Supreme Court of SA|2003-12-23|Before: Besanko JJ, Perry J

QUESTION OF LAW RESERVED (NO 1 OF 2003) No. SCCRM-03-138 [2003] SASC 430 (23 December 2003)

1 PERRY J. This is a case stated by a judge of the District Court who has reserved a question of law relevant to a trial pursuant to s 350(1)(b) and s 351 of the Criminal Law Consolidation Act 1935 ("the ").

2 Stephen Avory was charged upon an information with one count of taking part in the manufacture of methylamphetamine contrary to s 32(1)(b) of the Controlled Substances Act 1984 ("the Act"). The particulars alleged in the information are that on 5 March 2002 at Hackham West and other places [he] knowingly took part in the manufacture of methylamphetamine, a drug of dependence.

4 Before empanelling a jury, the trial judge conducted a voir dire hearing as to the admissibility of certain evidence sought to be led by the prosecution. After resolving the question of admissibility against the accused, discussion then ensued between the trial judge and counsel as to a question of law which was thought likely to arise during the course of the trial.

5 Counsel for the DPP then applied for the case to be stated. That course was opposed by counsel for the accused. After argument, the trial judge resolved to state a case.

6 Subsequently, after the trial judge had drawn up the case, counsel for the accused made a further submission that the trial judge should not refer it. That submission was rejected for reasons ("the reasons") which were published by the trial judge and which have been included in the papers before this Court on the hearing of the case stated.

7 In accordance with s 351(1)(b), the case stated includes a summary of the circumstances out of which the reservation of the case stated arises.

8 The trial judge directed his mind to the question whether or not he should make any findings of fact in accordance with s 351(1)(c), but he ruled that at that stage he could not make any findings of fact for the purposes of that subsection.

9 There was some discussion about that aspect of the matter on the hearing of the case stated. Mr Wells QC for the accused suggested that if the judge could not make relevant findings of fact, the court should not entertain the case stated, which would in those circumstances, he submitted, be directed to a hypothetical question.

11 A case may be stated ahead of a trial or after its completion. In the latter case, a judge may feel able to make findings of fact based on the evidence which has been called at the trial, but even then the findings may not reflect the facts which the jury may have found. One never knows what facts a jury finds, except that where there has been a conviction, one may assume that the jury was satisfied as to the facts necessary to make out the charge.

12 If there was a voir dire, as was the case here, any findings made by a trial judge arising from such a hearing are necessarily provisional only and may be reviewed and revised in the light of the evidence as it emerges at the trial.

13 So that in the case of a jury trial, whether a case is stated before or after a trial, but particularly where it is stated ahead of the trial, it will never be possible for a trial judge to make concluded findings of fact.

14 In this matter, as will be seen, the facts alleged by the prosecution are within a small compass.

15 When the submission was made to the trial judge that any reference would necessarily be hypothetical, he thought that it was "not necessarily" so in the relevant sense, and that in any event, it was for the Court of Criminal Appeal ultimately to decide whether it wished to address the question stated.

16 With respect to him, I think that Mr Wells QC made too much of the issue of whether or not findings of fact should be stated.

17 A case stated ceases to raise hypothetical questions if it is grounded upon facts which are clearly part of the Crown case and supported by the depositions or declarations upon the basis of which the accused was committed for trial.

18 In this case, the trial judge said in his reasons that he had made a Rona direction to preclude the prosecution from using the adjournment to expand its case if that would be unfair to the accused.[1] I assume from that comment that the trial judge extracted an undertaking from counsel for the prosecution that she would not call at the trial evidence beyond that foreshadowed in the depositions, if the trial judge should be of the view that to do so would operate unfairly to the accused.

19 Be that as it may, it is, of course, as the trial judge recognised, always open to this Court to decline in the exercise of its discretion to answer the questions embodied in a case stated, whether on the ground that what is in reality being sought is some sort of advisory opinion, or on any other proper ground.

20 The statement of circumstances made by the trial judge for the purpose of the case stated, which he said he had taken from the depositions and the evidence given on the voir dire, is as follows:

"On 5 March 2002 the police searched a car which was being driven by the accused. In its boot they found a Puma backpack. Contained in that backpack were, inter alia, various flasks, cylinders and jars. In one of the jars was hypo phosphorous acid. In others were nicotinamide. There were also iodine crystals.

Dr Pigou, a forensic scientist, will say that a common method of the manufacture of methylamphetamine uses hypo phosphorous acid and iodine to convert pseudoephedrine into methylamphetamine. Nicotinamide is not used in the manufacture of methylamphetamine, but it is sometimes used as a cutting agent in illicit methylamphetamine preparations. No pseudoephedrine was identified in anything found in the accused's car. On the prosecution evidence not all of the ingredients required for the manufacture of methylamphetamine were found in the accused's car, but only some of them. There is no evidence that the accused had taken part in the completed manufacture of any methylamphetamine or that what was found in the accused's car was part of any larger, current or future, operation for the manufacture of methylamphetamine."

