Home | Databases | WorldLII | Search | Feedback Supreme Court of Western Australia - Court of Appeal

You are here: 

CLEGG -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2017] WASCA 30 (21 February 2017)

Last Updated: 3 March 2017

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION : CLEGG -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2017] WASCA 30

CORAM : BUSS P

MAZZA JA

MITCHELL JA

HEARD : 19 AUGUST 2016

DELIVERED : 21 FEBRUARY 2017

FILE NO/S : CACR 151 of 2015

BETWEEN : KERRY PATRICIA CLEGG

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

FILE NO/S : CACR 163 of 2015

BETWEEN : KARL MATHEW THORNTON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : LEVY DCJ

File No : IND 1274 of 2014

Catchwords:
Criminal law - Appeal against conviction - Selling a prohibited drug to another - Whether Alpha-PVP is a derivative of MDPV - Meaning of 'derivative' - Whether verdict supported by the evidence

Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(c)
Poisons Act 1964 (WA)
Poisons Standard 2013 (Cth)
Therapeutic Goods Act 1989 (Cth)

Result:
Leave to appeal granted
Appeals dismissed

Category: A

Representation:

CACR 151 of 2015

Counsel:

Appellant : Mr R Kashyap

Respondent : Mr J McGrath SC

Solicitors:

Appellant : Morris Law

Respondent : Director of Public Prosecutions (WA)

CACR 163 of 2015

Counsel:

Appellant : Mr A Elliott

Respondent : Mr J McGrath SC

Solicitors:

Appellant : Sklarz Lawyers

Respondent : Director of Public Prosecutions (WA)

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

AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390

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

Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436

Australian Competition and Consumer Commission v Dateline Imports Pty Ltd [2014] FCA 791; (2014) 143 ALD 136

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

Daley v Tasmania [2012] TASCCA 4; (2012) 21 Tas R 247

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

Gallager v The State of Western Australia [2016] WASCA 54

McEwen v The Queen (1998) 99 A Crim R 421

Re Michael; ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511

Reid v Director of Public Prosecutions [2012] WASCA 190

Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176

The Queen v AL (a pseudonym) [2016] VSCA 156

Trajkoski v Director of Public Prosecutions  [2010] WASCA 119 

Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1

REASONS OF THE COURT:

1 The first appellant, Ms Clegg, was charged with four counts of selling a prohibited drug to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (Drugs Act). The second appellant, Mr Thornton, was relevantly charged with six counts of the same offence. The offences were alleged to have occurred on various specified dates between 23 December 2013 and 6 February 2014. The appellants were both convicted of all counts as charged after trial in the District Court of Western Australia.

2 The prohibited drug specified in the indictment was 'Alpha-Pyrrolidinovalerophenone (Alpha-PVP), a derivative of 3,4-methylenedioxypyrovalerone (MDPV)'. A contested issue at trial was whether the State had proved, beyond reasonable doubt, that the substance which the appellants sold to an undercover police operative, analysed to be Alpha-PVP, was a prohibited drug. The verdicts of guilty indicate that the jury was satisfied that the State had proven this element of the offence.

3 At the time of the alleged offending, Alpha-PVP was not specifically listed as a prohibited drug for the purposes of the Drugs Act. Alpha-PVP was specifically listed in a relevant schedule only after the appellants' alleged offending. However, at the time of the alleged offending, MDPV was specifically listed in a relevant schedule. The effect of the relevant legislation (discussed in detail below) was that 'every derivative' of MDPV was a prohibited drug. The State relied on the evidence of Dr Oliver Locos, an analyst employed at the Chemistry Centre of WA, to establish that Alpha-PVP was a derivative of MDPV. His opinion to that effect was not contradicted by other expert evidence.

4 The appellants now appeal on the ground that the verdicts of the jury were unreasonable or cannot be supported. In effect, the grounds of appeal contend that Dr Locos' evidence was insufficient to allow the jury to conclude that Alpha-PVP is a derivative of MDPV. If that is correct, the jury could not properly have been satisfied beyond reasonable doubt that the substance which the appellants were alleged to have sold was a prohibited drug. The appellants do not challenge the sufficiency of the evidence to establish the other elements of the offences with which they were charged.

5 For the following reasons, the appellants' appeals must be dismissed.

6 The appellants' submissions proceed from the position they adopt in relation to the proper construction of the relevant legislation. These reasons will address the proper construction of the relevant provisions, before turning to consider the adequacy of the evidence to establish that Alpha-PVP was a derivative of MDPV.

