Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Drug offences - Declaration that a person is a 'drug trafficker' under s 32A(1)(b)(i) of the Misuse of Drugs Act - Where accused convicted of attempting to possess with intent to sell or supply MDMA by possessing a large quantity of tablets thought to be MDMA - Tablets did not in fact contain any prohibited drug - Whether the appellant has been convicted of an offence 'in respect of a prohibited drug in a quantity not less than the quantity specified in Schedule VII in relation to the prohibited drug' - Whether quantity refers to weight of drug in pure form or weight of admixture

Misuse of Drugs Act 1981 (WA), s 3, s 4, s 6, s 7, s 9, s 11, s 14, s 32A, s 33(1), sch V, sch VII

Poisons Act 1964 (WA), s 5, Appendix A cl 1, sch 8, sch 9

Poisons Standard 2009 (Cth), cl 1, Appendix A, Appendix B, sch 9

Therapeutic Goods Act 1989 (Cth), s 52D

Appellant : In Person (14 March 2012) & Mr S Vandongen SC (24 August 2012)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568

Bennett v Higgins [2005] WASCA 197

Braysich v The Queen [2009] WASCA 178; (2009) 260 ALR 719

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135

Donohoe v Director of Public Prosecutions (WA) [2011] WASCA 239

Dooling v The State of Western Australia [2012] WASCA 95

Federal Commissioner of Taxation v Scully [2000] HCA 6; (2000) 201 CLR 148

Fursman v The Queen (Unreported, WASCA, Library No 7414, 5 December 1988)

Heyes v The State of Western Australia [2008] WASCA 124

Kirby v The Queen [2003] WASCA 164

Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202

Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214

Momcilovic v The Queen [2011] HCA 34; (2011) 85 ALJR 957

Musarri v The Queen [2006] WASCA 92; (2006) 32 WAR 19

Palfrey v Macphail [2004] WASCA 257; (2004) 149 A Crim R 542

Paul v Collins Jnr [2003] WASCA 238

Pellew v The State of Western Australia [2011] WASCA 86

Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549

R v English (1993) 10 WAR 355

R v Mahasay [2002] WASCA 336; (2002) 135 A Crim R 232

R v R2 (1990) 19 NSWLR 513

R v Rowe (1992) 5 WAR 491

Reid v The State of Western Australia [2012] WASCA 23

Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1

Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45

The Director of Public Prosecutions (WA) v White [2010] WASCA 47

Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105

Zuccala v The State of Western Australia [2008] WASCA 129

1 McLURE P: I agree with Beech J that the appeal should be dismissed. I can shortly state my reasons for that conclusion, relying on his statement of the facts and other necessary background. It is sufficient for present purposes to note that the appellant was convicted of having attempted to commit an offence under s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act). What she thought was MDMA was in fact a lawful substance.

2 I accept that the principle of legality applies to the construction of s 32A of the Act. French CJ in Momcilovic v The Queen [2011] HCA 34; (2011) 85 ALJR 957 explained the principle in the following terms:

It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law [43].

3 An earlier formulation of the presumption suggested that any ambiguity in statutory language would prevent the displacement of the presumption. That approach is wrong, as evident in this court's approach to statutory construction in Pellew v The State of Western Australia [2011] WASCA 86 and The Director of Public Prosecutions (WA) v White [2010] WASCA 47. The ordinary rules of construction must be applied and, if constructional choices are open, the statute should be construed to avoid or minimise its encroachment upon rights and freedoms at common law. The presumption has been displaced in this case.

4 Counsel for the appellant before the primary judge did not attempt to formulate a construction said to be open on the statutory language in s 32A(1)(b)(i) of the Act. The submission was that the effect of s 32A(1)(b)(i) is that actual prohibited drugs had to be in the possession of the offender or, if that is not correct, actual drugs had to figure at some stage along the supply chain to the offender.

...

(b) a serious drug offence in respect of -

(i) a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug; ...

...

the court convicting the person of the serious drug offence ... referred to in paragraph (b) ... shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.

6 The expression 'serious drug offence' is defined in s 32A(3) to mean a crime under s 6(1), s 7(1), s 33(1)(a) or s 33(2)(a).

(1) A person who attempts to commit an offence (the principal offence) commits -

(a) if the principal offence is a crime, the crime; ...

...

and is liable on conviction to the same penalty to which a person who commits the principal offence is liable.

8 The appellant was convicted of having attempted to commit an offence under s 6(1)(a) of the Act. Section 6(1)(a) relevantly provides that a person who, with intent to sell or supply it to another, has in his possession a prohibited drug, commits a crime. It is arguable that the appellant is, by s 33(1)(a), deemed to have committed the crime under s 6(1)(a) of the Act. That is consistent with the penalty for an attempt being the same as for the completed crime. If that construction is correct, the appellant must fail on both her primary and alternative argument. However, it is unnecessary to determine that issue because the same result follows even if the appellant is not treated as having committed the principal offence.

9 The statutory expression directly in issue is 'a serious drug offence in respect of ... a prohibited drug in a quantity' not less than that specified. The words 'a prohibited drug in a quantity' has two aspects, both of which must be present in the facts of the serious drug offence of which the person has been convicted. The first aspect is 'a prohibited drug'. Potentially that could be present in the facts either as an element (which includes being a necessary part of an element), or alternatively just a circumstance, of a serious drug offence. The second aspect, being the quantity, can only be a circumstance of a serious drug offence.

10 Although it may not matter in the result, my view is that 'a prohibited drug' must be an element (or a necessary part of an element) of the serious drug offence the subject of the conviction. For example, a prohibited drug is a necessary part of an element of the crime of offering to sell or supply to another a prohibited drug contrary to s 6(1)(c) of the Act. On that basis, the expression 'a prohibited drug in a quantity' must be one part an element (prohibited drug), and one part a circumstance (quantity), of the serious drug offence of which the person has been convicted. However, there is nothing in the language or purpose of the Act that requires or justifies the statutory expression in issue to mean 'possession of a prohibited drug in a quantity'. These are my reasons for that conclusion.

11 Crimes under the Act are committed by a person who:

• with intent to sell or supply it to another, has in his possession a prohibited drug (s 6(1)(a));
• manufactures or prepares a prohibited drug (s 6(1)(b));
• sells or supplies, or offers to sell or supply, to another, a prohibited drug (s 6(1)(c));
• with intent to sell or supply a prohibited plant or any prohibited drug obtainable therefrom to another, has in his possession or cultivates the prohibited plant (s 7(1)(a));
• sells or supplies, or offers to sell or supply, a prohibited plant to another (s 7(1)(b));
• has in his possession a substance that contains a quantity of a category 1 item or a category 2 item that exceeds the quantity prescribed in relation to the item (s 14(1)). Category 1 and category 2 items are substances where there is a significant or reasonable likelihood, respectively, of their being used in connection with the manufacture of a prohibited drug (s 20);
• attempts to commit a crime (s 33(1)(a));
• conspires with another to commit a crime (s 33(2)(a)); and
• incites another to commit a crime (s 33(3)(a)).

12 Not all serious drug offences (that is, crimes within s 6(1), s 7(1), s 33(1)(a) or s 33(2)(a)) are in respect of a prohibited drug. The purpose and effect of the reference to a prohibited drug in the opening line of subpar (i) is to exclude any offence which is not in respect of a prohibited drug, being at least the offences confined to prohibited plants in s 7(1). It is unnecessary to decide whether an attempt to commit a crime under s 14 or s 33(3)(a) are within s 32A(1)(b)(i). That is a question for another day.

13 Moreover, not all the crimes in s 6(1), s 7(1) and s 33(1)(a) have possession of a prohibited drug as an element of the offence. Crimes in this category include the offence of offering to sell or supply a prohibited drug (s 6(1)(c)), preparing a prohibited drug (s 6(1)(b)), being in possession of a prohibited plant with intent to sell or supply a prohibited drug therefrom (s 7(1)(a)) and, most significantly, the offence of attempting to commit an offence under s 6(1)(a) of the Act.

14 The elements of the offence of attempt include (1) an intention to commit an offence and (2) the non-fulfilment of the intention: R v English (1993) 10 WAR 355. In order to be guilty of an attempt to commit an offence under s 6(1)(a), the only possible element missing from the completed offence is possession of the prohibited drug. The intention to sell or supply must be in existence at the time the attempt is made to obtain possession of the prohibited drugs.

15 The purpose and effect of the statutory expression 'a serious drug offence in respect of ... a prohibited drug' is to confine the scope of s 32A(1)(b)(i) to those offences in which a prohibited drug is involved in any way as an element of the crime including, but not confined to, offences in which possession of the prohibited drug is an element. An attempt to obtain possession of a prohibited drug in a quantity not less than the specified quantity satisfies that statutory criterion. The submission that the meaning of 'a prohibited drug' in s 32A(1)(b)(i) is a prohibited drug that is, or must have been, in the possession of the offender is unsustainable.

16 Moreover, in relation to a serious drug offence under s 33(1)(a), there is no justification in the statutory language or purpose of s 32A(1)(b)(i) to differentiate between explanations for the non-fulfilment of the intention to commit the relevant offence. It covers all explanations, whether it be because police intercepted the actual prohibited drug and replaced it with a lawful substance or because the supplier purporting to supply a prohibited drug in fact supplied a lawful substance or because the supplier simply failed to supply anything at all or otherwise.

18 After the appeal hearing on 14 March 2012, an issue arose in the course of preparation of the judgment that was not relied on by the appellant at first instance, when she was represented by senior counsel, or in the appeal, when she was not legally represented. The issue is whether a prohibited drug for the purpose of s 32A(1)(b)(i) of the Act includes not only the pure drug but also an admixture of it. As that raised a question of statutory construction having far reaching consequences, the Court, with the appellant's approval, requested the President of the Western Australian Bar Association to nominate an experienced barrister who would be prepared to act for the appellant on that issue on a pro bono basis. Mr S Vandongen SC represented the appellant on that basis at the second hearing which was conducted on 24 August 2012.

19 I agree with Beech J that the statutory text, context and purpose together with the legislative history and extrinsic material compel the conclusion that the expression 'prohibited drug' in s 32A(1)(b)(i), and s 9 and s 11, of the Act includes an admixture containing any proportion of the relevant drug. Thus, the relevant quantity for the purposes of those sections includes the quantity of any admixture. I agree with Beech J's reasons for that conclusion. However, because there is a difference of opinion, I propose to make some remarks confined to the text, context and structure of the legislative framework.

20 The legislative framework is the Act, the Poisons Act 1964 (WA) (PA) and the Poisons Standard 2009 (Cth) (SUSDP) made under s 52D(2)(b) of the Therapeutic Goods Act 1989 (Cth). The relevant provisions of the Act, PA and SUSDP have to be construed together as part of an overlapping legislative scheme: Trajkoski v Director of Public Prosecutions [2010] WASCA 119 [50].

