R v McCOY

Court of Criminal Appeal (NSW)|2001-07-04|Before: Giles JA, Hulme J, Adams J

Reported Decision : 51 NSWLR 702 123 A Crim R 81

CITATION : R v McCOY [2001] NSWCCA 255 FILE NUMBER(S) : CCA 60426 of 2000 HEARING DATE(S) : 4 July 2001 JUDGMENT DATE : 4 July 2001

PARTIES : Regina Robert Ellis McCoy JUDGMENT OF : Giles JA at 1; Hulme J at 2; Adams J at 20

COUNSEL : Crown: MC Grogan Appellant: P Byrne SC SOLICITORS : Crown: SE O'Connor Appellant: Kremmer Townsend

DECISION : Appeal allowed; Conviction squashed; Verdict of acquittal entered

1 -IN THE COURT OF CRIMINAL APPEAL CCA 60426/00

GILES JA HULME J ADAMS J 4 July 2001

1 GILES JA: I agree with Hulme J.

2 HULME J: On 3 April 2000, the Appellant was convicted before His Honour Judge Shillington and a jury of a charge - "that he between 1 December 1995 and 30 June 1996 … did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine." 3 Despite the extent of the period encompassed by the charge, the matter was put to the jury on the basis of activities being carried on at, and just prior to, the time of the Appellant's arrest on 13 June 1996. This makes it unnecessary for this Court to consider whether the Appellant was involved in the manufacture, which apparently occurred, of methylamphetamine on other occasions or, as will be seen, on another basis. 4 On 9 June 2000, he was sentenced to imprisonment for a period of 1 year such sentence being suspended upon the Appellant entering a good behaviour bond for a term of 1 year. 5 The Appellant appealed on 3 grounds: 1. The learned trial Judge erred in failing to direct the jury to find the appellant not guilty at the close of the Crown case. 2. The learned trial Judge erred in determining that the evidence was capable of proving the offence charged notwithstanding that there was evidence to establish that the offence was incapable of being committed by the appellant in the manner alleged. 3. The verdict of guilty is unreasonable, cannot be supported having regard to the evidence or otherwise represents a miscarriage of justice. 6 At the conclusion of the hearing of the appeal the Court ordered that the appeal be allowed, the appellant's conviction quashed, and a verdict of acquittal entered, with reasons to be published at a later date. There are my reasons for concurring in those orders.

Grounds 1 and 2 7 These grounds may be considered together. The foundation for them lies in the fact that the undisputed evidence in the trial was that the chemicals in fact being used in the course of an attempt to produce methylamphetamine were incapable of leading to that result. Apparently, the nature of the chemicals had been misrepresented to those whom the Appellant was said to be helping. 8 The offence is one provided for under the Drug Misuse & Trafficking Act 1985 ("the Act"), the relevant provisions of which are as follows: 3(1) In this Act, except insofar as the context or subject mater otherwise indicates or requires - manufacture in relation to a prohibited drug, includes the process of extracting or refining the prohibited drug. 6 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 any management of which the person participates. 24(1) A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, a prohibited drug is guilty of an offence. 9 Methylamphetamine is a prohibited drug under the Act. 10 It has been established that the reference in Section 6 to "manufacture … of a prohibited drug" and "that … manufacture" does not mean that some of the prohibited drug must have been manufactured and, in respect of that drug, the process completed. See Thomas (1993) 67 A Crim R 308; see also DPP Reference No 2 of 1995 (1995) 82 A Crim R 263 (supra). 11 In Thomas (supra) the appellant had been convicted of knowingly take part in the manufacture of a prohibited drug, methylamphetamine. During the execution of a search warrant the police had found in premises occupied by the appellant a fully operational laboratory, written materials which the jury were entitled to regard as relating to the manufacture of methylamphetamine, and a substantial quantity of phenyl-2-propene (P-2-P) which the appellant had himself produced in the laboratory. It was common ground that the appellant intended to use the P-2-P for his own purposes, the issue at the trial being what these were. On appeal the point was taken that, even if the Crown had provided that the appellant's production of the P-2-P was with the intention of using it to make methylamphetamine, his conduct did not amount to taking a step in the manufacture but rather merely involved the making of preparations to begin such manufacture. 12 In the course of rejecting this proposition Gleeson CJ, with the concurrence of the other members of the Court, said: "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."

and later, "Where … 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." 13 Thomas was much relied on by the Crown in this case. However that case is not decisive of the matter here, for there it was what may be regarded as an external supervening event which prevented the manufacture being completed. That the Appellant was engaged in a process of manufacture of methylamphetamine could be seen from his production of the P-2-P prior to the supervening event plus his intention (as established) of using it to make methylamphetamine, and whether the intention was possible of realisation did not arise. 14 The Court was taken to a number of decisions where issues of impossibility have arisen in the context of charges of conspiracy and attempt, including R v Barbouttis (1995) 37 NSWLR 256, R v Mai (1992) 26 NSWLR 371, and DPP v Nock (1997) AC 979. Such offences raise issues significantly different from those here raised and I do not think they are of assistance. This case is decided on the construction of the relevant provisions of the Act. 15 On those provisions, there must be a process of manufacture of a prohibited drug, here methylamphtamine, in which the offender takes part. The key issue for present purposes is the width of the concept of a process. At its widest, it may begin with the germination of an intention to produce the prohibited drug and ends, perhaps after numerous false starts and failures, with successful production. Narrowly, it may look to a particular attempt to produce the prohibited drug, involving for example the taking of chemicals, their combination and the result of the chemical reaction. 16 I do not think it necessary to address in the abstract where in the spectrum a process of manufacture of a prohibited drug lies for the purposes of the Act. It is sufficient that in this case the matter was put to the jury on a narrow basis, whereby the process was that under way at and just prior to the time of the Appellant's arrest. It was at all times impossible for manufacture of methylamphetamine to occur in the course of the attempt at manufacture in which the Appellant was then involved. Those directing the enterprise could have made another attempt using different chemicals, but that would have been a different process of manufacture of methylamphetamine from that put before the jury. It would not have been the process of manufacture of methylamphetamine being carried on at, and just prior to, the time of the Appellant's arrest. It was not put to the jury that the process in this case extended to the use of different chemicals if the initial attempt was not successful. 17 In the process as the matter was put to the jury, however genuinely the Appellant may have thought that the chemicals being used when combined made methylamphetamine, it could not realistically be said that the attempt to combine those chemicals was the taking of a step in the process of manufacture of methylamphetamine. To illustrate the point, however genuinely the appellant may have thought that hydrogen and oxygen when combined made methylamphetamine (rather than water) it could not realistically be said that an attempt to combine those elements was the taking of a step in the process of manufacture of methylamphetamine. The chemicals in the present case were just not appropriate for the purpose, and there was no process of manufacture of methylamphetamine. 18 As is recognised in Thomas, clearly the intention of a person engaged in a process which might lead to the production of methylamphetamine is relevant. But it is not sufficient. In this case, the Appellant may well have been guilty of participating in an attempt to manufacture methylamphetamine, but he was not guilty of the offence charged.

Ground 3 19 It is not necessary to address this ground. 20 ADAMS J: I agree with Hulme J.

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