7 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.[1]

8 Section 6 of the Drugs Act creates various offences relating to 'a prohibited drug'. Most relevantly to the present case, s 6(1)(c) of the Drugs Act provides that, subject to presently immaterial exceptions, a person who sells a prohibited drug to another commits a crime.

9 Section 3(1) of the Drugs Act defines the term 'prohibited drug' to mean 'a drug to which [the Drugs Act] applies by virtue of s 4' of the Drugs Act. Section 4(1) of the Drugs Act identifies the following as the drugs to which the Act applies (subject to a presently immaterial exception):

(a) drugs of addiction; and

(b) specified drugs; and

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

10 Schedule 1 to the Drugs Act specifies a number of prohibited drugs, including a 'derivative' of cocaine and cannabis, but does not include Alpha-PVP. The Drugs Act uses the term 'derivative' at other points, but does not define the term.

11 Section 3(1) of the Drugs Act defines the terms 'drug of addiction' and 'specified drug' by reference to the definition of those terms in the Poisons Act.

12 The Poisons Act is relevantly described in its long title as 'an Act to regulate and control the possession, sale and use of poisons and other substances'. A 'poison' is defined by s 5(1) of the Poisons Act to mean any substance included in a schedule to that Act. In general terms, the Poisons Act regulates and provides for the licensing of the sale of certain poisons, and makes provision in relation to their packaging.

13 Section 20(1) of the Poisons Act also provides for the substances included in the Schedules to the Act to be poisons for the purposes of the Act. Section 20(2) provides that a schedule includes substances of the kind described in the Table to s 20 for the schedule. The table to s 20 identifies the kinds of substances included in each schedule. They include the following provision for sch 8 and sch 9:

Schedule 8 - Controlled Drug

Substances which should be available for use but require restriction of manufacture, supply, distribution, possession and use to reduce abuse, misuse and physical or psychological dependence.

Schedule 9 - Prohibited Substance

Substances which may be abused or misused, the manufacture, possession, sale or use of which should be prohibited by law except when required for medical or scientific research, or for analytical, teaching or training purposes with approval of the CEO.

14 Section 21 of the Poisons Act empowers the Minister, by order published in the Gazette, to amend Appendix A to that Act, which contains the schedules. Section 20A provides that a substance may be identified in a schedule in any way the Minister thinks fit, including by reference to a standard or part of a standard as in force from time to time.

15 Section 5(1) of the Poisons Act defines a 'drug of addiction' to be any substance included in sch 8 or sch 9. Schedule 8 and sch 9 specify all substances listed in sch 8 and sch 9 to 'the SUSMP', respectively, subject to modification by the addition of various substances identified by their chemical names. Clause 1 of Appendix A to the Poisons Act defines 'SUSMP' in the following terms:

(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.

16 At the time of the alleged offences, sch 8 and sch 9 to the Poisons Act did not modify the equivalent schedules to the SUSMP by adding Alpha-PVP. Alpha-PVP was included in sch 9 of the Poisons Act only on 28 June 2014, after the dates of the appellants' alleged offences (which are between 23 December 2013 and 6 February 2014).[2]

17 Section 5(1) of the Poisons Act defines 'specified drug' to mean 'any substance that is declared to be a specified drug for the purposes of this Act'. Alpha-PVP has not been declared to be a 'specified drug' for the purposes of the Poisons Act.

18 Therefore, at the relevant time, the status of Alpha-PVP as a prohibited drug for the purposes of the Drugs Act depended on it being listed in sch 8 or sch 9 to the SUSMP, so as to be a 'drug of addiction' for the purposes of the Poisons Act.

19 The TGA contains detailed provisions regulating matters such as the manufacture and advertising of therapeutic goods. The term 'therapeutic goods' is broadly defined in s 3(1) of the TGA, and includes goods represented to be or likely to be taken for therapeutic use. The operation of the TGA in relation to therapeutic goods is not confined to scheduled substances.

20 Part 6-3 of the TGA makes provision in relation to the scheduling of substances. Section 52AA provides the following overview of the Part:

This Part provides the basis for a uniform system in Australia of access controls for goods containing scheduled substances.

The scheduling of substances allows restrictions to be placed on their supply to the public, in the interests of public health and safety. This is aimed at minimising the risks of poisoning from, and the misuse and abuse of, scheduled substances.

