavily loaded indictment may be inconvenient. However, that spectre cannot be called in aid to justify refusing to quash an indictment that is invalid on its face.
[24]We note that in Walsh v Tattersall (1996) 188 CLR 77, the High Court approached the matter in exactly this way. Having quashed the indictment as disclosing no offence known to the law, their Honours left it to the respondent in that case, the prosecuting authority, to decide whether to persist with the prosecution based on a properly worded charge, 92 (Gaudron and Gummow JJ, Kirby J agreeing at 113).
Ground 1.b — duplicity
Having regard to our findings in relation to Ground 1.a, it is strictly unnecessary to deal with this proposed ground of appeal. We would simply say that if, contrary to our views set out above, charge 1 is not invalid for the reasons for which the applicant contends, duplicity is not made out. This would be a Giretti charge of trafficking, and it is obvious that the principles laid down in relation to that form of trafficking stand outside the ordinary rules regarding duplicity.[25]
[25]Walsh v Tattersall (1996) 188 CLR 77, 112 (Kirby J).
Ground 2 — uncertainty
Perhaps the best example of uncertainty as a ground of appeal emerges from the well-known decision of the Full Court of this Court in Trotter v The Queen.[26] In that case, the applicant was convicted of, inter alia, unlawfully and indecently assaulting a child under the age of 16. At the trial, the child who was aged 12 at the date of the alleged offending gave sworn evidence that he was assaulted while lying on a bed, watching television. In re-examination, the child also mentioned an earlier and separate incident in which the applicant had committed an indecent assault upon him in the bathroom, while assisting him to dry himself.
[26](1982) 7 A Crim R 8.
The Full Court held that the indecent assault conviction was uncertain. The vice was that the prosecutor had never been required to specify which of the two separate assaults, as to which the child described, constituted the indecent assault the subject of the charge. While it was clear that the jury must have been unanimous that the applicant had indecently assaulted the victim, it was impossible to know whether there was unanimity on the part of the jury in respect of one or other of the two acts of indecent assault. There might have been a composite verdict with some members of the jury satisfied as to the incident involving the bed, and the others satisfied only as to the drying after the bath.
The hypothesis advanced on behalf of the applicant in relation to Ground 2, that the jury may have reached a composite verdict since some members may have found that the applicant trafficked, for example, testosterone, but no other substance, while others that he trafficked only, for example, nandrolone, is, in the circumstances of this case, almost fanciful. There was no dispute in this trial regarding the various acts of sale that took place, and that there were one or more sales of each of the particularised substances. There was only a claim that the applicant was authorised to do what he did (or perhaps that he believed on reasonable grounds that he was so authorised). Had this ground stood alone, we would have refused leave to appeal in relation to it. It could not have given rise to a miscarriage of justice.
Sentence
Self-evidently, there is no need to say anything at all regarding the application for leave to appeal against sentence in relation to charge 1.
Conclusion
Accordingly, leave to appeal is granted. The appeal is treated as having been heard instanter, and is allowed. We order that the conviction on charge 1, and the sentence of 7 years’ imprisonment imposed on that charge be set aside. All other orders made by the trial judge in relation to charges 2‑9 are affirmed.
---
5
2
0