21 The statutory expression directly in issue is 'a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII'. Schedule VII of the Act lists under the heading 'Prohibited drug', 39 drugs (including MDMA) and the amount for the purposes of drug trafficking (28 g for MDMA).

22 The central issue is the meaning of the expression 'prohibited drug'. To complicate the task, eight separate steps are involved. They are:

1. by s 3(1) of the Act, 'prohibited drug' means a drug to which the Act applies by virtue of s 4;
2. s 4(1) of the Act includes 'drugs of addiction';
3. by s 3(1) of the Act, drugs of addiction are drugs of addiction as defined by s 5 of the PA;
4. by s 5(1) PA, drug of addiction means any 'substance' [defined in s 5(1) PA to include substance, material, compound, preparation and admixture] included in Schedule 8 or 9;
5. Schedule 9 PA states 'All substances listed in Schedule 9 to the SUSDP ... ';
6. Schedule 9 PA is part of Appendix A to the PA (Appendix A). Clause 1 of Appendix A defines SUSDP and continues:

(2) If for the purposes of this Appendix it is necessary to interpret a Schedule to the SUSDP, the definitions and interpretation provisions in the SUSDP apply to the interpretation of that Schedule;

Unless the contrary intention appears a reference to a substance in a schedule or an appendix to this Standard includes:

(g) a preparation or admixture containing any proportion of the substance.

but does not include:

(h) - (k).

1. Schedule 9 SUSDP includes N,α-DIMETHYL-3,4-(METHYLENEDIOXY) PHENYLETHYLAMINE (MDMA).

23 Senior counsel for the appellant accepted that the Court of Criminal Appeal in Fursman v The Queen (Unreported, WASCA, Library No 7414, 5 December 1988) correctly decided that a prohibited drug included an admixture of the drug not only for the purpose of the offence under s 6(1)(a) of the Act but also for the purpose of s 11 of the Act which then, as now, deems a person to have in his possession a prohibited drug with intent to sell or supply if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V. The relevant quantity of the prohibited drug in that case was determined to be the quantity of the admixture. The reasoning applies equally to s 9 and s 32A(1)(b)(i) of the Act. However, Fursman was decided prior to amendments to the PA effected by the Poisons Amendment Act 1995 (WA) (the 1995 Amendment Act).

24 The submission put on behalf of the appellant was that cl 1(2)(g) of the SUSDP is in materially different terms to Appendix A of the PA, which was central to the construction in Fursman. It is contended that cl 1(2)(g) is intended to refer to a substance listed in an SUSDP Schedule that is itself a 'preparation' or an 'admixture'; that is, the definition in cl 1(2)(g) does not enlarge the meaning of the substances listed in the Schedules.

25 In the pre-1995 version of the PA, 'substance' had the same definition as in step 4, the relevant schedules of substances were in Appendix A and that Appendix A relevantly provided:

1. A substance specified in a schedule, unless the contrary intention appears, includes -

(d) a preparation or admixture containing any proportion thereof of the substance.

26 Thus the pre-1995 Appendix A referred to 'a substance specified in a schedule' in that appendix whereas cl 1(2) of the SUSDP states 'a reference to a substance in a schedule' to the SUSDP. The word 'specified' is removed from, and the expression 'a reference to' is added to, cl 1(2) of the SUSDP. The objectively determined intention and effect of both formulations is identical. Each drug listed in a SUSDP Schedule is a 'substance' as defined. That the drugs in the SUSDP Schedules are 'substances' is evident from the text of cl 1(2) and from the broader context, in particular s 5(1) PA (step 4) and Schedule 9 PA (step 5). The function of a statutory definition is to provide an aid in construing the statute. If the definition applies, the proper course is to read the words of the definition into the relevant provision and then construe the latter: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 [12].

27 Inserting the definition of substance into the SUSDP Schedule for the relevant substance, in this case MDMA in Schedule 9, the Schedule reads:

MDMA and a preparation or admixture containing any proportion of that drug.

28 The appellant also relies on the carve outs from the definition of substance in cl 1(2) of the SUSDP. After identifying what a reference to a substance includes, cl 1(2) excludes the matters specified in pars (h) - (k) inclusive. The exclusions are incapable of requiring or justifying the reading down of cl 1(2) to refer only to substances elsewhere than in a Schedule or Appendix to the SUSDP. On the contrary, the exclusions support the opposite construction.

29 The point can be made by reference to the exclusion in (h), which refers to 'a preparation or product included in Appendix A, or a substance

and the reason for its entry in Appendix B'. Appendix A to the SUSDP provides that it does not apply to a poison in specified products. Poison is defined in cl 1(1) to include any substance or preparation included in a Schedule to the SUSDP. The products in Appendix A are in effect admixtures which would otherwise be caught by the Schedules. That is also true of the substances excluded from the definition in pars (i) - (k). Appendix B states that, in relation to the substances listed therein in connection with specified uses, the decision had been taken not to list them anywhere in the Schedules. The exclusion is necessary because Appendix B would otherwise be caught by the opening words of cl 1(2), being 'a reference to a 'substance in ... an appendix' to the SUSDP.

30 As to the proper construction of cl 1(2) of Appendix A, that is as explained by Beech J. The word 'necessary' cannot mean that ambiguity or lack of clarity is required before regard can be had to the definition provision (cl 1) in the SUSDP. It is inconceivable and contrary to basic principles of statutory construction that schedules in an instrument forming part of an integrated statutory framework are intended to be construed without considering the interpretation provisions of the instrument governing the meaning of the schedules. In that sense, it is always necessary in the process of statutory construction to consider the meaning of the text by reference to, inter alia, the definitions of the terms used in the text.

31 The amendments to the PA made by the 1995 Amendment Act made no material change to the statutory scheme considered and ruled on in Fursman, which was correctly decided. The long standing Western Australian statutory scheme has parallels elsewhere: R v R2 (1990) 19 NSWLR 513. Further, the distribution of drugs in this State is almost always in the form of a preparation or admixture. There is no scope for the application of the 'golden rule' of construction (which was not relied on by the appellant).

33 The appellant was declared to be a drug trafficker by a District Court judge. The judge could only make that declaration if the appellant was convicted of 'a serious drug offence in respect of a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug'.

34 The evidence against the appellant was that she had in her possession over 2,000 tablets, weighing 573 g. She thought that they were MDMA tablets. The police also thought so. However, she was not charged with possession of MDMA tablets because when the tablets were analysed, it was revealed to the appellant and to the police that the tablets did not contain MDMA or any prohibited drug. So the police charged her with attempting to possess MDMA and she was convicted after a trial.

35 The Director of Public Prosecutions (DPP) then applied to the sentencing judge for the drug trafficker declaration. The appellant does not dispute that she was rightly convicted of attempting to possess the MDMA tablets. She acknowledges that the mere fact that the offence was impossible to commit was no defence: see s 4 of the Criminal Code (WA). But the appellant does dispute that she could be declared a drug trafficker because, although she concedes that she committed a 'serious drug offence', and that it was in respect of a 'prohibited drug' (MDMA), the MDMA was not in a quantity 'not less than the quantity specified in Schedule VII' (28 g). She says the quantity of MDMA was zero.

36 Although the appellant was convicted of other offences, the only one which is relevant is the offence which in the indictment read:

On 9 December 2009, at Peppermint Grove [the appellant] attempted to possess a prohibited drug, namely [MDMA] with intent to sell or supply it to another.

37 This conviction was recorded in the District Court on 18 March 2011.

The legislation relevant to a drug trafficker declaration

38 Section 32A(1)(b)(i) of the Misuse of Drugs Act 1981 (WA) reads:

If a person is convicted of -

...

(b) a serious drug offence in respect of -

(i) a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug;

...

the court convicting the person of the serious drug offence ... shall on the application of the Director of Public Prosecutions ... declare the person to be a drug trafficker.

39 'Serious drug offence' is defined to mean 'a crime under section 6(1), 7(1), 33(1)(a) or 33(2)(a)': s 32A(3).

40 Section 33(1) reads:

A person who attempts to commit an offence ... commits -

(a) if the principal offence is a crime, the crime;

...

and is liable on conviction to the same penalty to which a person who commits the principal offence is liable.

41 The principal offence the appellant attempted to commit was an offence against s 6(1)(a) which reads:

[A] person who -

(a) with intent to sell or supply it to another, has in his possession ... a prohibited drug commits a crime.

42 Several provisions of the Misuse of Drugs Act 1981 (WA) refer to the quantity of a prohibited drug.

(a) s 9(1), which is procedural and which specifies that if a person is charged before a court of summary jurisdiction with 'an offence under section 6(1) in respect of a quantity of prohibited drug referred to in Schedule III that is less than the quantity specified in that Schedule ... then ... the summary conviction penalty for the offence is that set out in section 34(2)(b)'. As a result, s 5 of the Criminal Code confers jurisdiction on courts of summary jurisdiction to try such a charge. Schedule III contains a list of prohibited drugs and one of them is MDMA. The amount specified in relation to MDMA is 4 g. Thus, if a quantity of MDMA in a person's possession is less than 4 g, the summary conviction penalty applies;

(b) s 11, which is procedural and which provides that, unless the contrary is proved, a person who has in his possession not less than the quantity of a prohibited drug specified in sch V, is deemed to have in his possession a prohibited drug with intent to sell or supply it to another. Schedule V lists MDMA and the amount specified is 2 g. Section 11 could not be availed of by the prosecutor in this case because there were no drugs in the accused person's possession. That was the ruling during the trial. It was a correct ruling because of the decision in Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202; and

(c) s 32A(1)(b)(i), which is the section conferring jurisdiction on the court to make a drug trafficker declaration. For jurisdiction to be conferred on the court it must be proven that the relevant quantity of the prohibited drug is not less than as specified in sch VII, which in the case of MDMA is 28 g.

44 The trial judge acknowledged that the effect of the declaration was 'harsh' but that 'Parliament intended that to be so' and that there was 'no reason in justice that those who have attempted to possess a prohibited drug but failed and were caught should escape the consequences visited on those who succeeded and were caught'. Her Honour then posed the issue as follows:

The issue then is whether in the unusual circumstances of this case where the pills were actually in your possession but were not drugs at all, the serious drug offence committed can be said to be in respect of a prohibited drug of a threshold quantity, given that there was no drug.

In the end, I have concluded that the statute, by a combination of s 33(1) and s 32A, has set up a legal fiction whereby the attempt is deemed to be the substantive offence, and the quantity then is the quantity of substance that you possessed, believing it to be a prohibited drug ... I consider s 33(1) has the effect that the quantity attempted to be possessed is deemed to be the quantity in fact possessed for the purpose of the drug trafficker declaration.

