The Queen v a L (a Pseudonym) - [2016] VSCA 156

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0079

THE QUEEN

AL (a pseudonym)

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JUDGES:	MAXWELL P, WEINBERG and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 JUNE 2016
DATE OF JUDGMENT:	7 JULY 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 156

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CRIMINAL LAW – Statutory interpretation – Case stated – Drug importation – Border controlled drug – Drug analogue – Methylone – Whether analogue of methcathinone – Provision contains scientific terms – Whether ‘addition’ used in technical or ordinary sense – Ordinary English word – Presumption that ordinary meaning intended – Presumption not rebutted by context – Whether subsequent amendment affects interpretation – Criminal Code Act 1995 (Cth) s 314.4, Criminal Procedure Act 2009 ss 302, 305–306.

CRIMINAL LAW – Practice and procedure – Case stated – Questions reserved – Judge made findings of fact – Evidence also included in stated case – Appeal court consideration limited to facts as found – Evidence erroneously included – Criminal Procedure Act 2009 ss 302, 305–306.

WORDS AND PHRASES – ‘addition’, ‘by the addition of’, ‘chemical derivative’.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O P Holdenson QC with Mr D J Lane	Commonwealth Director of Public Prosecutions
For the Accused	Mr D Gurvich QC with Mr Moglia	Victoria Legal Aid

MAXWELL P
WEINBERG JA
KYROU JA:

AL is facing 10 drug importation charges under the Criminal Code (‘Code’), schedule to the Criminal Code Act 1995 (Cth). The drug in question has the chemical name ‘3’,4’–methylenedioxymethcathinone’. It is also known as ‘methylone’.

To prove the importation charges, the prosecution must establish that methylone is a ‘border controlled drug’ within the meaning of s 314.4 of the Code. Subsection (1) contains a table listing 155 different border controlled drugs (‘listed drugs’). Subsection (2) expands the range of border controlled drugs to include any substance which has a specified chemical relationship with a listed drug.

There is a dispute between the parties as to whether methylone has the requisite chemical relationship with the drug methcathinone, itself a listed drug. To enable that dispute to be resolved before trial, the judge has reserved questions of law and stated a case for determination by this Court, pursuant to ss 302(2) and 305 of the Criminal Procedure Act 2009. (The case stated is included as an Appendix to these reasons for judgment.)

The case stated procedure

In our respectful view, this was an eminently suitable case in which to use the case stated procedure. Put simply, the answers to the questions reserved would determine whether or not there was a trial of the importation charges. The case stated is clear and comprehensive and his Honour made all of the necessary findings of fact to enable us to decide the reserved questions.

There was, however, one defect in the case stated which — for the assistance of those wishing to use this procedure in the future — should be corrected. Having listed the expert witnesses who had given evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v a L (a Pseudonym)

Details

AGLC: The Queen v a L (a pseudonym) [2016] VSCA 156
Case: [2016] VSCA 156
Decision Date: 7 JULY 2016

CaseChat Overview and Summary

The case before the court involved a person, referred to as a pseudonym, who was charged with drug importation under the Criminal Code Act 1995 (Cth). The main issue was whether methylone, the substance imported, qualified as an analogue of methcathinone. This determination hinged on interpreting the statutory language of the Act, particularly the definition of "border controlled drug" and the term "addition" within the context of chemical derivatives. The court had to decide whether the term "addition" was used in a technical or ordinary sense and whether a subsequent amendment to the legislation affected the interpretation of the original Act.

The legal issues before the court involved the interpretation of the term "addition" in the context of statutory definitions and the presumption that ordinary meaning is intended unless the context suggests otherwise. The court also had to determine whether the inclusion of evidence in the case statement, which was not found by the judge, could be considered by the appeal court. The appeal court was tasked with deciding whether the statutory interpretation led to the conclusion that methylone was an analogue of methcathinone and whether the inclusion of extraneous evidence impacted the appeal process.

The court found that the term "addition" in the statute was used in its ordinary sense and was not a technical term. The court held that the ordinary meaning of "addition" was not rebutted by the context of the provision. The court also determined that the subsequent amendment did not affect the interpretation of the original Act. The appeal court noted that evidence erroneously included in the case statement could not be considered, and the appeal was limited to the facts as found by the judge. Consequently, the appeal was dismissed, and the conviction was upheld.

The final orders of the court were that the appeal be dismissed and the conviction upheld. The court found that the interpretation of the term "addition" led to the conclusion that methylone was not an analogue of methcathinone, but the error in the case statement did not impact the outcome of the appeal. The court's decision was based on the statutory interpretation and the limited scope of the appeal court's review of the case.

Orders