21 For the purposes of this Part, the term 'substance' is relevantly defined by s 52A to mean:

an ingredient, compound, material or preparation which, or the use of which, may cause death, illness or injury to persons or animals;

22 Section 52D(2)(b) of the TGA authorises the Secretary to prepare a document (including schedules containing the names or descriptions of substances or classes of substances), in substitution for the current Poisons Standard.

23 Section 52D(2)(a) gives the Secretary the power to amend the current Poisons Standard. By s 52D(5), the power to amend is a power to alter, omit or insert any provision (including a reference to a substance) of the current Poisons Standard.

24 By s 52D(3), the power to amend or prepare a substituted Poisons Standard may be exercised on the Secretary's own initiative or following an application by a person under s 52EAA of the TGA.

25 In exercising the power to amend or substitute the current Poisons Standard, the Secretary is required by s 52E(1) to take the following matters into account:

(a) the risks and benefits of the use of a substance;

(b) the purposes for which a substance is to be used and the extent of use of a substance;

(c) the toxicity of a substance;

(d) the dosage, formulation, labelling, packaging and presentation of a substance;

(e) the potential for abuse of a substance;

(f) any other matters that the Secretary considers necessary to protect public health.

26 The Secretary is also required to comply with certain guidelines, and to have regard to any recommendations or advice of the Advisory Committees on Medicines and Chemicals Scheduling.[3]

27 The TGA itself does not regulate the manufacture, sale and use of scheduled substances as such. Rather, pt 6-3 of the TGA provides for the classification of substances to facilitate restrictions being placed on their public supply by other legislative instruments.

28 Section 52D(4A) of the TGA relevantly provides that an instrument made by the Secretary amending or substituting the current Poisons Standard is a legislative instrument. This engages s 13 of the Legislation Act 2003 (Cth) in relation to the construction of the instrument. By s 13(1)(a), the Acts Interpretation Act 1901 (Cth) applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act. By s 13(1)(c) of the Legislation Act, any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the person to make the instrument.

29 The current Poisons Standard in force at the date of the appellants' alleged offences was the Poisons Standard 2013 (Cth), made as a substitution by the Secretary to the Department of Health and Ageing on 22 July 2013. No issue about the validity of the SUSMP is raised in these proceedings. Clause 2 of that instrument provides:

The Poisons Standard 2013 consists of the Standard for the Uniform Scheduling of Medicines and Poisons No. 4 (the SUSMP 4) as set out in Schedule 1.

30 The standard set out in sch 1 to the Poisons Standard 2013 has a number of elements.

Introduction

31 The text of the SUSMP commences with an introduction which, in contrast to the balance of the instrument, is expressed discursively. It begins by identifying the authority for its making and its key purposes, and gives a general description of the Schedules to the SUSMP. The descriptions for sch 8 and sch 9 to the SUSMP are consistent with those for the equivalent schedules to the Poisons Act set out above.

32 The introduction then discusses the 'principles of scheduling', including in the following passages:

Poisons are not scheduled on the basis of a universal scale of toxicity. Although toxicity is one of the factors considered, and is itself a complex of factors, the decision to include a substance in a particular Schedule also takes into account many other criteria such as the purpose of use, potential for abuse, safety in use and the need for the substance.

This Standard lists poisons in nine Schedules according to the degree of control recommended to be exercised over their availability to the public.

Poisons for therapeutic use (medicines) are mostly included in Schedules 2, 3, 4 and 8 with progression through these Schedules signifying increasingly restrictive regulatory controls.

...

Schedule 9 contains substances that should be available only for teaching, training, medical or scientific research including clinical trials conducted with the approval of Commonwealth and/or State and Territory health authorities. Although appearing as a Schedule in this Standard, the method by which it is implemented in the States and Territories may vary.

33 The introduction to the SUSMP then contains a section titled 'Reading the Schedules'. Most relevantly for the present case, the section includes the following text:

It is important to remember that a Schedule entry includes preparations containing the poison in any concentration and all salts and derivatives of the poison unless it specifically states otherwise. (See Part 1, Interpretation, subparagraph 1(2).

It is important to note that a substance is not classed as a derivative on the basis of a single, prescriptive set of criteria. Classification of a substance as a derivative of a scheduled poison relies on a balanced consideration of factors to decide if a substance has a similar nature (e.g. structurally, pharmacologically, toxicologically) to a scheduled poison or is readily converted (either physically or chemically) to a scheduled poison. However, a substance is only considered a derivative of a scheduled poison if it is not individually listed elsewhere in the Schedules, or captured by a more restrictive group or class entry. Additionally, some entries specifically exclude derivatives. Once a substance is determined to be a derivative of a scheduled poison, the same scheduling requirements as the scheduled poison, including limits on access, supply and availability, will apply. (emphasis added)

The appellants' argument particularly relies on the emphasised part of this passage.

