Criminal procedure - Application to set aside guilty plea and conviction prior to sentence pursuant to s 143 Criminal Procedure Act 2004 - Whether applicant's possession of prescribed drugs lawfully excused pursuant to s 6(3) Misuse of Drugs Act 1981 - Construction of s 6(3) Misuse of Drugs Act 1981 - Whether discretion to set aside conviction - Turns on own facts

The State of Western Australia : Ms A L Forrester SC with her Ms S P Walker

The State of Western Australia : State Director of Public Prosecutions

Anderson v The State of Western Australia [No 2] [2015] WASCA 91

Birch v The State of Western Australia [2017] WASCA 19

LFG v The State of Western Australia [2015] WASCA 88

The State of Western Australia v Wongawol [2010] WASC 324

1 BIRMINGHAM QC DCJ: In Perth IND 1418/2016 it is alleged that on 6 April 2016 at Eden Hill the applicant Kylie Ann Coccetti had in her possession a prohibited drug, namely dexamphetamine, with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act (MDA).

2 On 31 August 2017 I dismissed the applicant's application to set aside her conviction entered on 19 January 2017. The following are my reasons.

3 On 19 January 2017, upon being arraigned before me, consistent with the plea previously entered in the Midland Magistrates Court on 5 August 2016, the applicant pleaded guilty to the charge. A judgment of conviction was pronounced.

4 Thereafter the facts were read and the applicant, through her counsel, accepted the facts as alleged.

At about 8 am on Wednesday, 6 April 2016, police executed a Misuse of Drugs Act search warrant at 23 Gallagher Street in Eden Hill. During the search, the offender declared to police two bottles of dexamphetamine in the top drawer of her dresser drawers. The bottles were unsealed, the prescription labels were ripped off and they contained respectively 100 tablets and 55 tablets, a total of 155 tablets. The offender also declared a lock box inside a book located under her dresser drawers. The offender was in possession of a key. The lock box contained a further three bottles of dexamphetamine and a small square cardboard box containing dexamphetamine tablets. Two of the bottles were unsealed and one was sealed. Each bottle contained 100 tablets, 79 tablets and 100 tablets respectively. The cardboard box contained 44 tablets. There was a total of 323 tablets. All up there was a total of 478 tablets seized from the offender which has a weight of 94.42 grams of dexamphetamine.

The offender admitted possessing the dexamphetamine but stated that she was holding it for a friend.

The offender was arrested, charged and bailed.

6 It was submitted on behalf of the applicant that the drugs were held by her for safekeeping for a friend simply as bailee. The accused later identified that person as Rebecca Murphy.

7 The State did not accept the explanation proffered by the applicant. The hearing was adjourned for a trial of the issues, namely whether the applicant was in possession of the drugs with intent to sell or supply, that is to say for commercial purposes, or whether she was guilty of supply only, that is simply as a bailee to redeliver them to the true owner.

8 On 4 April 2017, counsel for the applicant, Mr Senaratne, informed the court that he did not investigate the applicant's instructions that she was holding on to the drugs as a bailee. Mr Senaratne said that he had since contacted Ms Murphy and caused a witness statement to be recorded from her. Further, he had disclosed Ms Murphy's whereabouts and contact details to the State and her statement was later obtained.

9 In her statement dated 30 March 2017 (exhibit 13), Ms Murphy stated that she had a prescription for dexamphetamine tablets and that from time to time during the period from 31 August 2015 and December 2016 she had left some of her medication with the applicant.

10 In the course of debate on 4 April 2017, the possibility of the applicant having a defence to the charge pursuant to s 6(3) of the MDA was raised. Thereafter, the hearing was adjourned to allow the applicant to seek alternate representation and to make an application to set aside her conviction and change her plea.

11 On 9 June 2017 the applicant applied to change her plea.

12 It is common ground that the applicant was in possession of dexamphetamine tablets, that dexamphetamine is a prohibited drug and that another person (Rebecca Murphy) had an authorised prescription for dexamphetamine issued by her medical practitioner pursuant to s 23(2)(d) of the Poisons Act 1964 (as it then was).

13 The applicant now contends her plea should be set aside and that she should be permitted to defend the charge. The applicant says that her plea was entered in error and without the benefit of having received any legal advice as to a possible defence to the charge. The applicant says that she has a good defence to the charge pursuant to s6(3) of the MDA and to allow her conviction to stand would give rise to a miscarriage of justice.

14 The application to change the applicant's plea and the trial of issues as to the circumstances under which the applicant was in possession of the 478 dexamphetamine tablets found were heard together.