21 Having regard to that factual background, the trial judge was confronted with a situation in which it is almost inevitable that at some stage of the case he would have to rule, either for the purposes of dealing with a no case submission or for the purpose of summing up to the jury, on a difficult and complex question of law. That question involved the need to consider a line of authority which has been established in New South Wales, which was arguably inconsistent with certain authorities decided by this Court.

22 The trial judge explained the matter in this way in his reasons:

"2. It was clear to me from the outset that if the prosecution case substantially established the matters contained in the depositions, the accused would submit at the close of the prosecution case on the authority of a decision of the Court of Criminal Appeal in New South Wales of R v BD,[2] and other New South Wales authorities which have followed and applied it, that the Crown case could not amount in law to the offence charged or to any available lesser alternative offence and he would seek an acquittal by direction. The prosecutor indicated that she would be submitting that the New South Wales authorities were not good law in this State because of some differences in the relevant legislation or because they were wrong. The point is of some difficulty and complexity, and is of general importance."

"10. ..... I accept that an answer on the case stated may not resolve every question on the topic which may possibly arise in the trial, but it would be likely to dispose of the major issue of the authority in this State of the New South Wales' decisions.

11. I considered that s 350(3) probably would have precluded me from stating a case if I left it until the close of the prosecution case in the trial as that would unduly disrupt the trial and would require the discharge of the jury. (I took a similar view on s 350(3) in R v Hatchard.)[3] There was much less disruption to the trial process, and more utility, in adopting the course which I did. This appeared to be in accordance with the stated intention of Parliament as set out in the above extract from Hansard. It was the earliest time at which it could have been properly done as it was necessary first to resolve the voir dire issues about the admissible evidence."

24 In my view, the absence of factual findings in this case is of no great significance. The circumstances set out pursuant to s 351(1)(b) create a sufficient context for the questions to be understood and answered.

25 The trial judge having conducted a voir dire hearing, where, no doubt, much of the evidence to be led at the trial was sworn to and tested, there seems to me to be no obvious reason why one cannot assume with reasonable confidence that the statement of circumstances set out by the trial judge reflects what is likely to be the substance of the Crown case at trial.

26 It is true that appellate courts have traditionally expressed a reluctance to interfere with or fragment the criminal trial process.[4] Of course, in this case the trial has not commenced. But in this context, it is equally important to avoid undue delay.

27 However, in this case, I do not think that the delay is undue. In any event, the delay has already occurred; the case stated has already been argued.

28 Notwithstanding the traditional reluctance to do so, there have been a number of instances where this Court, ahead of the trial, has either entertained a case stated, or directed that the trial judge state a case.[5] They have generally involved questions of general importance, as well as questions of relevance and importance in the particular trial.

29 In my opinion, the trial judge was right in the view which he took that it was more convenient to state a case at this stage of the trial, rather than to leave the question to be resolved later.

30 I do not think, for example, that it is in the interests of the criminal justice system for an accused to secure an acquittal, either on a ruling of no case to answer or by a verdict of the jury, in circumstances in which it later appears that either in determining the no case submission or in summing up to the jury, the trial judge applied a wrong view of the law.

31 That would not be a satisfactory outcome, in that what may well turn out to be an acquittal which has been wrongly entered, could not be corrected. Where possible, such a result should be avoided.[6]

32 The court was informed by Ms Abraham QC that there are a number of cases coming for trial in the District Court in which similar questions as those posed in this case arise.

33 It seems to me that the argument on the case stated has identified the fact that some guidance for trial judges is necessary as to how they may approach the matters which were agitated in the New South Wales cases, and whether the approach of the courts in that State to the question of what conduct might constitute participating in a step in the process of manufacture, should be followed here.

34 In these circumstances, this Court should entertain the case stated, and do its best to answer the questions in a way which may provide guidance to trial judges in similar cases.

35 The relevant provisions of the Act appear in s 32. They are as follows:

"32 (1) A person must not knowingly-

(a) manufacture or produce a drug of dependence or a prohibited substance; or

(b) take part in the manufacture or production of such a drug or substance; or

(c) sell, supply or administer such a drug or substance to another person; or

(d) take part in the sale, supply or administration of such a drug or substance to another person; or

(e) have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.

(2) ............

(3) ............

(4) Without limiting the generality of this section, a person takes part in the manufacture, production, sale, supply or administration of a drug of dependence or prohibited substance if the person-

(a) takes, or participates in, any step, or causes any step to be taken, in the process of that manufacture, production, sale, supply or administration;

(b) provides or arranges finance for any such step in that process; or

(c) provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which he or she is the owner, or in the management of which he or she participates.