Part 1: Interpretation

34 Part 1 of the SUSMP is titled 'Interpretation', and consists of one clause. Clause 1(1) defines, in the usual legislative way, the meaning of a variety of terms in the SUSMP unless the contrary intention appears. Clause 1(2) is of central importance in these proceedings, and provides:

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: (certain matters are then specified). (emphasis added)

35 Clause 1(3) and cl 1(4) deal with other matters of interpretation.

Parts 2 - 5: Operative provisions

36 Part 2 of the SUSMP specifies certain requirements for labelling and containers, and is not presently relevant.

37 Part 3 of the SUSMP sets out regulations and controls which it recommends States and Territories provide in relation to matters such as the advertising and sale and supply of scheduled substances.

38 Part 4 of the SUSMP contains nine schedules which identify substances, generally by their chemical names. At the material times, MDPV was listed in sch 9 to the SUSMP, but Alpha-PVP was not listed in either sch 8 or sch 9.

39 Part 5 of the SUSMP contains a number of appendices which are not presently relevant.

40 At the time of the alleged offences, Alpha-PVP was not listed in any relevant schedule. Its status as a prohibited drug for the purposes of the Drugs Act depended on the inclusion of MDPV in Schedule 9 to the SUSMP, read with cl 1(2)(c) of the SUSMP which provides for references to a substance in a Schedule to include every 'derivative' of the substance. If Alpha-PVP is a derivative of MDPV, then it would be identified by reference to sch 9 of the Poisons Act as a 'drug of addition' for the purposes of that Act. It would then be a 'prohibited drug' for the purposes of the Drugs Act.

41 A critical question at trial was therefore whether the State had established Alpha-PVP to be a 'derivative' of MDPV. While it is used at various points in the SUSMP and other legislation, the term 'derivative' is not a term which is defined by the relevant legislation.

42 The appellants' argument that the evidence did not establish Alpha-PVP to be a derivative of MDPV depends on their submissions as to the proper construction of the term 'derivative' as it appears in the SUSMP.

43 The appellants submit that the term 'derivative' is to be given the meaning set out in the introduction to the SUSMP, and focus on the following language:

It is important to note that a substance is not classed as a derivative on the basis of a single, prescriptive set of criteria. Classification of a substance as a derivative of a scheduled poison relies on a balanced consideration of factors to decide if a substance has a similar nature (e.g. structurally, pharmacologically, toxicologically) to a scheduled poison or is readily converted (either physically or chemically) to a scheduled poison.

44 The appellants submit that the nature of a substance is to be determined after consideration of a number of factors, and not just one particular factor. It is submitted that, under the SUSMP, there are at least three factors to which a balanced consideration must be given to determine similarity: chemical structure, pharmacology and toxicology. They contend that the evidence adduced by the State at trial addressed only the structural similarity of Alpha-PVP and MDPV. They say that there was no expert evidence addressing whether the two substances had similar pharmacology or toxicology. Consequently, on the appellants' submissions, there was no evidence capable of allowing the jury to undertake a balanced consideration of factors to determine whether Alpha-PVP has a similar nature (structurally, pharmacologically and toxicologically) to MDPV.

45 The appellants submit that the SUSMP is to be interpreted by reference to the purpose of the TGA. They point to the object identified in s 4(1)(b) of the TGA to 'ensure the safe handling of poisons in Australia' and the words of s 52AA which indicate that pt 6-3 is aimed at 'minimising the risks of poisoning from, and the misuse and abuse of, scheduled substances'. They also say that this purpose is reinforced by the definition of 'substance' in s 52A(1) as ingredients etc. 'which, or the use of which, may cause death, illness or injury to persons or animals'. The appellants contend that their approach focusses on whether a substance has a similar nature to a scheduled poison or is readily converted to a scheduled poison. They contend that a substance which is structurally similar to a scheduled poison, but which has none of its deleterious poisonous qualities, cannot be said to be of a similar nature to the scheduled poison. The appellants submit that the contrary approach advocated by the State ignores the purpose of the legislation because it focusses only on the process by which a substance is synthesised, or the chemical composition of a substance.