15 The parties agreed that s 99 of the Criminal Procedure Act 2004 was not applicable, however, each contended, consistent with the judgment of Mazza JA in Birch v The State of Western Australia [2017] WASCA 19 [174], that the court retained an inherent discretion to allow a change of plea to not guilty up until sentence is pronounced if the person established that there was a miscarriage of justice. At [213] in Birch, his Honour stated that the common law principle was

of such strength as to require clear and unambiguous statutory language in order to abrogate its operation.

16 With respect, that is a position I find difficult to reconcile with the clear expression in s 148 of the Criminal Procedure Act. I note that the court was seemingly not referred to s 148 in Birch.

If a court convicts an accused of an offence, then, subject to The Criminal Code section 5, the Sentencing Act 1995 and the Young Offenders Act 1994, the court must sentence the accused for the offence and may make other orders in respect of the accused under those Acts or any other relevant written law, as the case requires.[emphasis]

18 In The State of Western Australia v Wongawol [2010] WASC 324, where it was asserted that the plea was entered in error to the charge upon which the accused was indicted, Murray J said [19]:

.... The plea was unequivocal and it was accepted. The misconception about the availability of s279(1)(c) did not in my view qualify the plea when made or the effectiveness of the conviction entered. That having occurred, pursuant to the Criminal Procedure Act, 2004 (WA) s 147(1) the Court was committed to sentence the offender for the offence of which he had been convicted: Criminal Procedure Act, s148. The conviction could only be vacated on appeal, a body of law which governs when the Court of Appeal will feel that there is justification or necessity to set aside a conviction entered upon a plea of guilty.

19 Whilst I respectfully differ with the position adopted by the parties in relation to this application, in the absence of the point being fully argued by the parties and in the light of my findings and conclusion on the merits of the application on the facts and proper construction of s 6(3) of the MDA, it is unnecessary for me to express a concluded view at this time. Accordingly, I propose to deal with the matter on the assumption that, at common law, I have jurisdiction insofar as sentence has not yet been pronounced.

20 The common law position is set out in Anderson v The State of Western Australia [No 2] [2015] WASCA 91, which provides as follows:

1. The principles with respect to the setting aside of a conviction based on a plea of guilty are well established.
2. A conviction based on a plea of guilty cannot be set aside unless the appellant satisfies the court that a miscarriage of justice has occurred. Although the categories of miscarriage of justice are not closed, there are three well-recognised grounds for allowing such an appeal:
   1. where the appellant did not understand the charge or did not intend to plead guilty; or
   2. where on the admitted facts, the appellant could not, in law, be guilty of the offence; or
   3. where the plea of guilty has been obtained by inducement, fraud or intimidation or the like.

See Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J); Borsa v The Queen [2003] WASCA 254 and Snook v The State of Western Australia [No 2] [2015] WASCA 29.

1. It is no easy feat to persuade a court to set aside a plea of guilty on the basis of a miscarriage of justice. This is particularly so where, as in this case, the appellant was represented by counsel at the time he entered his pleas. There must be a strong case for the court to set aside a conviction based on a guilty plea: Windie v The State of Western Australia [2012] WASCA 61 [31].

21 In the normal course, where a person is represented by counsel, the court will generally be entitled to rely on counsel having explained to the defendant the legal and factual matters necessary to allow a defendant to make an unequivocal plea of guilty. The plea of guilty is taken to be an informed and deliberate admission by the accused of the necessary elements of the charge.

22 Once the plea is taken and the conviction recorded, because of the public interest in the finality of proceedings, as noted by Mazza JA in Birch [177], the courts approach to an application to change the plea must be one of 'caution bordering on circumspection'.

23 When considering as to whether the applicant may not have committed the offence, the question is whether it is reasonably arguable that the applicant did not commit the offence. What is required is that the applicant is required to demonstrate that there is a realistic prospect which is not slim or fanciful or remote that she did not commit the offence charged.

24 I accept that the applicant was not given advice in relation to s 6(3) of the MDA and that her plea was entered without consideration of whether she had a possible defence.

25 The question is whether the applicant can establish that it is reasonably arguable that the applicant could avail herself of the defence available under s 6(3) of the MDA such that to allow her conviction to stand would give rise to a miscarriage of justice.

1. Offences concerned with prohibited drugs generally

(a) with intent to sell or supply it to another, has in his possession; or

(c) sells or supplies, or offers to sell or supply, to another,

a prohibited drug commits a crime, except when he is authorised by or under this Act or by or under the Poisons Act 1964 to do so and does so in accordance with that authority.