45 The appellant concedes that she committed a serious drug offence. She also concedes that the serious drug offence (the attempt) was in respect of a prohibited drug, namely MDMA because she attempted to possess MDMA. However, the appellant submits that s 32A(1)(b)(i) does not confer jurisdiction to make a declaration where the substance the subject of the attempt did not contain any prohibited drug.

46 The appellant submits that her situation is to be distinguished from circumstances where the substance the accused was attempting to possess was in fact MDMA weighing more than 28 g and the police substituted an inert substance for the prohibited drug. She submitted that the attempt would in those circumstances be provable in respect of a prohibited drug, weighing more than 28 g.

47 The respondent submitted that the drug trafficker declaration was correctly made because:

(a) for the purposes of s 32A of the Misuse of Drugs Act, s 33(1) deemed the appellant to have possession of 573 g of MDMA and therefore more than the required 28 g; or

(b) alternatively, the proper construction of s 32A (without reference to s 33(1)) authorised and required the court to make the declaration based on the facts of the case.

The respondent's reliance on s 33

48 Section 33(1) was in the Misuse of Drugs Act when passed in 1981. It then read:

A person who attempts or incites another to commit, or becomes an accessory after the fact to, an offence (in this subsection called 'the principal offence') commits -

(a) if the principal offence is an indictable offence, the indictable offence;

...

but is liable on conviction -

(c) to a fine not exceeding half of the fine; and, additionally or alternatively,

(d) to imprisonment for a term not exceeding half of the term,

to which a person who commits the principal offence is liable.

49 The section was amended in 2004 to replace the words 'an indictable offence' with the words 'a crime'. Also in 2004, s 33(1) was repealed and replaced with the version which is set out earlier in the reasons and which applied when the declaration was made against the appellant.

50 Neither the amendment nor the repeal and replacement altered the relevant form of the words, namely 'A person who attempts ... to commit ... an offence (in this subsection called 'the principal offence') commits, if the principal offence is [a crime], the [crime]'.

51 The explanatory memorandum which accompanied the 2004 amending Act stated that the amendment to s 33(1) would 'remove the technicality that allows an offender to escape a full sentence simply because he or she did not take possession of the actual drug in a drug dealing transaction because police intercepted the delivery and substituted the illicit drug with a harmless substance'. The Second Reading Speech was to similar effect. The Minister for Police and Emergency Services stated that the Act would 'correct a sentencing anomaly whereby principal offenders in drug trafficking matters are able to receive significantly discounted sentences'.

52 In relation to the first version of s 33(1), the State submitted to the High Court in Krakouer that the purpose of that section was so that s 11 of the Misuse of Drugs Act could apply. Section 11 is the reversal of onus provision referred to above.

53 This submission was rejected in Krakouer. The plurality said:

The respondent submitted that s 11 should be read as applying to cases of attempting or conspiring to possess drugs for sale or supply because s 33 made a person who attempted to commit or conspired to commit an offence under s 6(1) guilty not of an offence under s 33 but of the principal offence under s 6(1). It was submitted that if s 11 did not apply to cases of attempt and conspiracy, there was no point in s 33 making the person who attempted or conspired to commit the principal offence guilty of the principal offence rather than a separate ancillary offence. In this respect, the Misuse of Drugs Act differs from the Criminal Code (WA) where a person attempting to commit a principal offence is guilty not of the principal offence but of a separate offence of attempt (s 552) and a person conspiring to commit a principal offence is, likewise, guilty not of the principal offence but of a separate offence (s 558).

We do not accept that s 33 takes the form which it does in order to make s 11 apply to cases of attempt and conspiracy to commit an offence under s 6(1) [17] - [18].

54 The argument in that case having been rejected, the respondent now advances a new argument (in support of the sentencing judge's reasons) that the purpose of s 33(1) is not to bring s 11 into operation, but to create a fiction; that a person who attempted to commit a principal offence is 'deemed' to have committed the principal offence for the purposes of s 32A. That is, that if the attempt was to commit a serious drug offence with respect to a prohibited drug, then the offender commits the offence he or she attempted to commit and is deemed to have the quantity of drug the offender attempted to possess, even if the substance the offender attempted to possess contained no prohibited drug.

55 The respondent submitted that the deeming of the attempt offence to be the substantive offence (by reason of s 33(1)) has the effect of deeming the substance to be the prohibited drug 'it was believed to be' (citing in support Braysich v The Queen [2009] WASCA 178; (2009) 260 ALR 719 [46] - [51]). In consequence, the respondent submits that it is 'wholly consistent' with this fiction that the pills in this case 'should be taken to be a prohibited drug, notwithstanding the fact that they were not'.

56 On a plain reading of the section, s 33 is exclusively concerned with specifying the penalty which is to apply when a person is convicted of an attempt. The offence of attempting to commit a crime is deemed by s 33 for penalty purposes, and only for penalty purposes, to be the crime itself.

57 A drug trafficker declaration under s 32A(1)(b)(i) is not part of the penalty, ie the sentence for the crime: Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 [55].

58 The offence of attempting to commit an offence does not transmogrify upon conviction into a conviction for possession of the prohibited drug with intent to sell or supply. This is evident from the definition of 'serious drug offence' in s 32A(3) which defines the phrase as meaning a crime under various sections including either s 6(1) or s 33(1)(a). Thus, there is a separate crime of attempt which would not be the case if upon conviction for attempt, the conviction converted into the principal offence which the person attempted to commit.

59 The appellant in this case was convicted of the attempt offence, not an offence of possession with intent to sell or supply under s 6. The certificate of conviction pursuant to r 49 of the Criminal Procedure Rules 2005 (WA) says so.

60 Finally, even if s 33 had the effect contended for by the respondent, namely that the person must 'thereby be deemed to have been convicted of possessing a prohibited drug with intent to sell or supply', the elements of the crime did not include any particular quantity of the prohibited drug. See Zuccala v The State of Western Australia [2008] WASCA 129 [61] (Buss JA, Steytler P & Miller JA agreeing). Therefore the deeming effect of s 33 contended for by the respondent would not extend to deeming a convicted person to have had in his or her possession any particular quantity of prohibited drug.

61 It is then necessary to turn to the respondent's alternative argument which is that, on a proper construction of s 32A, the jurisdictional facts referred to in the section had been established. The history of s 32A is referred to in Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549 [45] - [58]. That passage reveals how s 32A forms part of a legislative scheme which is draconian and at times unjust in its application. A person who commits one serious drug offence may be declared to be a drug trafficker and therefore have all his or her property confiscated, even if all the person's property was lawfully acquired, that is, not acquired as a result of drug dealing.

62 The respondent contends that on a proper construction of s 32A the 'serious drug offence' 'in respect of a prohibited drug' may be committed even though the substance the offender attempted to possess is not MDMA.

63 The respondent submits that there is nothing in s 32A which imports any suggestion that it is limited, in the case of attempts or offers, to situations where the subject of the attempt or offer is in fact found to be a prohibited drug listed in sch VII. The respondent submits that this would 'artificially' impose a distinction that neither arises from the wording nor captures a material difference in culpability. The respondent refers by way of example to an offence of offering to sell or supply a prohibited drug contrary to s 6(1)(c). The offer to sell or supply is complete upon the offer being made regardless of whether there was in fact any prohibited drug ready to be sold or supplied. The respondent's submission is that the offer will be 'in respect of' a prohibited drug even if there is no drug in existence. The respondent contends that if the offer was to sell more than 28 g of MDMA, then the court would have jurisdiction to, and would indeed be obliged upon application by the DPP to declare the offender a drug trafficker.

64 The respondent also refers to s 9 of the Misuse of Drugs Act and to the use in that section of some phrases identical or similar to phrases in s 32A, and submits that if the words 'in respect of' mean in respect of an actual provable quantity of a prohibited drug, then the summary conviction penalty provided for in s 9 of the Misuse of Drugs Act 'could never apply to an attempt in which the substance was not in fact a prohibited drug'.

65 The respondent's reference to the example of an offence involving an offer and the reference to s 9, lead the respondent to conclude that the 'clear intention of the legislature' is that the offences 'are dealt with by reference to the particular prohibited drug around which the charge is framed regardless of whether that prohibited drug ever existed' (original emphasis).

66 These submissions, based on analogy and by reference to other offences and to s 9, must be rejected. The correct construction of s 32A cannot be ignored simply because it yields what the respondent considers to be an undesirable consequence for persons who wish to be tried summarily, a result which is contrary to current practice, or a result which the respondent considers might see some offenders escape a drug trafficker declaration. The submission is, in effect, an appeal by the respondent that s 32A(1)(b)(i) should be construed to achieve an outcome which the respondent contends satisfies Parliament's intention and purpose to expose as many offenders as possible to the drug trafficker provisions. More is said about this submission at the end of these reasons.

67 The words 'in respect of' do not relate to prohibited drugs 'around which the charge is framed'. Whatever serious drug offence is committed, s 32A(1)(b)(i) requires proof of the existence of a quantity of MDMA of not less than 28 g for the following reasons.

68 The words 'in respect of' link the phrase 'serious drug offence' and the phrase 'prohibited drug' in s 32A(1)(b)(i). These phrases were necessary because if the words 'in respect of' and 'a prohibited drug' were not included, then s 32A(1)(b)(i) would at times be nonsensical because 'a serious drug offence' by definition, can relate to plants and sch VII is concerned with quantities of drugs, not numbers of plants. Thus, s 32A(1)(b)(i) is concerned with a 'serious drug offence with respect to a prohibited drug' and s 32A(1)(b)(ii) is concerned with 'a serious drug offence in respect of prohibited plants'.

69 Two 'jurisdictional facts' have to be proved before the court has jurisdiction under s 32A(1)(b)(i) to make a drug trafficker declaration: see Zuccala [61] - [62] and Trajkoski [71], [150]. As to the term 'jurisdictional facts' see Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 [28]. If the two facts cannot be proven, then the court has no jurisdiction to make the declaration. The two facts to be proved are:

(a) that the person has committed a serious drug offence with respect to a prohibited drug; and

(b) that the prohibited drug is in 'a quantity which is not less than the quantity specified in sch VII in relation to the prohibited drug'.

70 These two jurisdictional facts will usually be proved by two documents. The first fact will be proved by the production of a properly drawn certificate under r 49 of the Criminal Procedure Rules. It will prove that the offender has been convicted of a serious drug offence with respect to a prohibited drug. A properly drawn certificate will not refer to any particular quantity of the prohibited drug: Zuccala [61]. The certificate in this case was properly drawn.

71 The second fact will be proved by the production of a certificate under s 38 of the Misuse of Drugs Act. This certificate of an approved analyst will state the result of the analysis and set out the quantity or mass of the prohibited drug, which, if the second fact is to be proven, would have to be, in the case of MDMA, a quantity or mass exceeding 28 g.

