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Whillans v The Commissioner of Police[2018] QDC 40

Whillans v The Commissioner of Police[2018] QDC 40

DISTRICT COURT OF QUEENSLAND

CITATION:

Whillans v The Commissioner of Police [2018] QDC 40

PARTIES:

MARK ALEXANDER WHILLANS

(Appellant)

v

THE COMMISSIONER OF POLICE

(Respondent)

FILE NO/S:

1894/17

DIVISION:

Criminal

PROCEEDING:

Section 222 Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

20 March 2018

DELIVERED AT:

District Court, Brisbane

HEARING DATE:

16 February 2018

JUDGE:

Butler SC DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – Justices Act 1886 (Qld), s 222 – where appellant convicted of an offence under section 146(3) of the Health (Drugs and Poisons) Regulation 1996 (Qld) – prescribing restricted drugs without being endorsed under the regulation to prescribe the restricted drugs – whether appellant endorsed to prescribe restricted drugs – construction of sections 146(3) and 161 of the Health (Drugs and Poisons) Regulation 1996 (Qld).

Acts Interpretation Act 1954 (Qld) s 32

Robinson Helicopter Co Inc v McDermott [2016] HCA 22, considered

COUNSEL:

A O'Brien for the appellant

S Gallagher for the respondent

SOLICITORS:

Bosscher Lawyers for the appellant

Office of the Director of Public Prosecutions for the respondent

  1. [1]
    This appeal pursuant to s 222 of the Justices Act 1886 (Qld) is brought against the appellant’s conviction under s 146(3) of the Health (Drugs and Poisons) Regulation 1996 (Qld) (“the Regulation”) for having prescribed restricted drugs without being endorsed under the Regulation to prescribe those drugs.
  1. [2]
    It is not in dispute that the appellant, a registered medical practitioner, did issue prescriptions for the restricted drugs, Diazepam and Methoxyflurane, to a person not his patient. Resolution of the appeal turns on a question of law. The appellant contends that on a true construction of the Regulation he, being a doctor, fell in a category of persons authorised to prescribe restricted drugs and was therefore under the Regulation endorsed to do so, with the consequence his act did not breach s 146. The prosecution submit that prescription of restricted drugs to a non-patient was not authorised under the Regulation and constituted a breach of s 146.

The facts

  1. [3]
    The appellant pleaded not guilty before the Magistrate. The primary facts were proven through joint admissions by the parties in the Magistrates Court. As those admissions by the appellant’s solicitor were based on concessions made by the appellant during an undisputed police record of interview,[1]it can be accepted they were made with the ostensible authority of the appellant.
  1. [4]
    The appellant was a medical practitioner who received a request by text from an associate representing himself to be a paramedic. The request was for a script for Diazepam tablets to be faxed to a New Farm pharmacy. The request read:

“Is it possible to have a script for Diazepam tabs, 5mg sent through to New Farm pharmacy. Mine are out of date and I threw the last ones out two weeks ago. One of the bosses has some back – bad back spasm that I would like to settle down and replace with my kit – in my kit.”

  1. [5]
    A further message sought a prescription for Methoxyflurane inhalation. The appellant faxed to the pharmacy two prescriptions for the requested drugs and they were subsequently filled.

Magistrate’s Decision

  1. [6]
    The learned Chief Magistrate identified that the only real issue for determination was the effect of s 146(3) of the Regulation.[2]That section made it an offence to prescribe restricted drugs but with the qualification: “unless the person is, under this regulation, endorsed to prescribe…the drug”. His Honour referred to that qualification and held that the endorsement is to be found in s 161 which “requires the types of drugs referred to in the scheme to be prescribed if the doctor is satisfied that a person being treated by the doctor needs a restricted drug for a therapeutic use.”[3]
  1. [7]
    The learned Chief Magistrate found the appellant guilty because:

“… by prescribing the restricted drugs referred to in the Regulation, to a person other than a person he was endorsed to dispense them to, means that he has breached s 146(3).”[4]

Appeal principles

  1. [8]
    An appeal to the District Court under s 222 of the Act is an appeal by way of rehearing. The task of an appellate court in conducting an appeal by way of rehearing was recently explained by the High Court in Robinson Helicopter Co Inc v McDermott as follows:

“A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law.”[5]