(2) Subject to subsection (3) and to section 36A of the Poisons Act 1964, a person who has in his possession or uses a prohibited drug commits a simple offence, except when, in the case of a person who has the prohibited drug in his possession -

(a) he is authorised by or under this Act or by or under the Poisons Act 1964 or the _Industrial Hemp Act 2004_to do so and does so in accordance with that authority; or

(b) the prohibited drug was sold or supplied, or requested to be sold or supplied, to him -

(i) by a medical practitioner, nurse practitioner or veterinary surgeon in the lawful practice of his profession; or

(ii) on and in accordance with an authorised prescription.

(3) A person does not commit a crime under subsection (1) or a simple offence under subsection (2) by reason only of his having in his possession or manufacturing or preparing a prohibited drug if he proves that he had possession of or manufactured or prepared **the prohibited drug only for the purpose of - **

(i) to have possession of the prohibited drug by or under this Act, by or under the Poisons Act 1964 or on and in accordance with an authorised prescription; or

(ii) by or under this Act or by or under the Poisons Act 1964 to manufacture, prepare, sell or supply the prohibited drug,

and had possession thereof (except in the case of intended delivery to a person authorised to have possession of the prohibited drug on and in accordance with an authorised prescription) in accordance with the authority in writing of the person so authorised**, and that, after taking possession of the prohibited drug, he took all such steps as were reasonably open to him to deliver the prohibited drug into the possession of that person**; or

(b) analysing, examining or otherwise dealing with it for the purposes of this Act in his capacity as an analyst, botanist or other expert.

'Authorised prescription' means a document or prescription -

(a) referred to in s 23(2)(d) of; and

(b) complying with, the Poisons Act 1964.

28 Relevantly, s 23(2)(d) of the Poisons Act authorises a medical practitioner to issue a prescription authorising the sale or supply of a drug of addiction or specified drug in the lawful practice of his profession.

29 Neither counsel were able to refer me to any authority on the proper construction and operation of s 6(3) of the MDA. It falls for consideration under general principles.

30 In LFG v The State of Western Australia [2015] WASCA 88, Buss JA set out the approach to be taken to construing an Act as follows [307] - [308]:

The modern approach to statutory construction is purposive. The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text must begin by considering the context, in its widest sense. This will include the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ); Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82] (Crennan & Bell JJ); Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 [43] - [44] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).

31 Section 6(3) of the MDA exempts from criminal responsibility those persons in possession of prohibited drugs who are duly authorised to do so either under the MDA or the Poisons Act 2014.

32 It provides for, and facilitates, the proper prescription and dispensing of drugs listed in the Poisons Act 2014 for medical purposes. It further permits those involved in the discharge of the provision of care to persons under disability to collect and deliver prescribed medicines to the person to whom the drug has been duly prescribed in accordance with s 23(2)(d) of the Poisons Act 2014.

33 Section 6(3) of the MDA creates an express defence when a person is in possession of a prohibited drug, if he or she proves that he or she had possession of the drug only for the purpose of delivering it to a person who was authorised to have possession of the drugs pursuant to the Poisons Act or on and in accordance with an authorised prescription and, after taking possession of the prohibited drug, he or she took all such steps as were reasonably open to him or her to deliver the prohibited drug into the possession of the authorised person.

34 In my view, for the applicant to be lawfully in possession of the prohibited drugs pursuant to s 6(3) of the MDA, the applicant must demonstrate on the balance of probability that:

(i) she had possession of the prohibited drug solely for the purpose of delivering it to a person who was authorised to have possession of the drugs on and in accordance with an authorised prescription;

(ii) the person to whom she intend to deliver the prohibited drugs was authorised to have possession of the drugs on and in accordance with an authorised prescription; and

(iii) after taking possession of the prohibited drug, she took all such steps as were reasonably open to her to deliver the prohibited drug into the possession of that person.

35 In my opinion, s 6(3) permits persons to be in possession of prohibited drugs that have been prescribed to others for the purpose of delivery to that authorised person but not otherwise.

36 I consider that the use of the words 'after taking possession of the drugs' and 'took all such steps as were reasonably open to him to deliver the prohibited drug into the possession of that person' imports a temporal element into the obligation - that is to say, to immediately or as soon as reasonably possible take all such steps reasonably open to him or her to deliver the drug to the person authorised to lawfully have them.

37 In my opinion, s 6(3) does not permit a person to store and subsequently dispense prohibited drugs and to, in essence, warehouse the drugs and then deliver or dispense them to the authorised person at will. To do otherwise would allow the bailee to circumvent the regulated control of and dispensing of drugs that is otherwise prohibited under the Poisons Act 2014.