(5) .........." (emphasis added)

36 The questions in the case stated are as follows:

"Do the words 'take part in the manufacture' in s 32(1)(b) of the Controlled Substances Act 1984, include:

(1) acts preparatory to the manufacture of a drug of dependence or a prohibited substance where those acts are done for the purpose of manufacture, and are necessary for such manufacture, but where no subsequent steps in the process of manufacture occur?

and

(2) the transportation of all, or some, of the materials, required for manufacture where they are knowingly intended for manufacture?"

37 The questions in the case stated give rise to the need to consider how far the concept of knowingly taking part in the manufacture or production of a drug or substance contrary to s 32(1)(b) is enlarged by reference to s 32(4)(a) of the Act. More particularly, the question arises, given that the process of manufacture of a drug may be the culmination or end result of activity directed to that end extending over a period of time, as to how far back in the course of that activity one may legitimately go in characterising some part of the activity as the taking of a step in the "process of that manufacture" within the meaning of s 32(4)(a).

38 A similar question has been addressed in the context of selling or taking part in the sale of a drug of dependence or a prohibited substance in two decisions, one of the Full Court and the other of the Court of Criminal Appeal of this Court.

39 The first of them is the decision of the Full Court in DPP Reference No 2 of 1995[7] ("the 1995 reference"). The second of them is the decision of the Court of Criminal Appeal in Questions of Law Reserved on Acquittal (No 1/1996)[8] ("the 1996 reference").

40 The facts in the 1995 reference were that the accused received a telephone call from a person called Plunkett. Plunkett asked the accused to contact an acquaintance of the accused called "Boots". The accused understood that Plunkett wanted to purchase "speed" or amphetamine from Boots.

41 The accused contacted Boots, who came to the accused's house, where he opened a bag of white powder which the accused believed to be speed or amphetamine, which he weighed out on a set of scales which he had brought with him. The accused and Boots then drove to Plunkett's house, where both of them were arrested. Boots was then found to be in possession of the white powder.

42 It is clear from those facts that the case involved a situation in which what was very likely to become a sale of amphetamine was interrupted by the arrest of the vendor and the accused, who clearly was assisting the vendor.

43 Out of those circumstances, the question reserved was:

"Do the words 'take part in the sale' as they appear in s 32(1)(d) of the Controlled Substances Act 1984, require the Crown to establish a completed sale for the purpose of proving the offence charged against the accused?"

44 The judgment of the court was delivered by Williams J, with whose reasons Doyle CJ and Prior J agreed.

45 During the course of his reasons, Williams J made the following observations:[9]

"In my opinion, the offence of 'taking part in the sale' of a substance may be proved without establishing a completed sale; I consider that the intention of Parliament as expressed in s 32(1)(d) was to cast a wide net as regards activities which are to be caught. In circumstances where the relevant knowledge and state of mind be established, it seems to me that the subsection is aimed against all those who may be involved in an operation of the proscribed type irrespective of the success of the participants in effecting actual sales. As well as embracing situations in which a sale has been made, the subsection also applies to activities which precede an actual sale - provided that such an event is in contemplation. Moreover, a person taking part in the sale will include not only the intended vendor but also his or her associates who are, relevantly, participants in the operation or who have the appropriate causal connection therewith.

.... However, it will be necessary for the prosecution, under s 32(1)(d), to demonstrate a sufficient nexus between the accused and the selling operation if participation in an actual accomplished sale itself is not proved. In this way persons who introduce customers to a would be drug dealer may be brought within the ambit of s 32. This was the situation in the case stated.

..............

Every trading situation must have a beginning; therefore, a person who makes the appropriate preparations to do business will be regarded as engaged in 'the sale' of the relevant wares even before the first customer crosses the threshold - if the preparations for the first transaction are sufficiently advanced and identifiable. A failure of the enterprise at this early stage will not alter this characterisation.

...............

At the end of the day, it is the composite phrase 'taking part in the sale of [a substance] to another person' which must be construed. Irrespective of whether a particular purchaser or a range of customers is in prospect, I consider that the requirements of the subsection may be breached by an intending vendor (and his or her associates) without the occurrence of an actual sale if the sale of a drug to another person can be identified as being in train." (emphasis added)

46 Strictly, that case is authority for the limited proposition that one can take part in a sale within the meaning of s 32(4)(a) without proof that a sale eventuated.

47 However, the passages which I have italicised in the judgment of Williams J identify a limit to the extent to which one may go back in identifying within the activities preceding an actual sale, the taking of a step in the sale or the process of the sale within the meaning of s 32(4)(a). That limit is to be found in the words "provided that such an event [a sale] is in contemplation"; "a sufficient nexus"; "if the preparation for the first transaction [a sale] are sufficiently advanced and identifiable"; and "... if the sale of a drug to another person can be identified as being in train".

