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THE STATE OF WESTERN AUSTRALIA -v- NGUYEN [2018] WADC 123 (5 October 2018)

Last Updated: 23 April 2019

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION : PERTH

CITATION : THE STATE OF WESTERN AUSTRALIA -v- NGUYEN [2018] WADC 123

CORAM : GETHING DCJ

HEARD : 12 SEPTEMBER 2018

DELIVERED : Ex tempore

PUBLISHED : 5 OCTOBER 2018

FILE NO/S : IND 1267 of 2017

BETWEEN : THE STATE OF WESTERN AUSTRALIA

AND

HOANG NAM NGUYEN

Criminal law - Whether the definitions in the SUSMP apply to substance added to the SUSMP schedules by Misuse of Drugs Act sch 9

Legislation:

Misuse of Drugs Act 1981 (WA)

Poisons Act 1964 (WA) Appendix sch 9

Standard for the Uniform Scheduling of Drugs and Poisons (No 9) (Cth)

Result:

Application dismissed

Representation:

Counsel:

Solicitors:

Case(s) referred to in decision(s):

Clegg v The State of Western Australia [No 2] [2017] WASC 30

Reid v The State of Western Australia [2012] WASCA 190

Trajkowski v Director of Public Prosecutions  [2010] WASCA 119 

GETHING DCJ: [This decision was delivered extemporaneously on 12 September 2018 and edited from the transcript.]

1. An issue has arisen in this case as to whether the indictment presented against Mr Nguyen, as a matter of law, discloses an offence.
2. The indictment alleges, as particulars, that three substances commonly known as 5F-AMB, AB-CHMINACA and FUB-AMB are derivatives of AB-PINACA.
3. The prosecution position is that the definition of 'prohibited drug' in the Misuse of Drugs Act 1981 (WA) (MDA) extends to derivatives of AB-PINACA. The defence position is that it does not.
4. The definition of 'prohibited drug' in the MDA relevantly includes prohibited substances as set out in Appendix sch 9 to the Poisons Act 1964 (WA). The pathway by which this outcome is arrived at is:

(a) by MDA s 3(1), 'prohibited drug' means a drug to which the MDA applies by virtue of s 4;

(b) MDA s 4(1) the definition includes 'drugs of addiction';

(c) by MDA s 3(1), drugs of addiction are drugs of addiction as defined by Poisons Act 1964 (WA) s 5; and

(d) by Poisons Act s 5, drug of addiction means any 'substance' included in sch 8 or sch 9.

5. The Poisons Act has been repealed but applied in the timeframe in which the offences are alleged to have been committed.
6. Poisons Act sch 9 provides:

Schedule 9
All substances listed in Schedule 9 to the SUSMP, subject to the following modification —
The following substances are added to Schedule 9 to the SUSMP —
...
N-[(1S)-1-(aminocarbonyl)-2-methylpropyl]-1-pentyl-1H-indazole-3-carboxamide (AB PINACA).
...

7. At the commencement of the appendix to the Poisons Act, the following appears:
   1. Term used: SUSMP

(1) In this Appendix —

SUSMP means the current Poisons Standard as defined in the Therapeutic Goods Act 1989 (Commonwealth) section 52A.

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

8. The relevant Standard for the Uniform Scheduling of Medicines and Poisons for the present prosecution is No 9 (SUSMP). The definition of 'substance' in the SUSMP includes derivatives of substances set out in sch 9. However, the definition of 'substance' in the Poisons Act does not include derivatives.
9. The defence position is that the additions to sch 9 to the SUSMP set out in sch 9 to the Poisons Act are just that, additions. The definitions and interpretation provisions in the SUSMP only apply where 'it is necessary to interpret a Schedule to the SUSMP'. As the substance AB-PINACA is not in sch 9 to SUSMP, no occasion arises to interpret that schedule, and thus no reference can be made to the interpretation provisions in the SUSMP. The consequence is that the indictment in its current form discloses no offence at law.
10. The State's position is that the status of a substance as a prohibited drug is produced by the interaction of the MDA, Poisons Act and the SUSMP. These provisions are to be construed as part of an overlapping legislative scheme.[1]
11. The State's position is that the effect of listing AB-PINACA in sch 9 to the Poisons Act is to deem it to be added to sch 9 of SUSMP for the purpose of the Poisons Act. It is asserted that this construction best promotes the purpose and object underlying the overlapping legislative regime of the MDA, Poisons Act and SUSMP, a construction which Interpretation Act 1984 (WA) s 18 instructs me to prefer.
12. By contrast, the defence position is that the proper construction of sch 9 to the Poisons Act is that it has the effect that sch 9 to the SUSMP is added into sch 9 to the Poisons Act, in essence as a shorthand instead of listing each and every substance set out in sch 9 to the SUSMP. To this list is then added the substances named in sch 9 to the Poisons Act. It is only the list of substances added from sch 9 to the SUSMP that are to be interpreted having regard to the interpretation provisions of the SUSMP.
13. In Clegg v The State of Western Australia [No 2], the court observed:[2]