72 In oral submissions, the respondent submitted that the appellant was in 'logic' submitting that if no provable drug existed, then there would be no conviction. That is not correct. A person may be convicted of attempting to commit an offence, even if it is impossible to do so: see s 4 of the Criminal Code. However, s 4 has no application to s 32A. The s 32A proceedings have nothing to do with the criminal proceedings resulting in the conviction for the serious drug charge. An application under s 32A is brought by the Director of Public Prosecutions. They are civil proceedings: Donohoe v Director of Public Prosecutions (WA) [2011] WASCA 239, at least for the purpose of s 79C of the Evidence Act 1906 (WA).

73 During oral submissions the appellant was asked whether she was contending that if police put an inert substance in place of actual prohibited drugs which an offender was attempting to possess, then the necessary jurisdictional fact could not be proven. The appellant submitted that in those circumstances, there would be provably 'actual drugs which they intended to possess'. It was then that she submitted, correctly, that a serious drug offence would have been committed with respect to a prohibited drug and the quantity the offender attempted to possess would be provable upon analysis by chemists.

74 In the present case, the substance the appellant attempted to possess contained no prohibited drug. As a result, the respondent did not prove, and could not prove, the second jurisdictional fact, namely that the prohibited drug was in a quantity exceeding 28 g.

Is the relevant quantity of a drug the weight of an admixture or the weight of the pure drug?

75 Finally, even if the above conclusions were wrong, there remains a question as to why the substance weighing 573 g should be regarded as the relevant quantity of prohibited drug. The appellant possessed 573 g of a substance which contained no prohibited drug, yet the respondent contends that this should be treated as the quantity of the prohibited drug in respect of the offence.

76 Drugs like MDMA are rarely encountered in pure form in drug cases. There is usually a mixture of cutting agents, binders and colouring agents to facilitate the MDMA being made into tablet form. The assumption lying behind the respondent's submission is that the appellant must have intended that the tablets contained some unspecified quantity of MDMA and therefore the admixture of materials which included MDMA should be treated as the relevant quantity for the purposes of s 32A(1)(b)(i). As the respondent puts it, the quantity of the prohibited drug which count 3 was 'in respect of' was 573 g.

77 That assumes that the attempt was to gain either 573 g of pure MDMA or 573 g of a substance which contained some component of MDMA and that the whole quantity should be treated as MDMA. The question then is whether it is correct to assert that the weight of an admixture of non-prohibited drug materials and a prohibited drug, becomes the weight of the prohibited drug. It is not correct for the following reasons.

78 Section 6(1) of the Misuse of Drugs Act refers to a 'prohibited drug'. A 'prohibited drug' means a drug to which the Misuse of Drugs Act applies by virtue of s 4 of that Act (see s 3(1) of that Act). Section 4(1) reads:

[T]he drugs to which this Act applies are -

(a) drugs of addiction.

79 Section 3(1) defines 'drug of addiction' as meaning 'drug of addiction as defined by s 5 of the Poisons Act 1964'.

80 Section 5(1) of the Poisons Act 1964 (WA) reads:

drug of addiction means any substance included in Schedule 8 or 9.

81 The Misuse of Drugs Act does not state that other definitions or provisions of the Poisons Act apply. However, because the word 'substance' appears in the definition of 'drug of addiction', it is arguable that it is permissible to look at the definition of 'substance' in s 5(1) of the Poisons Act. Assuming that it does apply, that section defines 'substance' as including 'admixture'. The definition of 'drug of addiction' can then be modified to read 'means any [admixture] included in sch 8 or 9' of the Poisons Act. Schedule 9 is the relevant schedule in this case.

82 'Schedule' is defined in s 5(1) of the Poisons Act to mean 'a Schedule in Appendix A' of the Poisons Act. Appendix A contains sch 9. However, there are no admixtures listed in sch 9. The list (as will be seen below) is a list of particular drugs. So the reference to 'admixture' in s 5(1) of the Poisons Act has no work to do in relation to sch 9. If there had been in sch 9 an item like item 3 in sch 1 to the Misuse of Drugs Act which reads 'any ... admixture ... or other substance containing not less than ... (b) 0.1% of ... ecgonine', then sch 9 would have contained an admixture and the definition of 'drug of addiction' would refer to that admixture.

83 Schedule 9 of the Poisons Act at the time of the offence referred to '[a]ll substances listed in sch 9 to the SUSDP'. One of the substances listed in sch 9 to the SUSDP was MDMA.

84 Before sch 9 of the Poisons Act there appeared par 1(1) of Appendix A which reads:

SUSDP means the current Poisons Standard as defined in section 52A of the Therapeutic Goods Act 1989 of the Commonwealth.

(2) If for the purposes of this Appendix it is necessary to interpret a Schedule to the SUSDP, the definitions and interpretation provisions in the SUSDP apply to the interpretation of that Schedule.

86 It is to be observed that the 'definition and interpretation provisions in the SUSDP' did not always apply. They only applied if it was 'necessary' to 'interpret' a schedule to the SUSDP. It would be 'necessary' only where there was some ambiguity or lack of clarity in a schedule to the SUSDP. If Parliament had wished to simply adopt the whole of the SUSDP then it could have done so. However, it chose to apply it only if necessary.

Unless the contrary intention appears a reference to a substance in a schedule or an appendix to this Standard includes:

(a) that substance prepared from natural sources or artificially; and

(b) where the substance is a plant (other than a plant included in Schedule 8 or 9), that plant or any part of that plant when packed or prepared for therapeutic use; and

(c) every salt, active principle or derivative of the substance, including esters and ethers, and every salt of such an active principle or derivative; and

(d) every alkaloid of the substance and every salt of such an alkaloid; and

(e) every stereoisomer of the substance and every salt of such a stereoisomer; and

(f) every recombinant form of the substance; and

(g) a preparation or admixture containing any proportion of the substance,

but does not include:

(h) a preparation or product included in Appendix A, or a substance and the reason for its entry in Appendix B; or

(i) a substance included in Appendix G at a concentration not exceeding the concentration specified in column 2 of that Appendix in respect of that substance; or

(j) any other substance included in Schedules 1 to 6, at a concentration not exceeding 10 mg per litre or 10 mg per kilogram, unless that substance is also included in Schedule 7 or 8; or

(k) any substance present as an impurity in a pesticide, at a concentration at or below the maximum content for that substance, specified for the pesticide in the Standards for Active Constituents, as published by the Australian Pesticides and Veterinary Medicines Authority.

88 The respondent pointed to cl 1(2)(g) and submitted that it provided that MDMA is 'a substance in a schedule' and therefore the reference in sch 9 includes a reference to an admixture containing any proportion of the substance. However, the appellant rejected that construction. The appellant submitted that cl 1(2) is to be construed and read as meaning that where there is a reference in the SUSDP (elsewhere than in a schedule or appendix to the SUSDP) to a substance in a schedule or appendix, then cl 1(2) operates. That construction contended for the appellant is to be preferred and is correct. This is because if cl 1(2) were read as meaning a reference to a substance in a schedule or appendix rather than elsewhere in the SUSDP, the result would be absurd. For example, it would provide that a reference to a substance in a schedule (eg sch 9) would not include a substance being the substances referred to in subpars (h), (i), (j) and (k) (such as the substances in schs 1 - 6). There was no reason why the provision would have been drafted to say that the reference to a substance in sch 9 does not include a reference to a substance in other schedules or appendices. If read as the appellant contends, cl 1(2) would operate sensibly as in the following example. Clause 41(3) of the Poisons Standard reads:

(3) A person must not possess or use any of the following sch 7 poisons unless he or she is authorised to do so by the appropriate authority:

89 Cyanide is included in sch 7. Therefore cl 41(3) contains a 'reference to a substance in a schedule'. Clause 1(2)(g) then requires the 'reference' to the substance in sch 7 in cl 41(3) to include any admixture containing any proportion of the substance (ie cyanide).

90 Alternatively, if cl 1(2) is to be construed as referring directly to substances within a schedule or appendix, then the question has to be asked whether it is 'necessary' to 'interpret' the reference to MDMA in the schedule to the SUSDP.

91 On this construction, what 'substances' are listed in sch 9 to the SUSDP? One substance is MDMA. There is no ambiguity or lack of clarity in relation to the term MDMA which makes it 'necessary' to refer to the 'definitions and interpretation provisions' of the SUSDP. Counsel for the respondent dealt with this submission by simply asserting that despite the language of par 1(2) of Appendix A of the Poisons Act, the 'definitions and interpretation provisions' in the SUSDP always applied and he could think of no circumstances where they would not apply.

92 This reasoning does not prevent a person from being convicted of possession of MDMA even if the drug is mixed with some other substance which is not a prohibited drug. In other words, the fact that there is an admixture of a prohibited drug and inert material affords no defence. A person in possession of 500 g of tablets which contain 30 g of MDMA will have possession of 30 g of MDMA notwithstanding the admixture. That is not because of the two statutory references to 'admixture' referred to above (ie in the Poisons Act definition section and in cl 1(2)(g) of the SUSMP). It is just because there is MDMA in the admixed substance.

93 There was no basis for the respondent contending that for the purposes of s 32A of the Misuse of Drugs Act the 573 g of tablets consisted of 573 g of MDMA. The weight of MDMA was zero.

94 The sentencing judge erred in concluding that s 33(1) has the effect that the quantity of drug that the appellant attempted to possess 'is deemed to be the quantity in fact possessed for the purpose of the drug trafficker declaration'.

95 It was for the respondent to prove that the quantity of the prohibited drug was not less than the quantity specified in sch VII (ie 28 g). That was not proved, and could not be proved, in this case.

96 The reasoning set out above is based on the construction of the legislation uninfluenced by a reference to any case law. There are a number of Full Court or Court of Appeal decisions in the last decade which assert as a proposition that the quantity of a prohibited drug is the total weight of any admixture which contains any proportion of a prohibited drug: see R v Mahasay [2002] WASCA 336; (2002) 135 A Crim R 232 [8] - [9]; Kirby v The Queen [2003] WASCA 164 [137]; Musarri v The Queen [2006] WASCA 92; (2006) 32 WAR 19 [137].

97 All of these cases cite the decision of the Full Court of the Supreme Court of Western Australia in Fursman v The Queen (Unreported, WASCA, Library No 7414, 5 December 1988) as authority for the proposition. All three decisions are decisions which postdate amendments made to the legislation in 1995, which removed the provision which the court relied on in Fursman. In Fursman, Brinsden J stated:

By s 5 of [the Poisons Act], a drug of addiction is said to mean any substance specified in the 8th Schedule or added to that schedule by order in council. The 8th Schedule forms part of Appendix A, there being some significant introductory words to that appendix which state that a substance specified in the schedule, unless the contrary intention appears, includes, inter alia, a preparation or admixture containing any proportion thereof of the substance.

98 About seven years after Fursman, the Poisons Amendment Act 1995 (WA) was passed. This Act replaced Appendix A with a new version of Appendix A. It did not have the introductory words referred to by Brinsden J in support of the proposition.