38 If the applicant is able to establish on the balance of probabilities that all of the dexamphetamine tablets in her possession were the property of Ms Murphy, that she had them in her possession for the purpose of re-delivering them to Ms Murphy and that after taking possession of the drug she took all such steps as were reasonably open to her to deliver the drugs into the possession of Ms Murphy, she would not be guilty of the offence charged

39 In his affidavit sworn 13 June 2017 the applicant's former solicitor, Mr Senaka Senaratne, deposed that:

• He represented Ms Coccetti in the proceedings.
• On 4 July 2016 the applicant gave him instructions consistent with what she had said to the police in her electronically recorded interview in respect of her possession of approximately 87 grams of dexamphetamine, namely that she was holding the drugs for a friend.
• He did not advise the applicant in relation to the application of s 6(3) of the MDA.

40 In his affidavit sworn 19 June 2107, Dr Paterson, a consultant psychiatrist, deposed that:

• He has been Ms Murphy's psychiatrist from 11 November 2011.
• He initially saw her on six-month intervals for the first few years, then annually with her GP providing a repeat prescription for dexamphetamine in a six-monthly alternating co-prescribing arrangement with him.
• He saw Ms Murphy most recently on 31 July 2015. On that occasion he gave her a prescription for a six-month supply of dexamphetamine 5 mg tablets. Her GP was to provide a similar prescription early in 2016.
• Ms Murphy did not return to see him in 2016.

41 In his affidavit sworn 21 June 2107, Dr Samuel Irekpolo of the Bayswater Medical Centre, deposed that:

• He has been Ms Murphy's medical practitioner since January 2015.
• Ms Murphy had a history of attention deficit hyperactivity disorder and was prescribed to take up to 12 x 5 mg tablets per day.
• On 19 May 2015 he issued a prescription to Ms Murphy for 300 tablets with no repeat.
• On 15 January 2016 a second prescription was issued by him for 300 tablets with six repeats.
• Both prescriptions were PBS authorised.
• On 13 March 2017 he was instructed to terminate medication prescribed for Ms Murphy as she had not attended her consultant psychiatrist for review as required by law.

Visually recorded search of the applicant's property (exhibit 5)

42 The visually recorded search of the applicant's premises discloses:

• At about 8.00 am on Wednesday, 6 April 2016, police executed a MDA search warrant at 23 Gallagher Street, Eden Hill.
• The applicant was searched. A pipe and bag of methylamphetamine fell out of her jumper as it was removed. Further, a small bag containing methylamphetamine together with three $50 notes were found concealed in her bra.
• Prior to the search of the house being undertaken, the applicant disclosed that she had a 'few bottles' of dexamphetamine in her bedroom that she was holding for a friend (ts 56).
• The applicant further disclosed that she was holding two bottles of dexamphetamine in the top drawer of her dresser in the bedroom.
• Upon the search of the top drawer two bottles of dexamphetamine were located (exhibits 6A and 6B).
• Exhibit 6A was unsealed and contained 100 tablets or 19.6 grams of dexamphetamine. Exhibit 6B was unsealed and contained 55 tablets or 11 grams. Whilst the labels on each had been partially removed, that portion of the label remaining on each suggests that they were dispensed by a 'Max' pharmacy.
• When later questioned about those bottles and why they were placed amongst her clothing in the top left-hand drawer of the dressing table rather than with the other dexamphetamine tablets that were located in a locked box, the applicant stated that she 'hadn't had a chance to put the other ones away' (ts 45).

Bottles marked exhibits 6A and 6B are seemingly not dispensed by Ashfield Community Chemist - the pharmacy that had dispensed Ms Murphy's prescribed dexamphetamine to since January 2016.

• The applicant further stated that she had a locked box inside a black book safe that was disguised as a 'New English Dictionary' secured underneath the chest of drawers. The applicant had the key to the locked box in her handbag and was the only person with access to it. The applicant told the investigating officer (ts 59) that 'there might be two more bottles in there'. When asked how she knew that the tablets were in the locked box, the applicant said - 'we put them there - that I haven't been in there for a while'.
• The locked box contained three bottles of dexamphetamine (exhibits 8A, 8B and 8C) and a small square flower patterned cardboard box (exhibit 7). The bottles (exhibits 8A and 8C) were both sealed and each contained 100 dexamphetamine tablets or 20 grams. The bottle (exhibit 8B) was unsealed contained 79 dexamphetamine tablets (15.9 grams).
• The bottle (exhibit 8A) had a prescription label indicating it as being dispensed by Ashfield Community Chemist upon a prescription issued by Dr S Irekpolo to Ms Murphy on 8 March 2016 - four weeks prior to the search warrant being executed. The prescription label stated that the bottle as being 'pack 3 of 3' - indicating that two further bottles had been dispensed at that time.

The date that these drugs were dispensed does not sit well with the applicant's explanation at the time of the search that 'she hadn't been in the box for a while'.

