S supplied what he said he believed was cocaine to a sex worker who was later hospitalised. The drug was fentanyl, a commercial quantity of which was found at his home. S was convicted of supplying ‘an amount of a prohibited drug which is not less than the commercial quantity applicable …’8 An appeal on the basis of mistaken belief was dismissed.
The ordinary principles of interpretation apply generally to criminal statutes9. Here the offence provision would be ‘incoherent’ if the phrase ‘the prohibited drug’ meant the drug S believed he had supplied. S only needed to know he was supplying ‘a’ prohibited drug, rather than any ‘particular’ one10.
This principle is from Episode 117 of interpretation NOW!
Footnotes:
8 s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) emphasis added.
9 [4-5] Rohan [2024] HCA 3 [25] cited, cf Herzfeld & Prince [10.90].
10 [20] Tabe [2005] HCA 59 [11], Hamzeh [2022] NSWCCA 232 [53] cited.