Court of Appeal (WA)|2012-10-08|Before: Lure P, Pullin JA, Beech J

REID -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2012] WASCA 190 (8 October 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : REID -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2012] WASCA 190

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

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

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

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

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

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:

by s 3(1) of the Act, 'prohibited drug' means a drug to which the Act applies by virtue of s 4;
s 4(1) of the Act includes 'drugs of addiction';
by s 3(1) of the Act, drugs of addiction are drugs of addiction as defined by s 5 of the PA;
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;
Schedule 9 PA states 'All substances listed in Schedule 9 to the SUSDP ... ';
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).

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:

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

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

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.

REID -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2012] WASCA 190 (8 October 2012)

At a glance

Court

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Before

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Judgment (325 paragraphs)

REID -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2012] WASCA 190 (8 October 2012)

Legislation Cited (7)

Cases Cited (16)