99 This change was not noticed in the three cases referred to above, where Fursman was still cited as authority for the proposition. The proposition cannot now be sustained by a mere reference to the Fursman decision and so the cases of Mahasay, Kirby and Musarri do not contradict the construction of the present legislation set out above. Finally, it is necessary to mention Paul v Collins Jnr [2003] WASCA 238 where Johnson J traced through the relevant provisions and the legislation current then and placed significance on cl 1(2)(f) of the SUSDP (now cl 1(2)(g) of the SUSMP). The legislation was materially the same as the legislation which applies in this case.

100 The case law does not therefore alter the conclusions reached above in [75] to [95].

101 Finally it is necessary to deal in a little more detail with the submission by the respondent that the construction of the legislation which is set out above is against the intention and purpose of Parliament revealed in the Misuse of Drugs Act and s 32A in particular.

102 The construction which is set out above, is a conclusion about what Parliament intended, ascertained from the plain meaning of the words. Normally, if the meaning of the words used in an enactment is clear, there will be no difficulty because the enactment will be taken to have meant what the legislation provides for. However, it is sometimes appropriate to depart from the literal meaning of an enactment. It will be appropriate where it is apparent that to give effect to the literal meaning of an enactment would be to frustrate the intention of Parliament: Mills v Meeking [1990] HCA 6; [1990] HCA 6; (1990) 169 CLR 214 and Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 304, are examples of cases where the High Court held that the literal operation of a statute was not its intended operation. The facts upon which a statute operates may provide an indication that its literal meaning will give rise to absurd, capricious or unjust consequences. If that is so, then it supports a conclusion that Parliament did not intend the literal meaning to prevail. Departure from the literal meaning will also be permissible in more extended circumstances, such as any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions: Cooper Brookes (321) (Mason & Wilson JJ). In those circumstances, a court is entitled to remedy the situation by a strained construction of the words used, by the addition of words or by the omission of words where it is clear that the intention of Parliament will be thwarted by the application of the literal meaning: Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1, 22.

103 At a general level, the policy of Parliament revealed by the Misuse of Drugs Act reveals a policy to criminalise, inter alia, possession and dealing in drugs. The Act also reveals a policy to treat drug dealing more seriously. It includes reversal of onus provisions and the drastic provision contained in s 32A which allows a drug dealer to be declared a drug trafficker with the consequence that the person will then lose all their property.

104 However, it is the construction contended for by the respondent which gives rise to a 'capricious' result (see Cooper Brookes (321)). The following example illustrates the point. If a person has more than 28 g of MDMA in their possession, then they may be declared a drug trafficker if they are also convicted of a serious drug offence. Assume that a person acquires 27 g of pure MDMA with the intention of bulking it up and

selling it and that person is apprehended and then charged with possession of the drug with intent to sell or supply. Upon conviction, that person could not be declared a drug trafficker because the amount of the drug would not exceed 28 g. However, if the police had arrived the next day and by then the MDMA had been mixed with a cutting agent taking its weight above 28 g, then upon conviction that person could be declared a drug trafficker.

105 A much less capricious result follows from the construction put on the legislation which appears above and for which the appellant contends. Upon that construction, it will not matter whether the drug has been bulked up or not. The question about whether the reversal of onus provision applies or whether the person can be declared a drug trafficker will be determined by the actual quantity of the drug involved.

106 Therefore, my reasoning as set out above stands. There was no quantity of MDMA and therefore the trial judge did not have jurisdiction to make the drug trafficker declaration.

107 The appeal should be upheld. The drug trafficker declaration should be set aside.

108 This appeal raises questions of construction of the drug trafficker provisions of the Misuse of Drugs Act 1981 (WA).

109 On 18 March 2011, the appellant was sentenced to terms of imprisonment in respect of three drug offences. She was convicted of those offences after a jury trial. In the sentencing hearing, the Director of Public Prosecutions applied to the primary judge for a declaration under s 32A of the Misuse of Drugs Act that the appellant was a drug trafficker.

110 Only count 3 is relevant to this appeal. Count 3 alleged that the appellant attempted to possess a prohibited drug, namely 3, 4 - methylenedioxy - N, alpha - dimethylphenylethylamine (MDMA or ecstasy) with intent to sell or supply.

111 The primary judge made detailed findings of fact in the course of her sentencing and for the purpose of the application for a drug trafficker declaration. Her Honour found (ts 591, 607 - 608) that:

(a) the appellant was in possession of 573 g of pills thought to be ecstasy, but in fact containing caffeine and paracetamol;

(b) in possessing those pills she attempted to possess ecstasy; and

(c) she intended to sell or supply those pills to others.

112 Counsel for the appellant contended before the primary judge that s 32A was not engaged because the circumstances of the appellant's offence did not involve any quantity of any prohibited drug, in that there never was any prohibited drug involved.

113 The primary judge rejected that argument and made the declaration sought. The appellant appeals against the making of that declaration.

114 It is convenient to set out the relevant legislative provisions before explaining the appellant's contentions.

115 Section 32A of the Misuse of Drugs Act requires the court in certain circumstances to declare a convicted person to be a drug trafficker. Section 32A provides as follows:

(a) a serious drug offence and has, during the period of 10 years ending on the day, or the first of the days, as the case requires, on which the serious drug offence was committed, been convicted of 2 or more -

(i) serious drug offences; or

(ii) external serious drug offences; or

(iii) offences, one or more of which are serious drug offences and one or more of which are external serious drug offences;

(i) a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug; or

(ii) prohibited plants in a number which is not less than the number specified in Schedule VIII in relation to the particular species or genus to which those prohibited plants belong,

the court convicting the person of the serious drug offence first referred to in paragraph (a), or the serious drug offence referred to in paragraph (b), as the case requires, shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.

(2) An application for a declaration under subsection (1) may be made at the time of the conviction giving rise to that application or at any time within 6 months from the day of that conviction, and more than one such application may be made in respect of that conviction.

(3) In this section -

external serious drug offence means -

(a) offence against a law of the Commonwealth, of another State, or of a Territory, which offence is prescribed to correspond to a crime under section 6(1), 7(1), 33(1)(a) or 33(2)(a); or

(b) offence against -

(i) the repealed section 233B of the Customs Act 1901 of the Commonwealth; or

(ii) a law of the Commonwealth, which offence is prescribed to correspond to an offence against that repealed section;

serious drug offence means a crime under section 6(1), 7(1), 33(1)(a) or 33(2)(a).

116 Schedule VII sets out a quantity, usually in grams, for each prohibited drug listed in the Schedule. For MDMA the quantity is 28g.

117 The appellant was convicted of an offence of attempting to possess with intent to sell or supply. That is an offence by or under s 33(1) of the Misuse of Drugs Act. Section 33(1) provides as follows:

A person who attempts to commit an offence (the principal offence) commits -

(a) if the principal offence is a crime, the crime; or

(b) if the principal offence is a simple offence, the simple offence,

and is liable on conviction to the same penalty to which a person who commits the principal offence is liable.

118 Section 6(1) relevantly provides:

Subject to subsection (3), a person who -

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

(b) manufactures or prepares; or

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

a prohibited drug commits a crime.

119 After the court had reserved its decision, a member of the court raised a question on which further submissions were invited from the parties. The question was whether the quantities of drugs specified in the schedules of the Misuse of Drugs Act, in particular sch VII, refer to the weight of the pure form of the specified drug, or to the weight of the admixture that contains the relevant drug. This question had not been raised by the appellant in her submissions before us, or by her senior counsel before the primary judge.

120 At the further hearing before us, senior counsel (who had not appeared before the primary judge) appeared pro bono for the appellant to advance submissions in relation to this point of statutory construction. The court records its appreciation of counsel's preparedness to assist the appellant and the court in this way.

121 I propose to deal first with the appellant's contentions made before the primary judge and before us at the first hearing of the appeal. After that I will deal with the additional point the subject of the second hearing before us.

The appellant's submissions on why s 32A was not engaged

122 Initially the appellant was not legally represented in the appeal. I have also considered the oral and written submissions made by senior counsel on her behalf before the primary judge.

123 The appellant points to the consequences of the making of an order under s 32A. By s 8 of the Criminal Property Confiscation Act 2000 (WA) (CPCA), all the property owned or effectively controlled by a person declared to be a drug trafficker is confiscated, together with any property that person gave away at any time before the declaration was made. The appellant submits that those 'draconian' consequences require a strict construction.

124 The appellant relies on three principles of statutory construction set out by Le Miere J in Palfrey v Macphail [2004] WASCA 257; (2004) 149 A Crim R 542 [33] - [36]:

(a) when interpreting penal statutes, including provisions dealing with confiscation of property, the ordinary rules of construction must be applied. If, after that, the language remains doubtful or ambiguous, the ambiguity or doubt ought be resolved in favour of the subject;

(b) there is a presumption that legislation does not interfere with vested proprietary interests; and

(c) when competing interpretations are open, the court should have regard to the consequences of the competing interpretations.

125 The learned primary judge stated these principles (ts 609). The respondent accepted that these principles should be taken into account in the construction of s 32A.

126 I agree with McLure P [3] that the first of these principles applies only when, after applying the ordinary rules of construction, constructional choices are open.

127 The appellant submits that s 32A(1)(b) is ambiguous in its operation in circumstances where there is an attempt to possess a prohibited drug by possession of a substance that was thought to be, but was not, a prohibited drug, and where no prohibited drug was involved in the offence generally. The appellant distinguishes that category of case from the position where there was an actual prohibited drug which the offender attempted to possess, but instead possessed something else (for example, in the intercepted drug scenario, where the police substitute an innocuous substance for the actual drugs).

128 Further, the appellant points to s 11(a) of the Misuse of Drugs Act in support of her construction of s 32A. Section 11(a) provides that for the purposes of s 6(1)(a), unless the contrary is proved, a person is presumed to have a prohibited drug in his possession with intent to sell or supply if he has in his possession a quantity of a prohibited drug which is not less than the quantity specified in sch V in relation to the prohibited drug. The appellant points to the correspondence of statutory language of the words 'a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug' with the language of s 32A(1)(b). Section 11(a) has no application to an attempt offence under s 33(1). The appellant submits that, correspondingly, s 32A(1)(b) should be found not to apply to an attempt offence, at least in the circumstances of this case.

129 The appellant submits that because the substance possessed by her was not a prohibited drug, and no prohibited drug was ever involved, she was not convicted of a serious drug offence that was, in the language of s 32A(1)(b)(i), 'in respect of a prohibited drug in a quantity ... not less than the quantity specified in Schedule VII in relation to the prohibited drug'. She submits that cases involving 'faux' or 'fake' drugs are to be distinguished from those involving 'actual' prohibited drugs. Consequently, the appellant submits, the factual foundation for a drug trafficker declaration was not established.

