Tuesday, 2 February 2010

R v Rekhviashvili: separate packages of drugs

The first criminal case for the year has been handed down by the Court of Appeal.

R v Rekhviashvili considered the operation of provisions which allow different drugs (or different types or purities of the same drug) to be added together for the purposes of calculating traffickable quantities under s 70 of the Drugs, Poisons and Controlled Substances Act 1981.

Specifically, columns found in Part 3 of Schedule 11 of the Act create statutory large commercial quantities and commercial quantities of a drug where the drug has been mixed with another substance (a 'cutting agent').

The appeal originally stated a ground that the different packages and locations (within the same room) that the drugs had been found prevented them from being added together for these calculations. Counsel abandoned this argument, leaving the Court's comments on the subject dicta only.

Neave and Bongiorno JJA,

26 Further, although it is unnecessary to decide the question for the purposes of this case, we do not consider that the fact that the drugs were contained in separate plastic bags and foils would preclude the application of Part 3.

27 In our view the word ‘mixture’ in Part 3 of Schedule 11 is apt to describe the situation where a mixed substance containing the drug is found in a number of separate bags or other containers (as was the case here). If this were not the case the provisions dealing with a mixed substance could be avoided by the simple expedient of dividing the substance containing a drug of dependence into separate packages, the weight of each of which is less than a traffickable quantity. Such an approach could also exclude application of the mixture provision where the drug possessed by the offender is in several forms, for example in a liquid, as crystals and in tablets.

How far this reasoning stretches is unknown. Would it apply to, say, drugs which were found in a house but also to drugs found in a car on the same property? Possibly so.

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