Written by John Sutton
September 2, 2014
Two weeks ago a District Court Judge found two men not guilty of all charges in New South Wales’s first major drug analogue case. The defendants were represented by Armstrong Legal.
The drug analogue provisions are an interesting area of law. They were developed in an attempt to keep one step ahead of clandestine chemists.
The Drug Misuse and Trafficking Act NSW contains a schedule of numerous prohibited drugs. Any substance on that list is illegal to possess, manufacture or supply.
However, relying on the list alone leaves a gaping loophole. Chemists can slightly modify the structure of molecules so that they are no longer one of the listed drugs, but have the same or similar effect.
In order to keep one step ahead of the chemists, the law contains an analogue provision. That provision says that chemicals obtained by certain structural modifications to the listed drugs are also illegal.
At the time of the charges against these defendants the prosecution also needed to prove that the analogue had ‘psychotropic effects’. The law has now been amended so that no longer needs to be shown.
The charges in this case related to an herbal incense business operated in 2011 and 2012. The defendants were selling a product containing the chemical UR-144. At that time UR-144 was widely used throughout the industry and believed by all to be legal. Two separate law firms even provided written advice confirming its legality.
Believing that the product was legal, the defendants made no secret of what they were selling. They were very surprised when the Police raided their offices, seized all of the stock and charged them with supplying a prohibited drug. If found guilty, they faced imprisonment for life. Armstrong Legal worked closely with three leading Professors of Chemistry, each of whom expressed a view that UR-144 was not captured by the analogue definition. Several pharmacologists also expressed doubt whether it could be proven that the substance was psychotropic.
Ultimately the Judge agreed. He dismissed the charges because there was no evidence that UR-144 was psychotropic.
This case highlighted a whole number of issues about the criminal justice system, but one stands out in particular. That is, the law needs to be clear. People must be able to know where the line is drawn, and should only be charged if they cross that line.
The analogue provisions fail to meet this test. They are poorly drafted. At times they do not use proper chemistry terminology. The fact that different experts have different views about whether certain substances are captured demonstrates this lack of clarity. The defendants in this case went to great lengths to ensure that they obeyed the law. Ultimately the Court has confirmed that they did not cross the line. Unfortunately, they were put through two years of anxiety before justice was done.
The defendants are no longer involved in the herbal incense business. They ceased trading once it was alleged that their product was illegal. Given the fact that they were always upfront about their desire to sell a legal product, this was a case where a warning from the police may have sufficed and saved a great deal of costs to both the defendants and the public.