130 These submissions involve construing s 32A(1)(b) to mean that an attempt offence in which no actual prohibited drugs were involved cannot engage par (b) of s 32A(1). I do not accept that construction. The next section of these reasons is taken up with explaining why that is so.

The proper construction of s 32A(1)(b)

131 This appeal involves the proper construction of s 32A(1)(b). Of course, the section is not to be construed in isolation, but in the context of the Act as a whole: Zuccala v The State of Western Australia [2008] WASCA 129 [49].

132 Further, s 32A of the Misuse of Drugs Act and s 8 of the CPCA (and related provisions) comprise an overlapping legislative scheme and should be construed accordingly: Donohoe v Director of Public Prosecutions (WA) [2011] WASCA 239 [85].

133 If the conditions specified in s 32A(1)(a) or s 32A(1)(b) are satisfied, the court must make the declaration. The court does not have a discretion: R v Rowe (1992) 5 WAR 491; Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 [36]; Donohoe [80].

134 'Serious drug offence' is defined in the Misuse of Drugs Act to mean a crime under s 6(1), s 7(1), s 33(1)(a) and s 33(2)(a). It is not an element of a crime under any of those sections that there is any particular quantity of drugs involved. Consequently, proof of conviction of any of those offences does not establish that the offence was in respect of any particular quantity of the relevant drug: Zuccala [53], [61]; Trajkoski [71], [150]. In some cases, the facts and circumstances of the offence will mean that the offence is not in respect of any particular quantity. On an application under s 32A(1)(b)(i), the court must make findings of fact whether the serious drug offence (of which the respondent has been convicted) is 'in respect of a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug': Zuccala [55]. That is what the primary judge did in this case.

135 It can be seen that s 32A(1) creates two alternative paths to the making of a drug trafficker declaration. The first (par (a)) involves a person who has committed three drug offences of a certain character within the preceding 10 years. The second (par (b)) is in relation to drug offences in respect of a prohibited drug in a particular quantity (or prohibited plants in a particular number). Under par (a) of s 32A(1), the quantity of the prohibited drug or plant involved in the offences is irrelevant. The scheme of s 32A(1) was analysed in detail by Buss JA (Steytler P and Miller JA agreeing) in Zuccala [51] - [58].

136 The purpose and object of s 32A(1)(b) was explained by Buss JA in Zuccala in these terms:

The purpose or object underlying s 32A(1)(b) is apparent from an examination of that provision in the context of s 8 of the Criminal Property Confiscation Act. Section 8 operates to confiscate a person's property upon a drug trafficker declaration being made in relation to him or her under s 32A. The legislative scheme seeks to deter persons from repeatedly engaging in the sale or supply of certain prohibited drugs or plants and from engaging in the sale or supply of significant amounts of certain prohibited drugs or plants. The Parliament has decided to impose a severe deterrent by automatically confiscating a person's assets upon a drug trafficking declaration being made, irrespective of whether all or any of those assets were acquired from the proceeds of the sale or supply of prohibited drugs or plants. The quantitative thresholds specified in s 32A(1)(b), read with Schs VII and VIII of the Act, fix the quantities of drugs or plants in respect of which a person will be presumed to be a drug trafficker of sufficient seriousness to justify the confiscation of his or her assets pursuant to s 8 of the Criminal Property Confiscation Act [63].

137 Section 32A(1)(b) is bifurcated, to reflect the different subject matter of offences under s 6(1) and s 7(1) respectively, and the consequent need to specify different minimum quantities. Paragraph (i) of s 32A(1)(b) relates to offences in respect of prohibited drugs, namely offences under s 6(1) and attempts and conspiracies to commit such offences. Paragraph (ii) relates to offences in respect of prohibited plants, namely offences under s 7(1) and attempts and conspiracies to commit such offences.

138 In a loose sense, the legislation can be seen to identify three tiers of people involved with drugs: drug users, drug dealers and drug traffickers.

139 The distinction between users and dealers is reflected in the structure of s 6. Section 6(2) creates the simple offence of use or possession, and s 6(1) the more serious offences - crimes - of possession with intent to sell or supply, manufacture, and selling or supplying: see Heyes v The State of Western Australia [2008] WASCA 124 [36]. The same is true of s 7.

140 The distinction between drug dealers and drug traffickers is reflected in the contrast between sch V and sch VI, on the one hand, and sch VII and sch VIII on the other. As Buss JA observed in Zuccala [59], the quantities of prohibited drugs in sch VII for the purposes of the drug trafficker provision of s 32A(1)(b) are significantly greater than the quantities in sch V for the purposes of the presumption of intent to sell or supply in s 11. The same is true of the comparison of the number of plants in sch VIII with the number in sch VI.

141 It is the scale of a drug offence in this third tier that makes a single offence sufficient to engage s 32A(1)(b) to sustain a drug trafficker declaration, with the confiscation consequences produced by s 8 of the CPCA. The evident focus in the legislation on scale seems to me to be significant for the question of construction in this case. I will return to this point.

142 This view of the place of the drug trafficker provisions in the scheme of the Misuse of Drugs Act is supported by the remarks of the Minister made during the Second Reading Speech and in Committee. Relevant passages were set out by Buss JA in Zuccala:

When [s 32A] was introduced in 1990 by the Misuse of Drugs Amendment Act 1990, the Minister for Community Services, the Hon Mr D L Smith, in his Second Reading Speech, said:

'A person will be declared to be a drug trafficker in two situations. Firstly, where a person is convicted of an offence involving the supply of drugs and at the time when that offence was committed the person had already been, in the preceding 10 years, convicted of two similar offences. Secondly, where a person is convicted of an offence involving the supply of a prescribed quantity of drugs the prescribed quantity of drugs would usually be of a street value of approximately $15 000. That amount is an indication that large scale drug activities are being carried out from which substantial profits would be derived.'

(See Western Australia, Parliamentary Debates, Legislative Assembly, 22 November 1990, 7653.)

A little later, in Committee, Mr Smith made these remarks:

'I refer members to section 32A(b) [sic] of the Act which refers to a single conviction involving the actual possession of a certain amount of prohibited drugs. It has always been the position in the prosecution of people for drug offences that it be dealt with in two tiers. One is the possession of a drug for personal use and the other is the possession of drugs for the purposes of sale. Traditionally we have worked on the basis that if a person has possession of a quantity of drugs which he can reasonably use for his own benefit over a period, he is charged only with possession and not being in possession of drugs for the purposes of sale. If he is in possession of a larger quantity, by virtue of the quantity it is presumed he cannot use it himself and it is then presumed he has possession of it for the purposes of sale. In this Bill we are taking that one step further by saying that if it is such a quantity as would infer that it is not just held for the purposes of sale, but that it is such a large quantity that a person must not only be presumed to be a dealer for the purposes of sale, but he must also be presumed to be at the top end of the funnel where the drug is gathered and distributed to the dealers and others involved in the selling chain. We want to call those people drug traffickers by virtue of the quantity of drugs they have.

Schedule VII of the Bill states that if the acquired amount is three kilograms of cannabis a person cannot in any way argue that it is required for personal use. It is of a quantity which implies that he is one of the principals supplying the lesser dealers. ...

Professionals have been involved deciding at what level there is a presumption that the person must be involved in breaking down the size of the parcel and selling or distributing it in smaller amounts to lesser dealers. Those professionals have said that when a person is in possession of a quantity of the amounts stated in the schedules it can safely be presumed that they are at the top of the chain and not at the bottom of it. For that reason even if a person is convicted once only, he would be presumed under those circumstances to be a drug trafficker and be subject not only to the penalties imposed for possession of large quantities of drugs for the purposes of sale, but also be subject to the confiscation of assets which flow from being defined as a drug trafficker in this legislation ... (emphasis added)' [67] - [68].

143 The Minister's references to the trafficker being 'in possession' are not significant to the present question. When the legislation was introduced, the definition of serious drug offence did not include an offence under s 33(1)(a). In other words, attempts did not engage s 32A(1)(b) in its original form. Section 32A(1)(b) was amended in 2004 by the Misuse of Drugs Amendment Act 2004 (WA) to include attempts. That amendment was made at the same time as s 33(1)(a) was amended to its present form. Before that the penalty for an attempt was a fine or sentence of imprisonment of one half of the primary substantive offence. I have considered the Explanatory Memorandum and Parliamentary Debate for the Bill by which these amendments were made. I do not think they assist one way or the other on the question of construction in this case. The purpose of the amendment to s 33(1)(a) was explained by reference to the intercepted drug scenario. Nevertheless, by its terms, s 33(1)(a) applies to all species of attempt offences. Contrary to the submissions of senior counsel for the appellant before the primary judge, in my view the absence of specific reference to a case of an attempt where the substance in question was not ever a prohibited drug does not support the appellant's construction.

144 Serious drug offence is defined to include crimes under various sections of the Misuse of Drugs Act, including s 33(1)(a). Consequently, it is clear that a person who is convicted of three offences of attempting to possess prohibited drugs under the Act is liable to be declared a drug trafficker under s 32A(1)(a). It would be beside the point if all of those offences had involved fake drugs.

145 The question in this case is whether the serious drug offence of attempting to possess with intent to sell or supply was 'in respect of a prohibited drug in a quantity ... not less than the quantity specified in Schedule VII in relation to the prohibited drug'.

146 I will use the phrase 'the Sch VII quantity' as a shorthand expression for the statutory phrase in s 32A(1)(b) 'the quantity specified in Schedule VII in relation to the prohibited drug'.

147 The words 'in respect of' are words of wide import. They require some connection between the two subjects one of which is said to be 'in respect of' the other. What that requires will be heavily influenced by the context in which the language is used. See, for example, Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45, 47 - 48; Federal Commissioner of Taxation v Scully [2000] HCA 6; (2000) 201 CLR 148 [39]; Bennett v Higgins [2005] WASCA 197 [31].

148 Section 33(1)(a) is an important element of the statutory context in which s 32A(1)(b) is to be construed. By s 33(1)(a), a person who attempts to commit an offence commits that offence and is liable on conviction to the same penalty to which a person who commits the principle offence is liable. (See, in the latter regard, Reid v The State of Western Australia [2012] WASCA 23 [45]; Dooling v The State of Western Australia [2012] WASCA 95 [8].) The effect of s 33(1)(a) is that an offence of attempting to possess a particular prohibited drug amounts to or constitutes the offence of possessing that prohibited drug. In my opinion, taking into account the width of the language 'in respect of', and taking s 33(1)(a) into account, it is clear that an offence of attempting to possess a particular prohibited drug is an offence in respect of that prohibited drug. Thus I agree with the observation of the learned primary judge (ts 611) that all offences of attempting to possess a prohibited drug, with intent, are offences 'in respect of a prohibited drug'. I think the same is true of all attempts to commit offences under the other paragraphs of s 6(1), all offences under s 6(1) and all conspiracies to commit such offences. Correspondingly, I think all offences under s 7(1), and attempts and conspiracies to commit such offences are 'in respect of a prohibited plant', for the purposes of s 32A(1)(b)(ii).