• The prescription label on bottle (exhibit 8C) had been partially removed. It is apparent from such of the label that remained however that, like exhibit 8A, it was dispensed by Ashfield Community Chemist and had seemingly been prescribed by Dr S Irekpolo - Ms Murphy's GP. The contents expiry date was July 2017.
• The label on the third bottle (exhibit 8B) had been removed. The contents expiry date was October 2016 and was seemingly from a different batch to exhibits 8A and C and had been dispensed at a different time.
• The small flower patterned cardboard box (exhibit 7) contained 44 dexamphetamine tablets (8.02 gms). When asked during the search about those tablets, the applicant said - there 'might be 40 or 50 or something'. She further stated that the friend 'comes and gets them off me, like a little bit so she doesn't use them all'. The applicant said that those tablets had been given to her by Ms Murphy from her handbag. In addition to the dexamphetamine tablets, a blue pipe used by the applicant to smoke drugs and two MDMA or ecstasy tablets were also located in the locked box.
• A further sealed bottle containing dexamphetamine tablets was located in the top drawer of a set of white drawers in the main bedroom. The applicant denied all knowledge of those drugs. Those tablets are not the subject of any charge.
• During the search on 6 April 2016, an empty Tramadol box (exhibit 7) was located on the bedside table next to the applicant's bed. The box carried a label that indicated that such drug had been dispensed to the applicant on 23 March 2016 - 11 days earlier. Five names with amounts in figures next to each name were written on the box. The police put to the applicant that the document was a 'tick list' of money owed in respect of illicit drugs sold by her. The applicant denied selling illicit drugs.
• The applicant declared that the dexamphetamine tablets did not belong to her and that she was holding for her friend, later identified as Rebecca Murphy. She denied selling the dexamphetamine tablets.

43 In her affidavit sworn 9 June 2017, the applicant deposed that:

• The 478 dexamphetamine tablets found in her bedroom by the police on 6 April 2016 were held by her for 'safe storage' on behalf of her friend, Ms R Murphy.
• She had disclosed the tablets and that she was holding them for her friend to the police at the time of the search warrant being executed.
• She was advised to plead guilty on the fast track system to get the full discounts for an early plea.
• Notwithstanding her explanation that she held the tablets on behalf of a friend, she was not advised as to any possible defences that may be available to her pursuant to s 6(3) of the MDA.
• The applicant maintained that all of the dexamphetamine tablets belonged to Rebecca Murphy.

44 On the hearing of the application, the applicant was cross-examined in relation to notes made by her on the empty Tramadol box (exhibit 7). One of the names on the box was 'Bec' with the figure '400?' written next to it.

45 The applicant denied that the entry 'Bec' related to Rebecca Murphy or that the names and numbers referred to quantities of dexamphetamine tablets. The applicant said the list was in respect of money owed to her by various people in respect of amphetamine she had sold to them. When interviewed on 6 April 2016, that applicant denied that she sold drugs or that the document was a 'tick list'.

46 The applicant was unable to explain the entry '250 (Bottle Dex)', however denied that it referred to dexamphetamine. The applicant was further unable to provide any satisfactory explanation as how such entry related to amphetamine said to have been sold by her.

47 The applicant said that the entry '800 on me' referred to cash, but acknowledged that at the time of the search she then had only $150 on her. She maintained that the entries referred to money owed to her.

48 The applicant was unable to offer any satisfactory explanation for the text messages between her and Shervon Farrell on 5 November 2015 between 12.16 pm and 5.36 pm (exhibit 12) to the effect:

Kylie can you please help me out with some weed pls?

I don't have enough chik, sorry

or I would.

Kylie do you got any bottles?

No, sorry.

49 The applicant said that the reference to 'bottles' related to alcohol and not dexamphetamine (ts 114). In the context where the earlier message referred to a request for an illicit drug, namely cannabis, the explanation proffered by the applicant is implausible.

50 The applicant acknowledged that she had been convicted on her plea of guilty in 15 August 2015 of simple possession of 42 dexamphetamine tablets. The explanation then offered to the court by her was that the drugs were hers. In her evidence the applicant said that those tablets in fact belonged to Ms Murphy and whilst she and Ms Murphy tried to tell that to the police the true position, she elected to accept responsibility for them in the face of a threat of being charged with possession with intent to sell and supply. The applicant said that although Ms Murphy did not live with her in 2014 she had looked after her drugs for her and ultimately accepted criminal responsibility for them.

51 I note that offence (together with offences for possession of cannabis and drug paraphernalia) was committed on 29 April 2015 - some four months prior to the period Ms Murphy nominated as being when she left her medication with the applicant. In the circumstances, I do not accept that the quantity of dexamphetamine tablets in the applicant's possession at that time was the property of Ms Murphy.