The status of a substance as a prohibited drug is produced by the interaction of the Drugs Act, the Poisons Act 1964 (WA) and the Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP) made under the Therapeutic Goods Act 1989 (Cth) (TGA). These provisions are to be construed together as part of an overlapping legislative scheme.

14. One of the authorities cited for this proposition was the decision of Buss JA in Trajkoski v Director of Public Prosecutions where his Honour observed[3].

It is well-established that where two or more statutory enactments comprise an overlapping legislative scheme, the enactments should be construed accordingly.

15. Another decision cited was the decision of McLure P in Reid v The State of Western Australia.[4] In that case, McLure P and Beech J held that the word 'necessary' in cl 1(2) cannot mean that ambiguity or lack of clarity is required before regard can be had to the definition provision in cl 1 of SUSMP.[5] The decision of Pullin JA is to the contrary.[6] The President went on to observe:[7]

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.

16. Beech J quotes cl 1 of Appendix A of the 1995 version of the Poisons Act, which is in relevantly the same terms as the version of Appendix A applicable to the current prosecution. His Honour then adds:[8]

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.
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.
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 of admixture containing any proportion of the poison.
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.

17. I note that in the definitional provisions of sch 8 to the Poisons Act 1964 as it stood prior to the 1995 amendments, the term 'substance' was defined in terms similar to the definition in SUSMP cl 1(2). Specifically, it provided that 'a substance specified in the schedule, unless the contrary appears, includes ... (a) every salt, active principle or derivative of the substance, and every salt of such or active principle or a derivative'.
18. What has happened over time is that substances have been added to sch 8 which do not appear in SUSMP.
19. The construction contended for by the defence is that the definitional provisions do not apply to these additional substances.
20. In my view, this cannot have been the intention of Parliament. Rather, as an overlapping statutory scheme, the definitions in the SUSMP are to apply to all substances in Poisons Act sch 9. I agree with the position expressed by Beech J in Reid that 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 SUSMP would be adopted, as amended from time to time.
21. This has the effect that, in construing substances added to Poisons Act sch 9, regard may be had to the definitions and interpretation provisions in the SUSMP. It is only in this way that there can be a coherent and consistent regime for the regulation of prohibited drugs.
22. To the extent that this conclusion seems to not reflect the plain meaning of the words of Appendix A cl 1(2), the following observations by Pullin JA in Reid are apposite:[9]

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) 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.

23. For these reasons, I conclude that the definition provisions in SUSMP apply to substances added to the lists in SUSMP pursuant to Poisons Act sch 9. This has the effect that the term 'prohibited drug' includes derivatives of substances in Poisons Act sch 9, one of which is AB-PINACA. Accordingly, the indictment discloses an offence known to the law.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

AR
ASSOCIATE TO JUDGE GETHING

5 OCTOBER 2018

[1] Citing Clegg v The State of Western Australia [No 2] [2017] WASC 30 [7] (Reasons of the court).
[2] Clegg [7].
[3] Trajkowski v Director of Public Prosecutions  [2010] WASCA 119  [50] (Buss JA).
[4] Reid v The State of Western Australia [2012] WASCA 190 [20] (McLure P).
[5] Reid [30] (McLure P), [204] (Beech J).
[6] Reid [86], [91] (Pullin JA).
[7] Reid [30].
[8] Reid [179] – [182] (Beech J).
[9] Reid [102] (Pullin JA).