149 Thus with one exception, all serious drug offences are always offences in respect of either prohibited drugs or prohibited plants. (The exception is the offence of attempting to commit a crime under s 14.)

150 The question under s 32A(1)(b) is whether the serious drug offence is 'in respect of a prohibited drug in a quantity ... not less than [the Sch VII quantity]'. That phrase has two elements: a prohibited drug and a quantity. As I have just explained, the first of those elements will exist in substantially all serious drug offences. The question will be whether the quantity element is satisfied.

151 That underlines the focus in s 32A(1)(b) on scale and quantity. It is those offences that are in respect of the minimum quantity of the relevant prohibited drug which engage s 32A(1)(b).

152 The appellant submits that because there was no actual MDMA in existence in the circumstances of her offence, the qualifying conditions in s 32A(1)(b) are not satisfied. The absence of an 'actual' prohibited drug would not, of itself, exclude the operation of s 32A(1)(b) in relation to other offences under s 6(1), apart from attempting to possess. For example, under s 6(1)(c) it is an offence to offer to sell or supply a prohibited drug. The offence of offering to sell or supply a prohibited drug is complete upon the making of an offer. Whether there was ever in fact any prohibited drug in existence or available to be sold or supplied is not to the point. If a person offered to supply more than the Sch VII quantity of a prohibited drug, in my opinion s 32A(1)(b) would be engaged.

153 Thus, in my view, the existence of an actual prohibited drug is not essential to the operation of s 32A(1)(b) in relation to other serious drug offences (apart from attempting to possess). There is nothing in the language or purpose of the statutory scheme to sustain a different construction in relation to offences of attempting to possess.

154 It may be that senior counsel for the appellant before the primary judge submitted that possession by the offender of an actual prohibited drug was essential to engaging s 32A(1)(b)(i). If and insofar as that was the submission, I agree with McLure P, for the reasons her Honour gives [10] - [16], that the submission must be rejected.

155 As I have said, the appellant distinguishes the present case from the intercepted drug scenario. The appellant accepts, rightly in my opinion, that s 32A(1)(b) could, in some circumstances, be engaged by an offence of attempting to possess a prohibited drug. She accepts that that section is engaged in a case of the following kind. A quantity exceeding the Sch VII quantity of a prohibited drug is dispatched, intended to be sent to the offender, but the drug is intercepted by the authorities, who substitute a different substance. The offender who then comes into possession of the substituted substance, believing it to be the prohibited drug, commits the offence of attempted possession. The appellant accepts that in those circumstances, s 32A(1)(b) would be engaged.

156 That invites attention to the question of whether the section should be construed to operate differently in relation to an attempt in which, as in the present case, no actual prohibited drugs were involved. In my opinion, the legislation applies in the same way in a case such as the present. In my view, there is nothing in the language of s 32A(1)(b), or in its evident purpose, that would justify a different result in the two categories of cases. There is no material difference in the culpability of the offender in each of the two categories of attempt cases. The relevant drug operations constituting the respective offences are of the same scale. Moreover, given my view that the offenders are equally culpable, there is nothing in the confiscation consequences of the declaration under s 32A(1)(b) that would justify a different application to the two situations.

157 In essence, the appellant submits that if no actual prohibited drugs were involved in the offence in question, then the offence was not 'in respect of a prohibited drug in a quantity ... not less than [the Sch VII quantity]'. That submission is founded on a construction of s 32A(1)(b) which I do not accept. In my opinion, s 32A(1)(b) does not direct attention to whether there was in fact in existence an 'actual' prohibited drug, or a particular quantity of an 'actual' prohibited drug. Rather, taking into account the purpose of s 32A and its place within the legislative scheme of the Misuse of Drugs Act, the inquiry under s 32A(1)(b) focuses on the scale and character of the particular offence of which the offender was convicted. The section requires characterisation of the offence of which the offender was convicted, in the light of the facts and circumstances of the offence as found. In a case of attempting to possess a prohibited drug, if the offender possessed or attempted to possess a particular substance, wrongly believing it to be a prohibited drug, the offence will be 'in respect of' that prohibited drug in the quantity of that particular substance.

158 When that process of characterisation is undertaken in this case, the appellant's offence was in respect of MDMA in a quantity of 573g.

159 Thus, the primary judge correctly held that s 32A(1)(b) was engaged.

160 Like the primary judge (ts 611), I do not accept the appellant's attempt to rely on an analogy with s 11(a) of the Misuse of Drugs Act. By its express terms the section is engaged only in respect of a quantity of a prohibited drug which a person 'has in his possession'. It is because of the absence of fulfilment of the requirement that the person has drugs in his or her possession that s 11(a) does not apply to an attempt offence. The inapplicability of s 11(a) does not derive from the words in s 11(a) said to correspond to the language of s 32A(1)(b). As McLure P has explained [10] - [16], possession by the offender of an actual prohibited drug is not essential to engaging s 32A(1)(b)(i).

161 That brings me to the question whether quantities of drugs specified in sch VII of the Misuse of Drugs Act refer to the weight of the pure form of the specified drug or to the weight of the admixture that contains that drug. I will outline the relevant statutory provisions, before explaining the appellant's contentions.

162 I have already set out s 32A. Section 32A(1)(b)(i) relevantly provides that if a person is convicted of a serious drug offence in respect of 'a prohibited drug in a quantity ... not less than [the Sch VII quantity]', then the court convicting the person shall declare the person to be a drug trafficker.

163 The issue raised for consideration at the second appeal hearing was whether the quantity referred to is the quantity of the prohibited drug in its pure form, or whether it is the quantity of the admixture of which the prohibited drug forms a part.

164 That directs attention to the proper construction of the phrase 'prohibited drug in a quantity'. The parties' arguments proceeded on the basis that the proper construction of that phrase was governed by the definition of prohibited drug. Given the conclusion I have reached on the proper construction of those words, and given that the parties put their arguments on that basis, I am content also to proceed on that basis.

165 'Prohibited drug' is defined in s 3 of the Misuse of Drugs Act to mean drug to which that Act applies by virtue of s 4. By s 4(1), the drugs to which the Act applies are:

(c) whether or not they are also drugs of addiction or specified drugs, the drugs specified in sch I.

166 'Drug of addiction' is defined in s 3 of the Misuse of Drugs Act to mean drug of addiction as defined by s 5 of the Poisons Act 1964 (WA).

167 At the time that the appellant committed the offence, the relevant provisions of the Poisons Act were as follows. Section 5 set out various definitions. Relevantly, 'drug of addiction' was defined to mean any substance included in sch 8 or 9; 'substance' was defined to include substance, material, compound, preparation, and admixture; and a reference to a 'schedule' meant a schedule in Appendix A. Clause 1 of Appendix A provided as follows:

(1) In this Appendix, SUSDP means the current Poisons Standard as defined in section 52A of the Therapeutic Goods Act 1989 of the Commonwealth.

(2) If for the purposes of this Appendix it is necessary to interpret a Schedule to the SUSDP, the definitions and interpretation provisions in the SUSDP apply to the interpretation of that Schedule.

168 At the second hearing of the appeal there was some discussion of whether the terms of the Poisons Act at the time of the offence, rather than at the time of conviction, governed the position. It is not necessary to decide that question, given that there are no material differences in the provisions at these times. (The only difference is that at the time the appellant committed the offence, cl 1 of Appendix A referred to the SUSDP, rather than to the SUSMP as it did at the time of the conviction.) I proceed with the terms of the Poisons Act at the time the offence was committed.

169 Schedule 8 to the Poisons Act read '[a]ll substances listed in Schedule 8 to the SUSDP, subject to the following modification ...'. Schedule 8 of the Poisons Act added one substance to sch 8 to the SUSDP. Schedule 9 of the Poisons Act read '[a]ll substances listed in Schedule 9 to the SUSDP, subject to the following modification ...'. Schedule 9 of the Poisons Act added a number of substances to sch 9 to the SUSDP.

170 At the time the appellant committed the offence, the relevant SUSDP (that is, the current poisons standard) was the Poisons Standard 2009 dated 3 August 2009. In the interpretation provisions, cl 1(1) of the SUSDP contained a number of definitions. Clause 1(2) provided that:

(2) Unless the contrary intention appears a reference to a substance in a schedule or an appendix to this Standard includes:

...

(g) a preparation or admixture containing any proportion of the substance.

171 MDMA was (and is) listed in sch 9 to the SUSDP.

Admixture or pure? The appellant's submissions

(1) the definition of substance in s 5 of the Poisons Act, as including an admixture, does not do any relevant work in this context. That is because there are no admixtures listed in sch 8 or sch 9;

(2) the words 'a reference to a substance in a schedule or an appendix to this Standard' in cl 1(2)(g) of the SUSDP mean a reference in the body of the SUSDP to a substance in a schedule, and do not mean a reference in a schedule to a substance; and

(3) consequently, on a proper construction of the words used in cl 1(2) of Appendix A of the Poisons Act, and the words used in the definitions and interpretation provisions in the SUSDP, in particular cl 1(2)(g), the quantity of a prohibited drug for the purposes of s 32A of the Misuse of Drugs Act is the weight of the pure drug and not the weight of any admixture containing the drug.

173 Senior counsel for the appellant submits that the consequence of the conclusion in (3) is that, in this case, no drug trafficker declaration could be made. That is because the pure quantity of the drug which the appellant was convicted of attempting to possess was zero.

174 Senior counsel for the appellant accepted that the conclusion in (3) is contrary to the position stated in cases decided in this court and its predecessor. He submits that that is explicable by the materially different terms of the legislation at the time when the leading case was decided. In that light, it is convenient to turn next to the legislative history and the decided cases in order to explain why I do not accept the appellant's second and third propositions.

Admixture or pure? The legislative history and the course of authority

175 In Fursman v The Queen (Unreported, WASCA, Library No 7414, 5 December 1988), Brinsden J analysed the then applicable legislative scheme. He concluded that the relevant quantity of a prohibited drug is the weight of the admixture, not the weight of the drug in its pure form. At that stage, Appendix A of the Poisons Act was in terms different from those applying at the time relevant to this case. At the time relevant in Fursman, Appendix A of the Poisons Act provided in cl 1 that '[a] substance specified in the schedule, unless the contrary intention appears, includes ... (d) a preparation or admixture containing any proportion thereof of the substance'. At that time, the Eighth Schedule listed a number of substances. It did not refer to or incorporate any schedule from the Commonwealth Poisons Standard.