48 A similar question arising in a somewhat different context arose in the 1996 reference.

49 Once again, Williams J wrote the substantive judgment of the Court, Doyle CJ and Lander J agreeing with him.

50 The case concerned the activities of three men, Leo, Morgan and Talbot. The relevant facts appear from the following passage in Williams J's judgment:

"Upon the prosecution case, Leo arranged with Morgan to bring 3 lbs of methylamphetamine to Barmera for the purpose of selling it to Morgan. Talbot arranged with Morgan to purchase from him 1 lb of the drug from this bulk supply. Thereafter the police intervened at Barmera and arrested all three men before the transaction proceeded. Leo was in possession of the bulk supply at Barmera upon his arrest.

By reason of the sheer size of Talbot's order (in terms of quantity) coupled with his history of selling drugs, the prosecution sought to draw the inference that Talbot intended to on-sell to some person or persons unknown. The prosecution case as regards the proposed arrangements (as well as Talbot's history in the trade) was based upon telephone interceptions.

In concluding that this evidence did not raise a case to answer the learned trial judge decided that Morgan and Talbot were not shown to have taken part in the sale of a drug to another person. His Honour's view was that whilst the possibility of future sale by Talbot may have been within contemplation, no specific future sale by Talbot could be identified."

51 The questions of law posed in the 1996 reference were whether a purchaser of a prohibited substance or drug of dependence for the purpose of future sale could be guilty of an offence under s 32(1)(d); whether a person who takes steps to purchase a prohibited substance or drug of dependence for the purpose of future sale is guilty of an offence against the subsection; and whether it was necessary for the prosecution to identify a specific future sale in order to prove such an offence.

52 The first two questions were answered "yes" and the third question "no".

53 In the course of his reasons, Williams J expressed the view that it would have been open on the facts for a jury to draw the inference that the considerable quantity of the drug ordered by Morgan was destined for sale by Talbot:

"... in a manner which may not yet have been determined when they were arrested".

54 He further commented that the circumstances suggested:

"... that Leo, Morgan and Talbot were all participants in the trading operation to supply Talbot with stock in trade which was then destined to be disposed of by him."

"A jury was entitled to conclude that such a trading operation was in contemplation irrespective of whether or not Talbot had customers."

"In 1995 Reference this Court observed that in order to establish an offence against s 32(1)(d) it was unnecessary for a sale of the drug to have actually occurred if a sale was in train or in contemplation. These remarks were made in the context of the factual situation then before the court but I consider that they are of general application. In the case of a trader who has ordered and taken steps to procure stock, sales to unknown persons are sufficiently in contemplation to bring the trader within the grasp of the subsection. As I have said previously the quantity of the drug which is involved may point to a person being a trader; alternatively his or her previous drug dealings may provide the evidence."

57 He concluded that the trial judge in that case had erred by failing to recognise:

".. that the placing of an order for such a large quantity of drug by a drug trader was entitled to be treated as evidence of a step in a commercial enterprise as part of a process of future sale." (emphasis added)

58 Pausing there, it seems to me that in both the 1995 reference and the 1996 reference the conclusion that the accused was participating in a sale for the purposes of s 32 was predicated upon proof of facts capable of sustaining the inference that the relevant conduct occurred in the course of a sale which was under way, or in the course of an existing trading operation directed towards effecting a sale or sales.

59 By analogy to the two "sale" cases to which I have referred, Ms Abraham QC, who appeared for the DPP on the hearing of the case stated, contended that even absent any evidence of an established process of manufacture of illicit drugs, evidence of the taking of an initial preparatory step such as buying equipment of chemicals with a view to utilising them in a manufacturing process would be sufficient, provided that the intention was ultimately to use the articles in such a manufacturing process.

60 For reasons which I will come to, in my view that contention is not supported by the sale cases and would widen the ambit of the application of s 32(4) beyond the limits to which, upon a proper construction of the subsection, it should be confined.

62 The New South Wales cases turn on the construction and application of s 6 of the Drug Misuse and Trafficking Act 1985 (NSW). That section is the analogue of s 32(4) of the Act and its provisions are indistinguishable for present purposes from s 32(4).

"6 Meaning of 'take part in'

For the purposes of this Act and the regulations, a person takes part in the cultivation or supply of a prohibited plant or the manufacture, production or supply of a prohibited drug if:

(a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply,

(b) the person provides or arranges finance for any such step in that process, or

(c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates."

64 In Thomas,[11] police officers found what was described as a "fully operational laboratory" in premises occupied by the appellant. It was common ground that in the laboratory the appellant has produced a quantity of a chemical known as P-2-P. It was common ground also that methylamphetamine may be produced by a process which uses P-2-P as a raw material. Indeed, it appeared that the normal method of producing methylamphetamine is to use P-2-P with a reagent.