52 In her statement dated 30 March 2017 (exhibit 13), Ms Murphy stated that:

• For period from 31 August 2015 to December 2016 she was homeless and stayed intermittently with the applicant.
• She had an on-going prescription for dexamphetamine (par 10).
• She would collect her scripts from Bayswater Medical Centre and Dr Paterson (par 15),
• She would fill her scripts at Ashfield Community Pharmacy (par 16).
• Sometimes she would rip the label of her pill bottles.
• She did not take her dexamphetamine as directed (par 19).
• She would keep some of her medication at the applicant's house.
• She had 'for sure' left two bottles of dexamphetamine at the applicant's house in her room, top draw; 'One was opened and the other unopened'.

Seemingly, Ms Murphy is referring to the tablets in the top drawer (exhibits 6A and 6B). As noted above, these two bottles were dispensed by a pharmacy other than Ashfield Community Pharmacy.

• She would leave bottles of tablets at the applicant's and was not sure where they were kept by the applicant.

53 Ms Murphy gave evidence that she would remove the prescription labels on the drugs given to her so that people would not know what drugs she was taking. She further said that she left drugs at the applicant's house when she stayed there and that the applicant would sometimes collect drugs from her washing and keep them for safekeeping.

54 Ms Murphy said that in April of 2016 she was not taking her medication but that she was 'a hoarder' and, although she did not need the medication, she did not want the amount prescribed to be reduced. She said that she never considered just throwing the tablets out. Ms Murphy acknowledged that she had failed to return to see Dr Paterson and that her prescriptions for dexamphetamine tablets had ceased.

55 Ms Murphy said that she left her script with the one pharmacy and that since January 2016 her scripts were dispensed by Ashfield Community Pharmacy. She acknowledged that she was not permitted to use her script at different chemists. She said that she was able to obtain 21 days' supply (300 tablets) on each occasion.

56 Given that the applicant had entered her plea and accepted responsibility for the tablets the subject of the charge in January 2017 - albeit on a reduced basis - I view with considerable scepticism the fact that the contact details of Ms Murphy were not proffered to the State earlier. Such information was seemingly only offered to the State when the extent of the seriousness of the offending had been highlighted in the course of sentencing and the likelihood of an immediate term of imprisonment being foreshadowed.

57 Ms Murphy's statement referring to placing the two bottles in the top drawer cannot be reconciled with her evidence that she had the script for the tablets dispensed by Ashfield Community Pharmacy since January 2016 and the applicant's evidence that those tablets had only recently been received by her (the applicant) and she had not had time to put them away.

58 Those two bottles in the top drawer of the dresser (exhibits 6A and 6B) were not dispensed by Ashfield Community Pharmacy.

59 I consider that the evidence of both Ms Murphy and the applicant has all the hallmarks of concoction to explain the presence of the two bottles of dexamphetamine tablets found in the top drawer and not with those other bottles of tablets (exhibits 8A, 8B and 8C) kept in the locked box under the dresser. Two of those bottles (ex8A and 8C) were dispensed by the Ashfield Community Chemist on 8 March 2016. If exhibits 6A and 6B were recently obtained as each declared, one would have expected those two bottles to have also been to have been dispensed by that chemist.

60 Whilst it was not the subject of any submission by the parties, I observe that, seemingly, Ms Murphy was not duly authorised to have possession of the dexamphetamine that was being held by the applicant in any event.

61 I consider that the words in s 6(3)(a)(i) 'on and in accordance with an authorised prescription' would only authorise Ms Murphy to be in possession of dexamphetamine in accordance with the prescription issued by Dr S Irekpolo pursuant to s 23 of the Poisons Act 1964 and not otherwise. Ms Murphy was required to consume the tablets in accordance with the prescription. Ms Murphy was not authorised to 'hoard' her medication and, thereafter, consume it in such manner as she thought fit. To allow a patient to not use the otherwise prohibited drugs duly prescribed to her for a specific purpose and to accumulate them would be contrary to the intent of the MDA to ensure that prohibited drugs are dispensed into the community in limited controlled circumstances.

62 In the circumstances, where Ms Murphy was not using her prescribed medication in accordance with her prescription, I consider that Ms Murphy was not entitled to be in possession of the dexamphetamine that was not being consumed by her as directed by the prescribing medical practitioner.