  1. [9]
    The judge should, having regard to the evidence led before the Magistrate and “paying due regard to the advantage the learned Magistrate had in seeing the witnesses give evidence, determine for himself the facts of the case and the legal consequences that follow from such findings of fact”.[6]

Grounds of appeal

  1. [10]
    The appellant’s grounds of appeal are as follows:

“1.The verdict is unreasonable or cannot be supported having regard to the whole of the evidence;

  1. The Magistrate erred in finding that section 146 (3) of Health (Drugs and Poisons) Regulation (1996) should be read in conjunction with section 161 of Health (Drugs and Poisons) Regulation (1996).”[7]

The legislation

  1. [11]
    The charge is brought under section 146(3) of the Regulation. As the offence is alleged to have been committed on 30 September 2015, the applicable law is to be found in the legislation in force on that date.
  1. [12]
    Section 146(3) relevantly provided:

“146Endorsement needed for restricted drugs

…

  1. (3)
    A person must not dispense, issue, prescribe, purport to prescribe or sell a restricted drug unless the person is, under this regulation, endorsed to dispense, issue, prescribe or sell the drug.

Maximum penalty—60 penalty units.”

  1. [13]
    It is common ground that the appellant did prescribe restricted drugs. However, the section exempts a person from criminal responsibility if the person was endorsed under the regulation to prescribe the drug. It follows that the prosecution must prove beyond reasonable doubt the appellant was not endorsed to prescribe the relevant drugs.
  1. [14]
    The term “endorsement” was defined in the Dictionary (Appendix 9) to the Regulation as follows:

“Endorsement means any of the following –

  1. (a)
    an authority;
  1. (b)
    an approval;
  1. (d)
    a drug licence;
  1. (e)
    a wholesale representative license;
  1. (f)
    a poison licence;
  1. (g)
    a cyanide permit;
  1. (h)
    a strychnine permit.”
  1. [15]
    The term “endorsed” is to be read as having a corresponding meaning to the definition of “endorsement”.[8]
  1. [16]
    The terms “authority” and “approval” were defined in the Dictionary (Appendix 9):

“Authority means an authority a person has under this regulation –

  1. (a)
    because of the person’s occupation; or
  1. (b)
    because the person holds an office.

Examples of occupations –

Doctor, dentist, midwife,

Examples of officers –

Person in charge of a base of the Royal Flying Doctor Service of Australia, general manager of a prison.”

“Approval means an approval given by a chief executive under this regulation, for a person to do a thing.”

  1. [17]
    The Regulation was structured as follows:

“Chapter 1.Introduction

Chapter 2.Controlled drugs

Chapter 3.Restricted drugs

Chapter 4.Poisons

Chapter 5.Miscellaneous”

  1. [18]
    Chapter 3 which deals with restricted drugs was structured as follows:

Part 1.Licences.

– This part regulates manufacturing and wholesaling licences for restricted drugs.

Part 2.Endorsements

– This part commences with Division 1 headed ‘Preliminary’. Division 1 contains only one section, s 146 ‘Endorsement needed for restricted drugs’.

– Division 2 deals with licensed wholesale representatives.

– Division 3 is headed ‘Particular endorsements’. It lists 43 occupational groups and states the limits of each occupation’s authority to deal with restricted drugs. It includes s 161 in respect of doctors.

– Division 4 headed ‘General’ contains one section, s 183, ‘When endorsement is not needed’.

  1. [19]
    Section 146 proscribed the possession, obtaining, dispensing, issuing, prescribing, administering or destruction of a restricted drug by a person unless the person is endorsed to do so to so act under the Regulation. Breach of this requirement is an offence.
  1. [20]
    Section 183 stated circumstances in which an endorsement is not required. It provided that there was no need for an endorsement in order to deliver a restricted drug to a person to whom it has been dispensed, or for a carer to assist a patient to take their prescribed medicine or to deal with the drug for the purpose of an approved clinical trial.
  1. [21]
    Section 161 fell in Division 3, ‘Particular endorsements’. It read:

“161Doctors

  1. (1)
    To the extent necessary to practise medicine, a doctor is authorised to—
  1. (a)
    obtain a restricted drug; or
  1. (b)
    possess a restricted drug at a place occupied by the doctor; or
  1. (c)
    if the doctor is reasonably satisfied a person the doctor is treating needs a restricted drug for a therapeutic use as part of the person’s medical treatment—
  1. (i)
    administer the drug to the person; or
  1. (ii)
    dispense or prescribe the drug to or for the person; or
  1. (iii)
    supply the drug to or for the person; or
  1. (iv)
    obtain the drug for the person; or
  1. (d)
    give someone who may administer or supply a restricted drug an oral or written instruction to administer or supply the drug.
  1. (2)
    A doctor is authorised to obtain, possess or use a restricted drug, other than a regulated restricted drug, for a genuine research or teaching purpose.”