176 Section 32A was introduced in the Misuse of Drugs Act in 1990. I have set out passages from the Second Reading Speech, and from when the Bill was in Committee, earlier in these reasons. It is clear that the quantities in sch VII and sch VIII of the Misuse of Drugs Act were founded on a view of the approximate street value of the various drugs specified in those schedules. Senior counsel for the appellant did not appear to cavil with the suggestion that, at least for a great many of the drugs in sch VII, the drug is distributed in the form of an admixture, not in a pure form (appeal ts 31). I think that the legislature can be taken to be aware of this.

177 The appellant's argument accepts that when s 32A was introduced in 1990, the quantities in sch VII of the Misuse of Drugs Act referred to the weight of the admixture, not the pure drug. At that stage, the reasoning in Fursman, based on the then language of the Poisons Act Appendix A cl 1(d), applied. The appellant submits that the position was altered by the amendments to the Poisons Act in 1995.

178 In 1995, the Poisons Amendment Act 1995 (WA) repealed Appendix A to the Poisons Act, and substituted a new Appendix A in the following terms:

APPENDIX A

Interpretation

1. (1) In this Appendix, 'SUSDP' means the 'Standard for the Uniform Scheduling of Drugs and Poisons No 9' issued by the Australian Health Ministers Advisory Council and published by the Australian Government Publishing Service Canberra, and includes that standard as it may be amended from time to time by the Council.

(2) If for the purposes of this Appendix it is necessary to interpret a Schedule to the SUSDP, the definitions and interpretation provisions in the SUSDP apply to the interpretation of that Schedule.

179 Appendix A then included schedules 1 to 9. With one immaterial exception, each schedule incorporated the substances listed in the corresponding schedule number in the SUSDP. For example, sch 8 of Appendix A comprised all substances listed in sch 8 of the SUSDP.

180 The Second Reading Speech for the Bill reveals that an object of the amendment was to incorporate the SUSDP, as it was amended from time to time, without the need for continuous amendment of the Poisons Act (Parliamentary Debates, 31 August 1995, pages 7541 - 7542). There is nothing in the Second Reading Speech to suggest any intention to amend the substance of the law in any respect.

181 As can be seen, Appendix A referred to the Standard for the Uniform Scheduling of Drugs and Poisons No 9 (SUSDP No 9). The interpretation provisions relating to the schedules of SUSDP No 9 were in pt 4. Part 4 included cl 1.1, which stated that '[u]nless the contrary intention appears a reference in a Schedule to a poison includes ... 1.1.6 a preparation or admixture containing any proportion of the poison'.

182 Clause 1.1 of SUSDP No 9 included all of the interpretation provisions which had previously been in cl 1 of Appendix A of the Poisons Act and were repealed by the 1995 amending Act. One way of viewing the object of the insertion of the new cl 1(2) of Appendix A into the Poisons Act was that, instead of the Poisons Act having its own interpretation provisions, the provisions in the SUSDP would be adopted, as amended from time to time. However, the appellant submits that the effect of this change to Appendix A was to significantly alter the operation of the Misuse of Drugs Act, in that it meant that henceforth quantities of prohibited drugs related to the drug in its pure form, not as an admixture.

183 Senior counsel for the appellant accepts that there is nothing in the secondary materials for the 1995 amendment that suggests any such intention. Moreover, he accepts that the result he invites is contrary to the apparent assumptions or understanding of the legislature (appeal ts 15, 26 - 27). But he submits that the statutory language compels the conclusion which he invites; no other construction is available (appeal ts 27).

184 In my opinion, it is clear that, in adopting SUSDP No 9, the 1995 amendment did not reveal an intention to effect the change alleged by the appellant. Clause 1.1.6 of SUSDP No 9, incorporated by the new Appendix A to the Poisons Act, was in terms that a 'reference in a Schedule to a poison includes...an admixture'. That language makes it plain that cl 1.1.6 applies to the interpretation of something in a schedule, not only to the interpretation of something in the body of the SUSDP itself.

185 The language of the interpretation provisions of the Poisons Standard, the SUSDP, changed in the next edition. By the time the 1995 amendment to the Poisons Act was assented to on 6 November 1995, the Standard for the Uniform Scheduling of Drugs and Poisons No 10 (SUSDP No 10) had become the current standard.

186 In SUSP No 10, the interpretation provisions relating to schedules were again contained in pt 4. Clause 76 provided that:

1. Unless the contrary intention appears a reference to a poison in a Schedule includes:

(6) a preparation or admixture containing any proportion of the poison; ...

(8) but a reference in a Schedule to a poison does not include:

187 Thus in SUSDP No 10 the interpretation provision was in terms of 'a reference to a poison in a Schedule' rather than 'a reference in a Schedule to a poison' as it had been in SUSDP No 9 (and which latter phrase was still used in cl 76(8) of SUSDP No 10). In substance, the appellant submits that that change effected a substantial amendment to the scope of operation of the interpretation provisions of the SUSDP (so that they applied only to the standard itself (the body of the SUSDP) and not to things in a schedule), and in turn effected substantial change to the Poisons Act and the Misuse of Drugs Act.

188 For reasons to be developed, I do not accept the first step of those submissions. In particular, I do not accept that the phrase 'a reference to a poison in a Schedule' is limited to references in the body of the SUSDP, as distinct from references in a schedule.

189 As I have said, the appellant's submission is contrary to the course of authority in this court. However, the specific contention made by the appellant has not been previously considered.

190 Since 1995, this court and its predecessor have stated on a number of occasions, citing Fursman, that a reference in the Misuse of Drugs Act to a quantity of a prohibited drug is to the quantity of the admixture containing the drug, not the prohibited drug in its pure form: R v Mahasay [2002] WASCA 336; (2002) 135 A Crim R 232 [9]; Kirby v The Queen [2003] WASCA 164 [137]; Musarri v The Queen [2006] WASCA 92; (2006) 32 WAR 19 [137]. In these cases there was no reference to the amendments in the legislation since Fursman, and there was evidently no argument addressed to the question of whether the amendments altered the position.

191 In Paul v Collins Jnr [2003] WASCA 238 [9] - [15], Johnson J considered the legislative framework in which Fursman was decided, and the current statutory framework, concluding that the decision in Fursman remained applicable. However, it had been conceded by the appellant in that case [2] that a reference in the Misuse of Drugs Act to MDMA included a reference to an admixture containing that drug.

Admixture or Pure? The proper construction of the legislative scheme

192 As a matter of language I see no difficulty in reading 'a reference to a substance in a schedule' as encompassing a reference, in a schedule or in the body of the standard (the SUSDP), to a substance in a schedule.

193 Senior counsel for the appellant appeared to accept that, but submits that his construction of this phrase is compelled by the statement, in cl 1(2) of the SUSDP, that a reference to a substance in a schedule or an appendix does not include the products or substances referred to in par (h) to (k) of the clause (appeal ts 24 - 25).

194 By par (h) of cl 1(2) of the SUSDP, a reference to a substance in a schedule or an appendix does not include a substance in Appendix B.

195 Counsel for the appellant submits that the statement excluding substances in Appendix B would not make sense if 'reference to a substance in a schedule or appendix' were read as meaning a reference in a schedule (or appendix) to a substance. That is because Appendix B contains substances considered not to require control by scheduling. According to counsel for the appellant, 'if those definition interpretations provisions meant a reference to a substance in a schedule for the purpose of the schedule itself, disregarding the contents of the standard ... then there would be no need to exclude particular substances' (appeal ts 25).

196 I do not accept this submission. In my view, there is nothing in the 'but does not include' part of cl 1(2) that is inconsistent with reading 'a reference to a substance in a schedule' as encompassing a reference, either in the body of the standard or in a schedule, to a substance in a schedule.

197 That being so, I do not accept the appellant's submission that the statutory language compels the appellant's construction.

198 Further, the construction of this interpretation provision invited by the appellant is inconsistent with what is said in the SUSDP about reading the schedules. On page x of the SUSDP the statement is made that:

It is important to remember that a Schedule entry includes preparations containing the poison in any concentration...unless it specifically states otherwise. (See Interpretation PART 1 [paragraph 1(2)]).

199 This part of the SUSDP is not specifically incorporated by reference in Appendix A, in the Poisons Act. However, Appendix A picks up the interpretation provisions of the SUSDP, and this part of the SUSDP elucidates the proper construction of those provisions.

200 In my view a consideration of the legislative history of the various relevant provisions militates firmly against the construction advanced by the appellant. When s 32A was introduced, its reference to quantities in sch VII was plainly to the weight of an admixture. Nothing in the legislative amendments to the Poisons Act, or in the parts of the various new versions of the SUSDP incorporated into the Poisons Act since then, reveals any intention to alter that position.

201 The object of the Misuse of Drugs Act is to prevent or discourage the distribution of drugs in the community. What is distributed in the community is, at least in the case of many drugs, drugs in an admixture not in a pure form. This favours a construction of the legislation that treats the quantity of an admixture containing a prohibited drug as the weight of the admixture, not the weight of the pure drug contained in the admixture.

202 The appellant accepts, rightly in my opinion, that her argument that quantity for the purpose of s 32A of the Misuse of Drugs Act means weight in pure form applies equally to quantity for the purposes of s 9 and sch IV, and for the purposes of s 11(a) and sch V. Section 9 relates to whether the offence is triable summarily. As I have previously said, s 11 is concerned with the presumption of intent to sell or supply. On the appellant's argument, those quantities were assessed by reference to the weight of the admixture until the 1995 amendments to the Poisons Act whereupon the quantities were to be assessed by reference to the weight of the pure drug. It would seem surprising if such fundamental change were effected without any apparent recognition by the legislature, or by the courts in the many years since. For the reasons already given, and those in the next paragraph, in my opinion no such change has occurred.

203 In my opinion the contents of sch V of the Misuse of Drugs Act reveal an intention that the weight stipulated for each prohibited drug refers to the weight of an admixture. That is apparent from the specific exclusion of preparations of certain particular drugs, at or less than a stipulated weight per dosage unit. See, for example Difenoxin.

204 In my respectful opinion, on a proper construction of par 1(2) of Appendix A of the Poisons Act, ambiguity or lack of clarity is not a precondition to it being 'necessary' for the purposes of Appendix A, 'to interpret a Schedule to the SUSDP'. Paragraph 1(2) of Appendix A is engaged in an application under s 32A of the Misuse of Drugs Act in the following way. It is necessary to interpret a schedule to the SUSDP, namely sch 9, in order to determine, for the purposes of Appendix A, whether a substance that is an admixture containing a drug listed in the schedule and other things is within the schedule. For that purpose, cl 1(2)(g) of the SUSDP applies to the interpretation of sch 9 of the SUSDP.

205 For these reasons, a reference in s 32A (and s 9 and s 11) of the Misuse of Drugs Act to a quantity of a prohibited drug is a reference to the weight of an admixture containing that drug, not the weight of the drug in its pure form.

206 Consequently, my earlier conclusion at [159], stands.

207 For these reasons, the primary judge was correct to make a drug trafficker declaration. The appeal should be dismissed.