63 I find the applicant to be an unconvincing witness who is, seemingly, prepared to say whatever is necessary to present a picture that she held the drugs as bailee. Such are the inconsistencies and the glaring improbability of her explanations; I am unable to accept her testimony on any matter. It is apparent the she was prepared to lie to the police about the entries on the 'tick list' and that she did not sell amphetamine. I considered the applicant's evidence that she was prepared to proceed to conviction on a prior occasion for drugs in her possession belonging to another and yet, thereafter, continue to hold a considerable greater quantity of similar drugs on behalf of Ms Murphy (together with her own other illicit drugs), notwithstanding that she had suffered a criminal conviction eight months prior for similar conduct is implausible.

64 Furthermore, having regard to where the drugs were stored in association with other drugs and drug paraphernalia belonging to the applicant, that Ms Murphy was not shown where the drugs were stored and did not have a key to the locked box, I am unable to accept that the applicant held the drugs as mere bailee.

65 It was Ms Murphy's evidence that since January 2016 her scripts had only been filled by the Ashfield Community Chemist and that they held the script. The patient history record for Ms Murphy (exhibit 5, page 129 - 130) maintained by the Ashfield Community Chemist, disclosed that it dispensed to Ms Murphy 300 dexamphetamine tablets in accordance with the prescription issued by Dr Irekpolo dated 5 January 2016 on the following dates: 5 and 28 January 2016; 19 February 2016; 8 March 2016; 29 March 2016; 21 April 2016; and 12 May 2016. Ms Murphy said that, whilst she was not taking the prescribed dosage and did not take her medication regularly - such that she was able to accumulate some 478 tablets, she continued to have her scripts filled every 21 days as she did not want to lose her prescription. [As noted above, I consider that Ms Murphy was not entitled to possess such medication other than in accordance with the prescription.]

66 The applicant was arrested on 6 April 2016 and the whole of the quantity of dexamphetamine tablets held by the applicant were seized. If, as both Ms Murphy and the applicant maintain, the two bottles of tablets in the top drawer had been delivered by Ms Murphy a few days earlier, those bottles must necessarily have to be part of those tablets dispensed prior to 6 April 2016.

67 It is apparent from the labels that those tablets (exhibits 6A and 6B) were issued by a pharmacy other than Ashfield Community Chemist. Further, each had significantly aged expiry dates.

68 I do not accept Ms Murphy's testimony that she had placed the two bottles (exhibits 6A and 6B) located in the top drawer - it has all the hallmarks of concoction to provide an explanation for the tablets found in that drawer.

69 As noted earlier in these reasons, I find that those tablets were not dispensed by the pharmacy that was being used by Ms Murphy in 2016. If, as the applicant and Ms Murphy state, such tablets had been delivered to the applicant shortly prior to the search, it is implausible that they were dispensed to Ms Murphy. At that time her scripts were then being filled by Ashfield Community Pharmacy.

70 In such circumstances I am satisfied beyond reasonable doubt that such tablets were not tablets issued pursuant to a prescription in favour of Ms Murphy.

71 I accept that two of the containers (exhibits 8A and 8C) were dispensed to Ms Murphy by the Ashfield Community Chemist on 8 March 2016 and that they were subsequently delivered to the applicant by Ms Murphy.

72 On 6 April 2016, the applicant told the police that there were 'two' containers in the locked box. Exhibits 8A and 8C were, seemingly, the tablets to which the applicant referred.

73 The differences in appearance of the remaining containers found in the locked box and the extent to which the applicant intermingled those drugs with her own illicit drugs and drug paraphernalia causes me to hold some grave reservations as to the applicant's and Ms Murphy's evidence, and consider that it must be viewed with a high degree of circumspection.

74 This is particularly so if one has regard to the very significant quantity of tablets held by the applicant (in the context of having previously been convicted of a similar offence eight months previously), where the tablets were stored in different locations, how some of the tablets (44) were in a box rather than a bottle and intermingled with other illicit drugs and drug paraphernalia, the contents of the 'tick list' in respect of alleged sales of methylamphetamine recorded on the empty Tramadol capsule packet that was prescribed for the applicant on 23 March 2016 including the reference to '250 (bottle dex)' and the text message that, seemingly, refers to the applicant being asked to supply a 'bottle'.

75 The matter for the trial of issues, namely whether the applicant held the tablets for commercial purposes - that is, with intent to sell or supply - is an aggravating feature the offence and, accordingly, it is a matter upon which the State must discharge the onus.

76 I am not satisfied beyond reasonable doubt that the tablets in the locked box are not the property of Ms Murphy and that the applicant was not holding them as bailee.

77 Even if the applicant's evidence were to be accepted by me, at its highest, on the proper construction of s 6(3) of the MDA, the applicant will not avoid criminal responsibility. The applicant is required to establish that she took all reasonable steps to re-deliver the tablets to Ms Murphy after taking delivery of the tablets.