46 The appellants' case turns on acceptance of their proposition that, in all cases, it is necessary to have evidence of the extent of pharmacological and toxicological similarity between two substances to determine whether one is a derivative of the other for the purposes of the SUSMP. In our opinion, that contention must be rejected. In an appropriate case, a conclusion that one substance is the derivative of a scheduled poison can be reached by reference to the structural relationship between the two substances. That is so for a number of reasons.

47 First, the appellants' contention is inconsistent with the natural and ordinary meaning of the term 'derivative' used in a chemistry setting. The Macquarie Dictionary provides the following relevant meaning of the term 'derivative':

6 Chem. A substance or compound made from, or structurally related to, another substance or compound. (emphasis added)

The emphasised words indicate that a conclusion that one substance is a derivative of another may be based on a structural relationship between the substances. Other dictionary definitions to similar effect are set out in the reasons of the Tasmanian Court of Criminal Appeal in Daley v Tasmania.[4]

48 Secondly, the text of the introduction to the SUSMP does not support the appellants' submission that a structural relationship can never, of itself, justify a conclusion that a substance is a derivative of a scheduled poison. The listing of three factors, separated by commas, indicates that those three items are listed as examples of ways in which a substance could be classified as a derivative of a scheduled poison. It is not expressed to be necessary that a relationship be established in relation to each of the elements of structure, pharmacology and toxicology.

49 Further, the three elements are given as examples only. It does not appear from the text of the introduction to the SUSMP that the three factors listed are intended to be an exclusive statement of the ways in which it can be concluded that one substance is a derivative of a scheduled poison for the purposes of the SUSMP. The use of round brackets indicates that the list of examples is not essential to the meaning of the rest of the sentence, which is logically cohesive without the material contained in brackets. The text of the introduction does not indicate that each and every one of the factors listed as examples is required in every case before it can be concluded that one substance is a derivative of a scheduled poison. To the contrary, the introduction says that there is no single prescriptive set of criteria. Consistently with the text of the introduction to the SUSMP, such a conclusion can be reached by reference to one or more of the factors listed as examples, or an entirely different factor not listed in the introductory section.

50 Thirdly, the appellants' submissions incorrectly treat the introductory text as an operative part of the SUSMP. It may be accepted that the introduction to the SUSMP is part of the legislative instrument made under s 52D(2)(b) of the TGA.[5] Clause 2 of the Poisons Standard 2013 provides that the standard consists of the SUSMP 'as set out in Schedule 1'. Schedule 1 includes the introduction to the SUSMP. However, to say that the introduction is part of the legislative instrument does not require the conclusion that it is an operative part. As s 13 of the Acts Interpretation Act recognises, non-operative parts such as titles, headings and preambles, constitute part of an Act.

51 The structure of the SUSMP indicates that the operative parts of the standard are the provisions formally set out in parts and clauses which adopt the familiar legislative drafting style. The narrative introduction is just that: an introduction which explains how and why the SUSMP was made and provides advice as to the reading of the formal legal text.

52 Further, in our view, the reference, in cl 1 of Appendix A to the Poisons Act, to the definitions and interpretation provisions in the SUSMP is to the operative provisions rather than the discursive introduction.[6] Of course, that is not to deny that the introduction remains part of the context in which the incorporated provisions of the SUSMP are to be construed.[7]

53 In this context, the status of the introduction is analogous to that of a preamble to an Act. It is recognised that courts may obtain assistance from a preamble in ascertaining the meaning of an operative provision of an Act, and that the preamble forms part of the context in which the operative provisions are to be construed. However, it has also been said of preambles that:[8]

the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it. And I do not propose to define that expression except negatively by saying (as I have said before) that it is not to be found merely in the fact that the enacting words go further than the preamble has indicated. Still less can the preamble affect the meaning of the enacting words when its own meaning is in doubt.

54 In the present case, the question concerns the meaning of the term 'derivative' as it appears in cl 1(2)(c) of the SUSMP. Attention is appropriately focussed on that provision. The text of the introduction forms part of the context in which cl 1(2)(c) is to be understood, and account may be taken of the introduction in construing the operative provision. However, the natural and ordinary meaning of terms used in the operative parts of the SUSMP should not, in the absence of good reason, be cut down by the text of the introduction. No good reason for doing so is apparent in the present case, where the introduction does not unambiguously indicate that a conclusion that one substance is a derivative of a scheduled poison can never be reached on the basis of the structural relationship between the substances.

