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legal flaws mean designer drug (MDEC) not "border controlled"

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Thought this was worth sharing/discussing. Headline from the Canberra Times

http://www.canberratimes.com.au/act-news/drug-importation-trial-collapses-legal-flaws-mean-designer-drug-is-not-border-controlled-20150717-gielrw.html


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Drug importation trial collapses, legal flaws mean designer drug is not 'border controlled

By CHRISTOPHER KNAUS
A significant drug importation case against a Canberra man has collapsed, exposing flaws with Commonwealth law that prevented a designer drug from being treated as "border controlled".

The jury were directed to acquit Peter Edward Poulakis, 26, on Friday, a course that an ACT Supreme Court judge acknowledged may seem "a little unusual and perhaps even disturbing".

"But the law is the law, and we apply the law very strictly in relation to criminal matters," Chief Justice Helen Murrell said.

Mr Poulakis was on trial for aiding and abetting the importation of six large packages of drugs into Australia from the USA and China between June and August last year.

He was allegedly having marketable quantities of drugs sent to hotels along Northbourne Avenue, using the fake identity of "Jason Causer" to pick them up.

But an unexpected move by his defence led by barristers John Nicholson, SC, Duncan Berents, and solicitor Michael Kukulies-Smith saw the Crown's case unravel this week.

The Crown had charged Mr Poulakis with helping to import an analogue, or a slightly tweaked version, of a drug listed as "border controlled".

That analogue was MDEC, a variation on the border controlled drug butylone, which has similar effects to MDMA.

The case came undone, however, because federal law bizarrely states that a substance cannot be treated as an analogue if it is itself named in either the Commonwealth's list of "controlled drugs" or "border controlled drugs".

MDEC is named in Australia's list of "controlled drugs", and so Mr Nicholson argued the law meant it could not be defined as an analogue of the "border controlled drug" butylone.

That led to the strange conclusion that MDEC could not possibly be a border controlled drug, meaning there was no way Mr Poulakis could be found guilty of the offences.

The Crown had tried to argue that the law was ambiguous and the court should infer that such a situation cannot have been the intention of the parliament.

But Chief Justice Murrell said the law was clear, and told the jury they must acquit Mr Poulakis on two counts.

Earlier this week, the jury were also told to acquit Mr Poulakis on a further four counts, two of importing cocaine, and another two of importing MDEC in June last year.

That occurred after Mr Nicholson convinced the court that there was no evidence that Mr Poulakis had known the four drug packages he was picking up in June contained imported drugs, as opposed to ones sent from within Australia.

The Crown had spent more than a week leading its case against Mr Poulakis in the ACT Supreme Court.

The prosecutor told Chief Justice Murrell her office would be "very interested" to read the reasons for ruling that MDEC could not be treated as an analogue of a border controlled drug.

Mr Poulakis was allowed to walk free.

He had faced a maximum of 25 years behind bars.

Each package of MDEC contained more than 200 grams, while the two packages of cocaine each weighed close to 100 grams.

Chief Justice Murrell thanked the jury, noting the case had been interesting, and encouraged them to read her decision when it was published.

Edited by BeerAlternative
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If MDEC is a controlled drug as stated in the article, how did he get let off? Fair enough he could argue its not an analog because its named in the list of controlled drugs, couldn't the charges be amended to importing a controlled drug?

The whole premise behind how he got off seems very odd.

He got off after being found with 2 packages of cocaine at 100g each??? Is he an AFL football player or TV personality or something?

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^^^ sounds like he got out of an importing charge by arguing that he didn't know the cocaine he was buying would be sent from overseas.

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As he was not charged for the cocaine either, does that mean the prosecutor included that in the analogue charge.

I'm really not sure but dont think this does mean it is not border controlled. I think he still may have been able to be charged under a different act.

Either through laziness, oversight or unaware as the analogue laws are fairly new I think the prosecutor just made the wrong charge. In guessing that I also assume that there must be some law to stop them recharging him.

Hopefully T will chime in as he has been able to break similar stuff down really well in a form I can actually digest.

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Mmmmm, drugs are bad. Mmmkay.

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I think the Ban Man is on the right track.

It seems like a simple case of incorrect definitions at the time he was charged. It's not really that unusual either, many cases are thrown out because the terms on the charge sheet have been worded incorrectly.

He was fucking lucky though, the MDEC charges seemed to be mishandled but the cocaine charges seemed like they could be challenged. It all comes down to the wording on the charge sheet and if they (police) fuck that up then it's almost impossible to challenge the charges under a different point of law.

It seems like he was blessed by the efforts of incompetent/overworked police.

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