65 The court held, dismissing an appeal against the conviction, that the manufacture of a product which although marketable in the state in which it is manufactured, but which is intended to be used in the process of the manufacture of an illicit substance may, depending on the circumstances, properly be regarded as a step in the manufacture or production of the illicit substance. The court rejected the argument of the appellant in that case that the manufacture of methylamphetamine had not begun but that the appellant had simply equipped himself with the materials necessary to undertake such a process at some future time.

66 In the course of his judgment, with which Cripps JA and Allen J agreed, Gleeson CJ observed:[12]

"Where, as the Crown alleged to be the case here, a person manufactures something with a view to going on to use it in the manufacture of a desired end product then it is normally proper to regard that as a step in the process of manufacturing the end product. The fact that the process is interrupted at an intermediate stage does not take the case outside the terms of s 6 of the Act."

"It is to be noted at the outset that the concept of taking a step in a process of manufacture appears, in s 6 of the Act, in a context which manifests a legislative intention that is inconsistent with any narrow or pedantic approach to the description of activities connected with bringing prohibited drugs into existence. Paragraphs (b) and (c) of s 6 demonstrate that."

68 In BD[14] the Court of Criminal Appeal of New South Wales considered a question of law submitted by the DPP following the acquittal of the respondent on a charge of knowingly taking part in the manufacture or production of methylamphetamine.

69 On the evidence led by the Crown at the respondent's trial, it appears that while driving a motor vehicle along the Hume Highway, he was stopped by police and required to submit to a random breath test. A search of his vehicle revealed a number of carry bags in the boot. One of the bags contained a substantial quantity of Sudafed tablets, some still in their blister packs and others which had been removed from their blister packs.[15]

70 Evidence was led at the trial to the effect that a common method of making methylamphetamine illicitly involved production of pseudoephedrine which is contained in Sudafed.

71 Also found in the boot was a bottle of ortho phosphoric acid and a bag containing a quantity of red phosphorous. A number of items of chemistry glassware, including stands, flasks, pipes and pumps were also located.

72 While the search was in progress, the respondent said to the police, "I think I'm in the shit".

73 Pistols and ammunition were also found in the car, together with almost $10,000 in cash, $994 of which was on the respondent's person. The chemicals and equipment found in the car were some but not all of the chemicals necessary to convert pseudoephedrine to methylamphetamine.

74 The trial judge, Judge Graham, accepted that a step, being an intermediate stage in the process of manufacturing a prohibited drug, could fall within the terms of s 6(a) of the New South Wales Act. He accepted also that it would not be necessary at the time of the taking of the intermediate step for the accused to have possession of or access to all of the equipment and chemicals necessary to complete the process.

75 But he held that the mere acquisition and transportation of the chemicals and equipment, taken at its highest, did not amount to anything more than evidence from which the inference might be drawn that the respondent was equipping himself with the materials necessary to undertake the process of manufacture at a future time, and did not amount to taking part in the manufacture of the drug, even allowing for the extended definition of manufacturing found in s 6.

76 In BD the Crown contended that the acquisition and transportation of chemicals and equipment necessary for the manufacture of methylamphetamine was a step in the process of manufacture, which is an argument similar to the contention put forward by Ms Abraham QC in this case.

77 That argument was rejected by the court in BD. In her judgment, Bell J, with whom Stein JA and James J agreed, observed:[16]

"23 In the Crown's submission the purchase of a chemistry flask by a person who intended to use it in connection with the manufacture of prohibited drugs would, without more, constitute a step in the process of manufacture within the meaning of s 6 of the Act and thus expose the purchaser to criminal liability for taking part in the manufacture of a prohibited drug contrary to s 24 of the Act.

24 The construction for which the Crown contends seems to me to strain the meaning of the words 'takes, or participates in, any step in the process of manufacture' in s 6 of the Act.

........

26 The Crown submitted that Judge Graham erred in that he construed the terms of s 6 of the Act restrictively. I do not agree. I consider there is force to his Honour's observation:

'The Statute does not refer to acts "leading to, preparatory to, or with a view to" the process of manufacture. The words of the statute themselves, in s 6, refer to taking or participating in any step or in causing any step to be taken in the process of that manufacture (emphasis supplied).' (ROS pp 7/8).

To my mind the acquisition and/or the transport of chemicals or equipment do not, without more, constitute steps in the process of manufacture. They are steps preparatory to the process of manufacture." (emphasis added)

78 The case of Marchione[17] concerned an appeal against an order of a trial judge refusing an application that he permanently stay proceedings on an indictment.

79 The indictment charged the appellant with two counts: knowingly taking part in the manufacture of methylamphetamine, and knowingly taking part in the supply of methylamphetamine.

80 The application for a stay was based on the submission that the evidence available to the Crown was not capable of establishing the appellant's guilt on the first count.

81 The Crown case depended substantially upon inferences to be drawn from the terms of certain telephone discussions which were recorded between the appellant and a man named Tesic. The trial judge ruled that he should consider the application for a stay against the fact that the gravamen, as he put it, of the Crown case against the appellant was that the appellant was endeavouring to, and had in fact obtained, raw material to assist Tesic in the course of undertaking a process that would possibly lead to the manufacture of methylamphetamine at a future time.

