Drug analogues and substantial similarity, views of an expert witness

Abstract

Expert witnesses have an important role to play in assisting judges and juries to make informed decisions in court. They are to provide assistance to the decisions makers, not to confuse them. Difficult legislation does not help to give clear and precise opinions. The author has appeared as an expert witness in a number of cases concerning chemicals that may be considered as illicit if they are considered to be analogues of and/or substantially similar to known banned chemicals as outlined in the Commonwealth Criminal Code. This is a personal view based on appearing as an expert witness for the Commonwealth Department of Public Prosecutions in court proceedings. The author also draws on his experience as a Specialist Member of the Administrative Appeals Tribunal considering evidence from expert witnesses. The key issues for this review are what is a ‘drug analogue’ and are two or more chemicals ‘substantially similar’ in structure?

Keywords:

• drug analogues
• substantial similarity
• Criminal Code
• addition
• Nexus
• amphetamines
• cathinones
• experts

Acknowledgements

The author gratefully acknowledges the many CDPP people that he has dealt with in connection with expert witnessing. They have provided him with much valued advice and enabled him to clarify many issues regarding drug analogues.