Appellant’s submissions

  1. [22]
    It is submitted by the appellant that he did not breach s 146(3) of the Regulation because he was a person who “is, under this Regulation, endorsed to … prescribe the drug”. He reasons thus:

“(a) ‘Endorsed’ derives its meaning from the defined term ‘endorsement’. Accordingly, a person who ‘is, under this Regulation, endorsed’ must be a person who holds, under the Drugs and Poisons Regulation, an ‘endorsement’.

  1. (b)
    An ‘endorsement’ includes an ‘authority’ (see the definition of ‘endorsement’). Accordingly, a person who holds an authority will also hold an endorsement.
  1. (c)
    A doctor is a person who holds an authority under the Drugs and Poisons Regulation (see the definition of ‘authority’ and s 161 which describes what a doctor is authorised to do with respect of restricted drugs).
  1. (d)
    A doctor is therefore a person who holds an endorsement under the Drugs and Poisons Regulation.
  1. (e)
    The appellant was at all material times a doctor, being a registered general medical practitioner (see the definition of ‘doctor’ in the Acts Interpretation Act 1954 (Qld)).
  1. (f)
    Therefore the appellant was a person who held an endorsement under the Drugs and Poisons Regulation or, stated in the language of s 146(3), was person who ‘is, under this Regulation, endorsed… to… prescribe… [restricted drugs]’.”[9]
  1. [23]
    Accordingly, it is submitted on behalf of the appellant that the learned Chief Magistrate erred in his construction of the Regulation and his order should be set aside and a verdict of not guilty entered.
  1. [24]
    The appellant’s argument relies on the proposition that as a doctor he was authorised to deal in certain ways with restricted drugs, and as the definition of “endorsement” included “an authority”, then it follows a doctor holds an endorsement for the purpose of s 146. This reasoning would apply equally to a member of any of the other 42 occupational groups specified in Chapter 3, Part 2, Division 3.
  1. [25]
    The argument is further developed in the following passage from the appellant’s outline:

“Section 146(3) should be understood as prescribing the category of persons who are entitled to engage in certain dealings with (including the prescription of) restricted drugs.

Exemption from the offence (‘unless the person is, under this Regulation, endorsed…’) applies to a category of persons who meet specified criteria. That exemption does not operate with respect to whether a person’s conduct meets specified criteria (for example, ‘unless the person, under this Regulation, prescribes the drug’).

The heading of s 146 ‘Endorsement needed for restricted drugs’ suggests that the purpose of the provision is to require a person to hold an endorsement to be permitted to deal with restricted drugs. It does not suggest the provision has any purpose in connection with compliance with the terms of an endorsement.”[10]

  1. [26]
    The appellant deals with the limited operation this interpretation gives s 146 by drawing attention to s 21 of the Regulation. That section makes it an offence for the holder of an endorsement to contravene a condition of the endorsement. It is submitted that by virtue of the definition of “endorsement” the phrase “a condition of the endorsement” also means “a condition of the authority” and consequently an allegation that the limits of authority available to a doctor under s 161 have been exceeded may be prosecuted under s 21, but not under s 146.