82 From that starting point, the trial judge approached determination of the application for a stay in the manner which appears from the following passage from his reasons:[18]

"But in my view if the evidence is capable of establishing that the accused provided Sudafed or some other drug to another person, in the knowledge that there was a process in course, either by way of experimentation or trial and error, with the intention that the material he was supplying would or could in due course lead to the production of methylamphetamine, then there is a prima facie case for the accused to answer ...

In my view what the Crown would need to establish is knowledge on the part of the accused of a contemporaneous process, which was part of a process of manufacture, and for that the Crown would have to establish that the accused had the relevant intention that he was provided the Sudafed or other related drug for the purposes of that process of manufacture." (emphasis added)

83 In upholding that approach and in distinguishing BD, Bell J, who delivered the judgment of the Court of Criminal Appeal in terms agreed to by Heydon JA and Dowd J, said:[19]

"41 I consider that his Honour was right to distinguish this case from BD upon the basis that the evidence was capable of establishing that the appellant was supplying Sudafed (or its generic equivalent) in the knowledge that Tesic and/or his associates were engaged in a process of manufacture intended to produce methylamphetamine. This is consistent with Thomas. I reject the challenge that his Honour wrongly interpreted ss 6 and 24(1) of the DMT Act.

42 Norrish SCJ found that the evidence allowed of the inference that there was an ongoing process of manufacture of methylamphetamine as at 3 and 4 May 2000." (emphasis added)

84 In Spicer,[20] the appellant appealed against his conviction on a charge of knowingly taking part in the manufacture of not less than the commercial quantity of methylamphetamine.

85 On the day in question, the appellant was stopped by police for a random breath test. The police officers found on the front seat a glass ball with some liquid which turned out to be methylamphetamine in a liquid state, known as methylamphetamine oil. Also in the car were other items of equipment, some of which contained traces of chemicals commonly used or produced in the manufacture of methylamphetamine. Evidence was given that methylamphetamine oil is not a marketable commodity, but it is commonly produced as a intermediate step in the process of producing methylamphetamine in its crystalline form.

86 The appellant accepted that what the police found was virtually a complete methylamphetamine laboratory, with virtually all of the necessary apparatus and chemicals to produce the finished drug. The only component missing was hydrochloric acid, which is commonly used to turn the liquid methylamphetamine into methylamphetamine in its crystalline state.

87 The directions of the trial judge amounted in effect to telling the jury that if the appellant took part in the transportation of the items in question, this was sufficient to amount to taking part in the manufacture of the prohibited drug.

88 The court held that this was an erroneous direction and that the jury should have been directed to consider whether or not the evidence established that the appellant had any role in the process of manufacture other than transporting the equipment, including the prohibited drug in its viscous state, from one point to another.

89 In the course of his judgment, with which Santow JA and Simpson J agreed, Smart AJ said:

"42 There was evidence from the appellant that he had loaded all the items into the car prior to setting out on the journey on which he was stopped. He must have known he was transporting drug manufacturing equipment and enough for a complete laboratory and liquid amphetamine. The evidence of Mr V.P. Murtagh established what is almost always, if not always, done to liquid amphetamine. However, there was no evidence .... about the purpose of the transportation. .....

43 The Crown had to establish that the appellant was aware that he was taking part in the process of manufacture. That is not established by proving that the appellant knew that a prohibited drug was being transported. It is one matter to know that a prohibited drug is being transported and quite another to knowingly take part in the process of manufacture. Unfortunately, the summing up did not adequately distinguish these concepts. For example he said at SU10, 'so if you find that the accused knowingly took part in the transportation knowing that it was the prohibited drug ... then it will be open to you to find him guilty'.

44 The summing up was also defective in that it, in effect, told the jury that it was sufficient if the accused took part in the transportation of the prohibited drug, knowing that it was a prohibited drug. Transportation alone was not enough.

.........

46 On the .... issue of whether it was open to the jury on the evidence to convict the appellant I do not think that it was. The evidence fell short of establishing that the appellant knowingly took part in the process of manufacture. It certainly established that the appellant transported the equipment and liquid amphetamine. That was not in issue. Nor was it in issue that the appellant knew that he was transporting a prohibited drug. However, it was not proven that he knowingly took part in the process of manufacture. The Crown had to show that the appellant was more than a mere courier."[21] (emphasis added)

90 Ms Abraham QC submitted that the New South Wales decisions, more particularly BD (supra) do not represent the law in South Australia and are inconsistent with the 1995 reference and the 1996 reference. She further submitted that the legislative schemes in New South Wales and South Australia are relevantly different, and for that reason the New South Wales decisions should not be followed in this State.