78 Importantly, the standard to which the applicant must establish the defence is to that of on the balance of probabilities. The question is whether it is more probable than not that she had all of the tablets in her possession, that they were all the property of Ms Murphy who was authorised to have them and that she took all reasonable steps as soon as she obtained possession of the drugs to re-deliver them to Ms Murphy.

79 In my view, on its proper construction, s 6(3) does not authorise the applicant to, in essence, act as a dispensary for prohibited drugs.

80 Having regard to the quantity of dexamphetamine tablets in the possession of the applicant, the dates on the containers, the places where they were located in the applicant's premises and to the extent that they were intermingled with the applicant's own other illicit drugs, I consider that the applicant could not establish that she had taken all reasonable steps to deliver the drugs to Ms Murphy after initially taking possession of those tablets.

81 Whilst the question as to whether the applicant held the tablets on behalf of Ms Murphy as a bailee, that is to say to be re-delivered at some future time such that she had possession with an intent to supply only without any commercial element, is relevant to the question of sentence, in my opinion, s 6(3) MDA does not afford the applicant a defence in the circumstances as I find them to be.

82 In reviewing the materials and having regard to the evidence given before me by Ms Murphy and the applicant, I am not persuaded on the balance of probabilities that it is reasonably arguable that the applicant has a defence open to her and reasonably available under s 6(3) of the MDA. Taken at its highest, the evidence is that:

• Ms Murphy was only authorised to have possession of the prohibited drug pursuant to a prescription issued to her and not otherwise.
• During the time that Ms Murphy was prescribed the drugs, the drugs were delivered or left with the applicant to hold.
• The applicant would make the drugs available to Ms Murphy as and when she required them.
• The applicant did not take any steps whatsoever after taking possession of the drugs on each occasion to deliver the drugs into the possession of Ms Murphy.
• The applicant held the drugs on behalf of Ms Murphy as a bailee to dispense to her as and when Ms Murphy required them.

83 In my opinion for the defence under s 6(3) of the MDA to be available, the applicant must demonstrate that:

• The drugs in her possession were for the purpose of delivering it to Ms Murphy.
• Ms Murphy, in accordance with an authorised prescription, was entitled to receive the drugs.
• After taking possession of the drugs, the applicant immediately took all reasonable steps as were reasonably open to deliver the prohibited drug into the possession of Ms Murphy.

84 It is clear from the evidence that the applicant had been in possession of the drugs for a considerable period of time (search ts 42).

85 When the materials are evaluated as a whole, it is not reasonably arguable that the applicant may not have committed the offence of which she has been convicted.

86 There is no realistic prospect which is anything other than slim, fanciful or remote, that she did not commit the offence insofar as it would not be open to her to demonstrate that she took all such steps as were reasonably open to her to deliver the prohibited drug into the possession of Ms Murphy.

87 In the circumstances, the application to change her plea is refused. The application is dismissed.

88 In relation to the trial of issues and as the basis upon which the applicant is to be sentenced, I am satisfied:

• beyond reasonable doubt that the two bottles of tablets (exhibits 6A and 6B) located in the top drawer of the dresser were not dispensed pursuant to a prescription in favour of Ms Murphy. It follows that the applicant has failed to establish that she held those tablets as bailee. Having regard to the quantity of prohibited drug in the two bottles, pursuant to s 11(a) of the MDA, the applicant is deemed to have those drugs in her possession with the intent to sell or supply them to another - the applicant having failed to establish to the contrary.
• beyond reasonable doubt that the tablets in the locked box under the dresser (exhibits 7, 8A, 8B and 8C) were given to the applicant by Ms Murphy. I am not satisfied on the balance of probabilities that the applicant intended to return them to Ms Murphy at any future time. I am fortified in this view by the method and place of storage utilised by the applicant, that some of the tablets were stored loose in the small flowered box (exhibit 7) belonging to the applicant and the bottles and tablets were intermingled with the applicant's other illicit drugs and paraphernalia, including a pipe that was used by the applicant to consume illicit drugs and that Ms Murphy did not know where the drugs were stored and was unable to access the locked box, in any event.

Further, Ms Murphy did not seemingly seek the return of such tablets insofar as she had thereafter proceeded to obtain further quantities to be dispensed to her by Ashfield Community Chemist in accordance with the prescription issued to her rather than obtain any from the applicant.

• The applicant was not authorised, pursuant to s 6(3) of the MDA, to be in possession of the dexamphetamine tablets found in the locked box.
• Having regard to the quantity of dexamphetamine located in the locked box, pursuant to s 11(a) of the MDA, the applicant is deemed to have those drugs in her possession with the intent to sell or supply them to another - the applicant having failed to establish to the contrary.