Consideration

  1. [27]
    It is apparent from the definition of “endorsement” in the Dictionary,[11]the term endorsement may take a number of different forms.
  1. [28]
    An “authority” differs from other categories of endorsement, namely approvals, licences or permits, as those other endorsements are all granted by decision of the chief executive. Chapter 1, Part 5 deals with the grant of those other forms of endorsement.
  1. [29]
    Under Part 5 a person may apply for the grant or renewal of an endorsement: Section 17. The grant or renewal of an endorsement that is a drug licence, a poison licence, a treatment approval or a wholesale representative licence is specifically referred to in s 18 and s 19. The chief executive will consider the suitability of an applicant to hold or to be granted an endorsement: Sections 15 and 16. An endorsement may be granted by the chief executive with or without a condition: Section 18. Under section 21 the holder of an endorsement must not contravene a condition of the endorsement. Sections 23 to 25A deal with suspension or cancellation of an endorsement by the chief executive. That the holder of an endorsement has breached a condition stated in the endorsement may constitute grounds for suspension or cancellation: Section 23(d).
  1. [30]
    Unlike those categories of endorsement granted on application by decision of the chief executive, an authority is held under the provisions of the Regulation because of the person’s occupation or office. For restricted drugs these “particular endorsements” or authorisations are set out under occupation or office headings in Chapter 3, Division 3, sections 155 to 181. For each occupation or office the limits of the authority to deal with restricted drugs by a person holding the specified occupation or office are particularised.
  1. [31]
    The logic of the structure of the regulation supports a conclusion that the offence provisions in s 146, falling as they do in Chapter 3, Part 2 ‘Endorsements’, are intended to regulate conduct falling outside what is approved under that Part for a particular occupation or office to undertake. A similar structure for dealing with authorisations by way of occupation or office is to be found in Chapter 2, ‘Controlled drugs’.
  1. [32]
    It follows that the term “endorsed to prescribe” in s 146(3) refers to conduct authorised under a ‘particular endorsement’ in Chapter 3, Division 3. In the case of doctors, this is an authorisation under s 161.
  1. [33]
    Contrast Chapter 1, Part 5 which deals with endorsements granted by decision of the chief executive. The structure of that part supports the view that the offence provision in s 21 requires compliance with conditions imposed on or attached to a licence or approval granted by the chief executive under that Part. As conceded in the appellant’s outline, s 21 is clearly referable to conditions imposed by the chief executive on an endorsement. In my view, to seek to extend the meaning of the phrase “condition of an endorsement” in s 21 to include the terms of the legislative authorisations by occupation or office in Chapter 3, Part 2 is inconsistent with the structure and intention of the Regulation.
  1. [34]
    When s 146 is read in the context of the legislation as a whole, it ought to be construed as proscribing conduct by a person where the act of the person falls outside conduct permitted under the terms of the authorisation provided to the person’s occupation or office under Chapter 3, Part 2, Division 3 of the Regulation. In the case of a doctor that means conduct authorised under s 161.
  1. [35]
    In this case the appellant, as a medical practitioner, was only authorised under s 161 to prescribe restricted drugs to a person he was treating. On the agreed facts the appellant did not issue the prescription to or for a person he, as a doctor, was treating.
  1. [36]
    Accordingly, I am satisfied the prosecution has proved beyond reasonable doubt all the elements of the offence charged. Following an independent review I have reached the same conclusion on the law and facts as the learned Chief Magistrate. The appellant has failed to make out either ground of appeal.
  1. [37]
    The appeal is dismissed.

Footnotes

[1]See Table of Evidence Supporting Admissions, which identifies corresponding concessions in the Record of Interview.

[2]Transcript of Decision 3 May 2017, p 2, ll 7-9.

[3]Transcript of Decision 3 May 2017, p 4, ll 15-22.

[4]Transcript of Decision 3 May 2017, p 4, ll 27-33.

[5][2016] HCA 22 at [43].

[6]Forrest v Commissioner of Police [2017] QCA 132 at p.5

[7]Appellant’s outline of submissions, [54].

[8]Acts interpretation Act 1954 (Qld) s 32.

[9]Appellant’s outline of submissions, [38].

[10]Appellant’s outline of submissions, [41]-[43].

[11]Appendix 9.

Close

Editorial Notes

  • Published Case Name:

    Whillans v The Commissioner of Police

  • Shortened Case Name:

    Whillans v The Commissioner of Police

  • MNC:

    [2018] QDC 40

  • Court:

    QDC

  • Judge(s):

    Butler DCJ

  • Date:

    20 Mar 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Forrest v Commissioner of Police [2017] QCA 132
1 citation
Jump To
Cite 1 - [2017] QCA 132
Robinson Helicopter Company Incorporated v McDermott & Ors [2016] HCA 22
2 citations
Jump To
Cite 1 - [2016] HCA 22
Cite 2 - [2016] HCA 22

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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