55 Fourthly, it is relevant that the SUSMP in general, and cl 1(2) in particular, speaks in the language of chemistry. Substances are generally identified by their chemical names in the schedules to the SUSMP. Clause 1(2) uses a number of technical terms from the science of chemistry, such as 'salt', 'active principle', 'alkaloid' and 'stereoisomer'. Of course, this does not mean that every word in cl 1(2) has a special technical meaning.[9] However, the context in which the term 'derivative' appears strongly suggests that it is used in the sense that it is employed in the science of chemistry. Where a word or phrase has a technical meaning in relation to a particular expertise, and is used in a context dealing with that expertise, it is to be given that meaning unless the contrary intention appears.[10]

56 While determining the meaning of words used in legislation remains a task for the court, evidence is admissible for the purpose of ascertaining the technical meaning of a non-legal term used in a statute.[11] The evidence in this case has been limited to the evidence given by Dr Locos at trial. His evidence, which is discussed in detail below, makes it apparent that, in chemistry, a substance may in some circumstances be classified as a derivative of another by reference to the relationship between their chemical structures. It also appears that whether a particular substance is to be classified as a derivative of another on that basis is a matter of evaluative judgment. That is consistent with the statement in the introduction to the SUSMP that classification of a substance as a derivative of a scheduled poison is not based on any single prescriptive set of criteria.

57 Fifthly, the appellants' submissions are inconsistent with the manner in which the term 'derivative', where it appeared in similar legislation, was construed in Daley. In Daley, the Tasmanian Court of Criminal Appeal was concerned with provisions of the Misuse of Drugs Act 2001 (Tas) (Tasmanian Act) which substantially reproduced the classifications in the SUSMP (rather than incorporating them by reference). The Tasmanian Act prohibited trafficking in a 'controlled substance', which was defined to include a 'controlled drug'. The term 'controlled drug' was itself defined to include a substance contained in a schedule to the Tasmanian Act. Clause 1(c)(ii) in the relevant schedule was in materially the same terms as cl 1(2)(c) of the SUSMP. The term 'derivative' was construed as encompassing a substance that is closely structurally related to another, but excluding such an association that is no more than theoretical.[12]

58 The Tasmanian Act had no equivalent to the introduction to the SUSMP. However, its operative provisions were not materially different from those presently under consideration, and Daley is persuasive authority against the construction advocated by the appellants.

59 Sixthly, the purpose of the TGA is not inconsistent with certain substances being recognised as derivatives of others, in appropriate cases, on the basis of the structural relationship between the substances.

60 It may be accepted that a purpose of the TGA and the SUSMP is to classify potentially harmful substances in a way that can be adopted by legislation regulating or prohibiting their manufacture, sale, possession and use. It may also be accepted that legislative purpose is an important part of the context in which the legislation is to be construed.[13]

61 However, it does not follow from this that the characterisation of one substance as a derivative of a scheduled poison can never be reached on the basis of the structural relationship between the two. These reasons should not be taken to suggest that some degree of structural similarity between substances is necessarily sufficient, of itself, to characterise one as a derivative of the other. Nor should these reasons be taken to suggest that the toxicological or pharmacological effects of the substances are irrelevant to the exercise. Absence of all relevant deleterious qualities may indicate that a degree of similarity in chemical structure is insufficient for the substance to be classified as a derivative of a scheduled poison. However, the legislation does not say that a comparison of chemical structures can never allow a person with knowledge of chemical science to conclude that a substance is a derivative of a scheduled poison.

62 The rules of statutory construction require primary attention to be directed to the text of the relevant provisions,[14] having regard to the language of the statutory instrument viewed as a whole, considered in its context.[15] Having regard to the matters referred to above, the term 'derivative', as it appears in the SUSMP, encompasses substances which are structurally related in a way to be classified as a derivative in chemistry. Proving that one substance is a derivative of a scheduled poison by reason of a structural relationship will ordinarily involve calling a witness with relevant expertise in chemistry to give evidence that a sufficient structural relationship exists for that purpose. In some, perhaps many, cases it may be necessary to call expert evidence from a pharmacologist or toxicologist. However, in an appropriate case, the conclusion that one substance is a derivative of a scheduled poison may be reached on the basis of the structural relationship between the two substances.

63 Dr Locos' evidence did not suggest that Alpha-PVP was derived from MDPV on the basis that one could be made from the other. Rather, his evidence concerned the structural relationship between the two substances.