92 The New South Wales cases correctly distinguish in terms applicable to the corresponding legislation in this State, the distinction to be drawn between merely preparatory acts and acts which may properly be regarded as evidence of participation in a process of manufacture.

93 I do not regard the New South Wales decisions as being inconsistent with the two South Australian decisions concerning participation in sale. As I have been at pains to point out, in both the 1995 reference and the 1996 reference, while they support the view that proof of a completed sale is not necessary to support a conviction for participation in a sale, where a completed sale is not proved, the judgments in both cases make it clear that the evidence must establish some ongoing process of sale before evidence of participation in sale can be made out.

94 For example, I do not think that the approach adopted in the South Australian cases on what constitutes participation in sale would support a conviction if there was no actual sale and all that the evidence proved was, for example, the fitting out of a shop in preparation for the establishment of a retail business of sale or the acquisition of some stock before the business had been established.

95 In my view, it is important for present purposes to give effect to the words which appear in s 32(4)(a) "in the process of that manufacture". The taking or participation of any step must be in that process.

96 I accept the argument advanced by Mr Wells QC that one cannot be held guilty of participating in a step in the process of manufacture if that process has not, in the relevant sense, commenced. In particular, I accept the arguments which find expression in the following paragraphs from his written submissions:

"23 If it were shown, for example, that a laboratory for the manufacture of methylamphetamine had been set up and was functioning at the very time the vehicle was searched, and further, that the items found in the vehicle were intended by the accused for use in that laboratory, it might be concluded that he was participating in or taking a step in the process of that manufacture, by supplying ingredients for use in that laboratory.

24 The construction contended for does not mean that the impugned acts of the accused must be shown to be contributing to a process of manufacture which is at that moment operating. If it were shown, for example, that the laboratory although fully established and operational was not then in operation, but that the accused was transporting the items found for the purpose of supplying the laboratory, that too may constitute participation in, or taking a step in, the process of manufacture of methylamphetamine in that laboratory.[22]

25 If, on the other hand, it were shown only that the accused was transporting the ingredients found on the search of the vehicle from one storage depot to another, with a view to their use at some indefinite time in the future in a laboratory for the manufacture of methylamphetamine yet to be set up, that act of transporting would not constitute participation in, or taking a step in, the process of manufacture of methylamphetamine. It could not be said that the process had been so established and made operational that the act of transportation could be taken as directed towards the purpose of feeding that process, either immediately or in due course as required."

97 In accepting those submissions, I should make it clear that to take part in the manufacture, or to take or participate in a step in the process of manufacture of an illicit drug, does not necessarily mean that there must be an existing laboratory established for that purpose. The process of manufacture, which, in my view, must be in place before any acts can properly be characterised as constituting participation in that process, may be constituted by a variety of means. It would be unwise to attempt in advance to define what might constitute such a "process".

98 It follows from the views which I have expressed that if the trial judge's comment that there is no evidence foreshadowed that what was found in the accused's car was part of any "larger, current or future operation for the manufacture of methylamphetamine", it may well be that a no-case submission would inevitably succeed. But that will be entirely a matter for the trial judge to deal with, in accordance with these reasons, and in the light of the evidence as it may emerge at the trial.

99 I accept that the questions are framed in terms which are probably too broad. But I think that answers, consistent with the views which I have expressed when read together with these reasons, may properly be given.

Do the words 'take part in the manufacture' in s 32(1)(b) of the Controlled Substances Act 1984, include:

(1) acts preparatory to the manufacture of a drug of dependence or a prohibited substance where those acts are done for the purpose of manufacture, and are necessary for such manufacture, but where no subsequent steps in the process of manufacture occur?

No, if by the words 'acts preparatory to the manufacture of a drug of dependence or a prohibited substance' it is intended to refer to acts taking place before the process of manufacture has commenced, in the sense referred to in the above reasons.

(2) the transportation of all, or some, of the materials, required for manufacture where they are knowingly intended for manufacture?"

(a) a process of manufacture has been established; and

(b) that by the transportation of the materials the accused intends to take part in, contribute to or assist in that process.

101 MULLIGHAN J. I agree that the questions in the case stated should be answered as proposed by Perry J for the reasons which he has given.

102 BESANKO J: I agree with the answers proposed by Perry J and I am in substantial agreement with his Honour's reasons.

103 Section 32(4)(a) of the Controlled Substances Act 1984 ("CSA") refers to the "process" of manufacture. The notion of a process is implicit in the concept of manufacturing and therefore in the use of the word "manufacture' in s 32(1)(b). In this respect there is no difference between s 32(1)(b) and s 32(4)(a). In Federal Commissioner of Taxation v Jack Zinader Pty Ltd [1949] HCA 42; (1949) 78 CLR 336, Dixon J (as he then was) referred with approval to the following statement of Darling J in McNicol v Pinch [1906] UKLawRpKQB 95; [1906] 2 KB 352 at 361:

"The essence of making or of manufacturing is that what is made shall be a different thing from that out of which it is made."

