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Court of Criminal Appeal 16 December 2015

R v Peart; R v Sorokin

[2015] NSWCCA 321

Drugs
CRIMINAL LAW COMMONWEALTH DRUG OFFENCES CRIMINAL CODE (CTH) S 301.9(2) “OR” WHETHER SHOULD BE READ DISTRIBUTIVELY

Citation: R v Peart; R v Sorokin [2015] NSWCCA 321
Court: NSW Court of Criminal Appeal
Date: 16 December 2015
Judge(s): Ward JA at [1]; R A Hulme J at [61]; Fagan J at [62]

Background

Two respondents were charged in 2014 with three counts of drug offences relating to the alleged importation of, and trafficking in, a substance known as MDMC (3,4-methylenedioxymethcathinone). The first two counts charged importation of a border controlled drug, framing MDMC as a drug analogue of Methcathinone. The third count charged domestic trafficking in MDMC, framing it as a listed controlled drug in its own right.

Before the trial commenced, the Crown prosecutor raised a preliminary question about the legal sustainability of the two importation counts. The issue arose because MDMC was itself listed as a controlled drug under the Criminal Code Regulations 2002 (Cth), and amendments to the Criminal Code (Cth) that took effect on 28 May 2013 had introduced a consolidated definition of "drug analogue" with an exclusion provision in s 301.9(2).

The trial judge, following the approach taken by Murrell CJ in the ACT Supreme Court in R v Poulakis (No 3) [2015] ACTSC 191, held that MDMC's status as a listed controlled drug prevented it from being treated as a drug analogue of Methcathinone for the purposes of the importation offences. The judge quashed the two importation counts, and the Commonwealth Director of Public Prosecutions appealed to the Court of Criminal Appeal under s 5C of the Criminal Appeal Act 1912 (NSW).

  • Whether s 301.9(2) of the Criminal Code (Cth), which provides that a "drug analogue" does not include a substance that is itself a listed controlled drug or a listed border controlled drug, operates as a single blanket exclusion across both categories of offence.
  • Alternatively, whether s 301.9(2) should be read distributively, so that a substance's listing as a controlled drug excludes it only from the analogue definition for controlled drug offences, without affecting its capacity to be a drug analogue of a border controlled drug for importation offences.
  • Whether the trial judge erred in quashing counts 1 and 2 on the indictment.

Decision

The Court of Criminal Appeal unanimously allowed the appeal, holding that s 301.9(2) must be read distributively. On the distributive reading, a substance's listing as a controlled drug excludes it from the drug analogue definition only in relation to controlled drug offences. It does not prevent that substance from qualifying as a drug analogue of a border controlled drug for the purposes of the importation and exportation offences.

The Court's analysis began with the text of s 301.9(1), which defines a "drug analogue" as a drug analogue "of a listed controlled drug, or a listed border controlled drug." Ward JA concluded that the term "drug analogue" in s 301.9(2) is used as shorthand for that fuller expression. When the shorthand is expanded, s 301.9(2) is properly understood as providing that a drug analogue of a listed controlled drug does not include a substance that is itself a listed controlled drug, and a drug analogue of a listed border controlled drug does not include a substance that is itself a listed border controlled drug, each operating independently of the other.

The Court found strong support for the distributive construction in the pre-amendment legislative history. Before the May 2013 amendments, ss 314.1(2) and 314.4(2) each contained their own analogue exclusion provisions, and it was undisputed that a drug listed as a controlled drug could still be a drug analogue for border controlled drug purposes. The 2013 amendments consolidated those provisions into a single s 301.9 but, on the Court's analysis, did not alter that underlying relationship between the two lists.

The Court also found that the alternative, non-distributive construction would produce absurd results. It would mean that a drug's listing on the controlled drug schedule, designed to capture it for domestic trafficking offences, would inadvertently immunise importers from prosecution for cross-border importation offences. The Court held that Parliament could not have intended that outcome, particularly given the absence of any indication in the explanatory materials of an intention to change the pre-existing position.

Orders Made

  • Appeal allowed.
  • The order made by Toner SC DCJ on 9 September 2015 quashing counts 1 and 2 on the indictment was set aside.

Key Takeaways

  • The Court of Criminal Appeal held that s 301.9(2) of the Criminal Code (Cth) operates distributively: a substance's listing as a controlled drug excludes it from the drug analogue definition only for controlled drug offences, not for border controlled drug offences.
  • A substance can simultaneously be a listed controlled drug (for domestic trafficking and manufacturing purposes) and a drug analogue of a listed border controlled drug (for importation and exportation purposes); the two categories are not mutually exclusive.
  • Legislative history played a significant role in the Court's reasoning. The pre-2013 provisions expressly treated the two lists independently, and the 2013 consolidation was found not to have altered that structure.
  • Under principles of statutory interpretation, the word "or" in s 301.9(2) was read distributively rather than as creating a single combined category, consistent with the structure and purpose of the provision as a whole.
  • Where a non-distributive construction would produce absurd consequences, such as inadvertently immunising importers from prosecution, courts will favour the interpretation that gives coherent and rational effect to the legislative scheme.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 11.2A, 300.2, 301.1, 301.4, 301.9, 302.4, 307.3
- Criminal Code Regulations 2002 (Cth), Schedules 3 and 4
- Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth)
- Criminal Appeal Act 1912 (NSW), s 5C
- Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB

Cases
- R v Poulakis (No 3) [2015] ACTSC 191
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
- Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318
- Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
- Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
- Re Bolton; Ex Parte Beane [1987] HCA 12; (1987) 162 CLR 514
- Re the Minister for Works; ex parte Duffy [2002] WASCA 295
- Saeed v Minister of Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252