64 Dr Locos gave evidence that he was an analyst in the illicit drug section of the Forensic Science Laboratory at the Chemistry Centre of WA, where he had worked since June 2009. He held a Bachelor of Applied Science (majoring in chemistry and co-majoring in forensics) and a PhD in organic synthetic chemistry, both from the Queensland University of Technology. Dr Locos had worked as a chemist since graduating in 1998. He was an analyst for the purposes of the Drugs Act and the Customs Act 1901 (Cth). He was a member of the Royal Australian Chemical Institute and the Clandestine Laboratory Investigating Chemists Association (ts 229 - 230, 258 - 259).

65 Dr Locos gave the following evidence in chief:

Now, as part of your expertise are you able to determine if a substance is a derivative of another?---In my expertise? Yes, I am, yes.

And specifically in relation to the substances you deal with at ChemCentre, are you able to determine if one may be a derivative of another?---Yes, I am.

What factors do you take into account when making that determination?---First and foremost because my expertise is in chemistry and organic synthetic chemistry my determination relies heavily on the structure of the – the chemical structure of the compounds in question. Other factors involve us doing reading in peer review journals to get a – a broad sense of other properties of the drugs in question.

.....

Is it possible, in your opinion, to determine if a substance is a derivative of another based on only structure?---We can make a classification to say that this is structurally similar and by that method can say that it's a derivative based upon that. Normally though when we're looking at it we will actually do reading even though it's - you know, we'll look at other journals to find out some of the basic properties. But, yes, we - we can and we'll state that specifically that if we're determining that it's a derivative on structure then that's what we say. (ts 259).

66 Dr Locos then referred to two diagrammatic representations of the chemical structure of Alpha-PVP and MDPV, in the following form (exhibit 27):

67 Dr Locos identified the 1-pentanone and 2-(1-pyrrolidinol) functional groups, which were present in both substances (shown on the right hand side of the chemical diagrams reproduced above).

68 Dr Locos then noted a third functional group which was different in the case of the two substances - 1-(1,3-benzodioxol-5-yl) in MDPV and 1-phenyl in Alpha-PVP. He said that the actual structures of the third functional group in each substance were different, but the overall combination of all three sections made both drugs structurally similar to each other (ts 262). The following exchange then occurred:

Now, based on your examination of the structures, are you able to proffer an expert opinion as to whether one of these substances is a derivative of the other?---I would say that they are structurally similar and based upon that we can say it is a derivative however again, when making a statement as such we will actually look into other readings and try and find more general information about them as well. But structurally we can say that they are similar and if we can't find any other similarities we'll also state that in the statement. (ts 262)

69 Dr Locos gave evidence that Alpha-PVP and MDPV have similar structures and similar properties (ts 262). He said that he was able to say, and did say, that Alpha-PVP is a derivative of MDPV (ts 262 - 263).

70 In cross-examination by Mr Thornton's trial counsel, Dr Locos explained that in chemistry an analogue is a compound that is similar to another, and that an analogue does not have to be a derivative (ts 266, 268). Dr Locos said that it was not unusual for him to be asked to determine whether a substance was a derivative, based only on structure. However, Dr Locos accepted that he would usually look at other sources, and determining whether a substance was a derivative based on structure alone was not something he normally did (ts 266 - 267). Dr Locos said that when he came to write his report in the matter he had a brief search through the literature, but did not cite any literature in his report. He said that in deriving structural similarities between the two compounds, no literature is actually really required (ts 270).

71 Dr Locos was subjected to an unorthodox and at times bizarre cross-examination by counsel for Ms Clegg, who was not counsel in the appeal. It is unnecessary to summarise much of the interchange between counsel and the witness. However, the following relevant evidence which Dr Locos gave in cross-examination may be noted.

72 Dr Locos said that the different third functional groups in Alpha-PVP and MDPV were both aromatic rings. He said that Alpha-PVP had an aromatic ring with only one substitution on it, while MDPV had an aromatic ring with three substitutions on it. He said that the similar structure of the two substances in terms of functional groups and the order of the functional groups made them similar (ts 287).

73 Dr Locos said that there was a cyclic diether, called benzodioxole, in MDPV. He said that removing the cyclic diether from MDPV would result in Alpha-PVP (ts 289, 291).

74 Dr Locos said that he had come to the conclusion that the structures of Alpha-PVP and MDPV were similar, but accepted that 'similar' was an opinion (ts 311). He affirmed that, based on his experience and education as a chemist, Alpha-PVP was a derivative of MDPV (ts 312 - 313).

75 In re-examination, the following exchange occurred between the prosecutor and Dr Locos:

And you have just now at the end of your cross-examination reiterated the view that alpha-PVP is a derivative of MDPV, is that right?---Yes.