104 In my opinion, that is an apposite definition for the purposes of s 32 of the CSA. As Bell J noted in R v BD [2001] NSWCCA 184; (2001) 122 A Crim R 28 the relevant definition of the word "process" in the New Shorter Oxford English Dictionary is as follows:

"a systematic series of actions or operations directed to some end, as in manufacturing, printing, photography etc."

105 In my opinion, the critical question will be whether the accused's acts are part of, or a step in, a systematic or planned or pre-arranged series of actions or operations which involve the making of a substance or material which is different from the substances or materials out of which it is made. Clearly, purchasing the substance or materials out of which the relevant drug is to be made and/or transporting the same may be acts which satisfy that description if they are part of a systematic or planned or pre-arranged series of actions or operations of the relevant type. On the other hand, merely purchasing and having possession of some of the substances or materials out of which the relevant drug may be made will be insufficient unless it is clear that such acts are part of a systematic or planned or pre-arranged series of actions or operations. Obviously, what side of the line a particular factual situation falls will depend on the precise evidence which is put forward including the inferences which can be drawn from the accused's conduct. In this particular case, the statement of the circumstances out of which the reservation arises contains the following statement:

"There is no evidence that the accused had taken part in the completed manufacture of any methylamphetamine or that what was found in the accused's car was part of any larger, current or future, operation for the manufacture of methylamphetamine."

106 I agree with Perry J that if that is the state of the evidence at the conclusion of the prosecution case then it may well be that a no-case submission would inevitably succeed.

See Rona v District Court of South Australia and Anor (1994) 63 SASR 233.

(1996) 188 LSJS 98 at 119-120.

See Application for Reservation of Questions of Law (No 2 of 1999) [1999] SASC 260; (1999) 106 A Crim R 423.

See, for example, Application for Reservation of Questions of Law (No 2) (1997-1998) 196 LSJS 1, R v Sexton [2000] SASC 124; (2000) 76 SASR 534, Gee and Anor [1999] SASC 361; (1999-2000) 110 A Crim R 1.

The observations of Mullighan J in Gee and Anor [1999] SASC 361; (1999-2000) 110 A Crim R 1 at 11 par [38] are apposite.

As to the removal of Sudafed from blister packs, see Parker [2002] NSWCCA 330; (2002) 132 A Crim R 413, where it was held that BD does not support the view that removal of Sudafed from blister packs with a view to using the substance in the process of manufacture of methylamphetamine can never amount to taking a step in the manufacture of the drug.

Regina v Spicer (unreported) Court of Criminal Appeal (NSW) [2003] NSW CCA 108.

To the same effect is the unreported decision of the Court of Criminal Appeal of New South Wales in Regina v Spicer [2003] NSW CCA 108.

R v Thomas (1993) 67 A Crim R 308 per Gleeson CJ at 309, 311.

[1] See Rona v District Court of South Australia and Anor (1994) 63 SASR 233.

[4] See Application for Reservation of Questions of Law (No 2 of 1999) [1999] SASC 260; (1999) 106 A Crim R 423.

[5] See, for example, Application for Reservation of Questions of Law (No 2) (1997-1998) 196 LSJS 1, R v Sexton [2000] SASC 124; (2000) 76 SASR 534, Gee and Anor [1999] SASC 361; (1999-2000) 110 A Crim R 1.

[6] The observations of Mullighan J in Gee and Anor [1999] SASC 361; (1999-2000) 110 A Crim R 1 at 11 par [38] are apposite.

[15] As to the removal of Sudafed from blister packs, see Parker [2002] NSWCCA 330; (2002) 132 A Crim R 413, where it was held that BD does not support the view that removal of Sudafed from blister packs with a view to using the substance in the process of manufacture of methylamphetamine can never amount to taking a step in the manufacture of the drug.

[20] Regina v Spicer (unreported) Court of Criminal Appeal (NSW) [2003] NSW CCA 108.

[21] To the same effect is the unreported decision of the Court of Criminal Appeal of New South Wales in Regina v Spicer [2003] NSW CCA 108.

[22] R v Thomas (1993) 67 A Crim R 308 per Gleeson CJ at 309, 311.

(R v AVORY)

At a glance

Court

Decision date

Before

Source

Judgment (158 paragraphs)

QUESTION OF LAW RESERVED (NO 1 OF 2003) No. SCCRM-03-138 [2003] SASC 430 (23 December 2003)

Parties

Cases Cited (5)

**(R v AVORY)**

At a glance

Court

Decision date

Before

Source

Judgment (158 paragraphs)

QUESTION OF LAW RESERVED (NO 1 OF 2003) No. SCCRM-03-138 [2003] SASC 430 (23 December 2003)

Parties

Cases Cited (5)

(R v AVORY)