So in sum, what is that conclusion based on?---That conclusion is based upon the structural similarity and the other information that I've - I have - general information about MDPV and alpha-PVP and the sum of those two to me suggests that - or it's my opinion therefore that alpha-PVP is a derivate of MDPV.

And that process of gleaning the knowledge that you've mentioned - - - ?

---Mm hmm.

- - - is that something that chemists do as a general - - - ?---As a regular thing?

Yes?---Yes, it is. (ts 315).

76 The principles governing the determination of an appeal on the ground that, having regard to the evidence, a verdict is unreasonable or cannot be supported are well established,[16] and need not be repeated here. Once the appellants' submissions as to the proper construction of the term 'derivative' appearing in the SUSMP are rejected, it is plain that the appeals on this ground cannot succeed.

77 Dr Locos, who was well qualified and experienced in chemistry, gave evidence that Alpha-PVP was a derivative of MDPV and that he could form that conclusion based on the structural relationship between the two substances. The substances shared two functional groups: 1-pentanone and 2-(1-pyrrolidinol). The third functional group in each substance was an aromatic ring, with a cyclic diether present in the case of MDPV but absent in the case of Alpha-PVP. The three functional groups were present in the same order. Dr Locos reached his conclusion by reference to the appearance, in the same order, of two of the same functional groups and one similar functional group. His evidence went beyond merely identifying some degree of structural similarity between Alpha-PVP and MDPV. Dr Locos also had regard to a literature review of the kind regularly undertaken by a chemist. He maintained his position in cross-examination, and his opinion was not contradicted by any other evidence.

78 It was open to the jury to accept Dr Locos' evidence and be satisfied beyond reasonable doubt that Alpha-PVP was a derivative of MDPV and that Alpha-PVP was therefore a prohibited drug. We have reviewed and weighed the evidence at trial. The totality of the evidence does not support a conclusion that the evidence was not sufficient to support the jury's verdict, or that the jury must have had a doubt as to the appellants' guilt, or that it would be dangerous to permit the appellants' convictions to stand. The appeals must therefore be dismissed.

79 We would grant leave to appeal on the sole ground in each appeal, but dismiss the appeals.

[1] Trajkoski v Director of Public Prosecutions  [2010] WASCA 119  [50]; Reid v Director of Public Prosecutions [2012] WASCA 190 [20] and as occurred in Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [4] - [14].
[2] Poisons (Appendix A Amendment) Order 2014 published in the Western Australian Government Gazette of 27 Jun 2014, p 2328-30.
[3] Section 52E(2) and s 52E(3) of the TGA.
[4] Daley v Tasmania [2012] TASCCA 4; (2012) 21 Tas R 247 [10].
[5] Section 13 of the Acts Interpretation Act, which is applied to legislative instruments made under s 52 of the TGA by s 13(1)(a) of the Legislation Act.
[6] It may be noted that the Poisons Standard 2010, which was in force when the current version of cl 1 of Appendix A to the Poisons Act was inserted on 22 October 2010, was in materially the same terms as the SUSMP.
[7] See Reid [198] - [199], per Beech J (McLure P agreeing).
[8] Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436, 463 per Viscount Simonds, cited by Mason J in Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 23.
[9] See The Queen v AL (a pseudonym) [2016] VSCA 156 [10] - [15].
[10] Oliver Jones, Bennion on Statutory Interpretation (6th ed, 2013), section 365, page 1073.
[11] See the cases referred to in Re Michael; ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511 [100] - [107], a case where it was not established that the relevant terms had uniform, certain and established meanings. See also, the discussion in DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th ed, 2014) 4.17. Reference was made to evidence in Daley [22] - [23]. In McEwen v The Queen (1998) 99 A Crim R 421, 437 - 438, Smart J, with whom Hunt CJ at CL agreed, recognised that expert evidence was to be considered in considering the meaning of the term 'structurally derived' in drugs legislation. In Australian Competition and Consumer Commission v Dateline Imports Pty Ltd [2014] FCA 791; (2014) 143 ALD 136 [227] - [229] the Federal Court had regard to evidence, as well as dictionary definitions, in considering the meaning of 'derivative' in a predecessor to the SUSMP.
[12] Daley [12], [13], [30].
[13]Section 15AA of the Acts Interpretation Act 1901 (Cth); s 18 of the Interpretation Act 1984 (WA); Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [24]; AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390 [10].
[14] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39].
[15] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].
[16] See, for example, Gallager v The State of Western Australia [2016] WASCA 54 [22] - [24].