R v SH

Judgment 1MACFARLAN JA: This is an appeal by the Crown under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) against the acquittal of the respondent of an indictable offence. The acquittal followed the trial judge, in a trial by judge alone, directing himself to return a verdict of not guilty. 2On 12 February 2013 SH, the present respondent, was found by police to be in possession of four pieces of cardboard, perforated into 696 squares. Thirty-two of the squares, weighing 0.29 grams, were found on analysis to contain lysergide which is a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW) (see s 3 and Schedule 1) (the "Drug Act"). A government analyst, Ms Vanessa Shaw, was not able to determine the amount of lysergide contained in the cardboard. On the basis that the 32 squares which were analysed were selected at random, she issued a certificate under s 43 of the Drug Act certifying that the four pieces of cardboard perforated into 696 squares weighed 6.43 grams in total and contained lysergide. 3Subsequently the respondent was charged on indictment with supply of lysergide in the amount of 6.43 grams, being an amount not less than the large commercial quantity for that drug (see Schedule 1 of the Drug Act). The indictment referred to s 29 of the Act which, subject to exceptions, deems possession of not less than the traffickable quantity of a drug to be possession for the purpose of supply. 4Prior to his trial, the respondent sought from the trial judge, Jeffreys DCJ, an order quashing or staying the indictment on the basis that the evidence proposed to be called by the Crown was incapable of proving the elements of the offence with which he was charged. 5Ms Shaw gave evidence at the hearing of the application, first, that the government laboratory at which she worked did not have the means to determine the amount of lysergide within the cardboard that she tested and, secondly, that the lysergide was embedded within "the paper fibres" of the cardboard (27/5/14, p 4; 28/5/14, p 8). When it was put to her in cross-examination that "if lysergide is sprayed onto a cardboard sheet it's not a mixture", she responded "I personally don't consider it a mixture". 6In support of the indictment the Crown submitted that the effect of s 4 of the Drug Act was that the cardboard containing lysergide was itself an admixture of the prohibited drug and that the weight of the cardboard therefore determined whether the applicant was in possession of not less than the large commercial quantity of a prohibited drug. Section 4 is in the following terms: "Admixtures In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug." 7Section 3 of the Act contains a "definition" of the word "substance" which does not define its ambit but specifies certain matters intended to be included within it: "substance includes preparation and admixture and all salts, isomers, esters or ethers of any substance and all salts of those isomers, esters and ethers." 8Jeffreys DCJ decided on the application that it was in the interests of justice for the trial of the respondent to proceed but stated that at the conclusion of the Crown case he intended to direct the jury to acquit. His Honour said: "The Crown's position is that the evidence of the analyst is that normally, as she understands it, a liquid is either sprayed onto paper or cardboard and that liquid contains Lysergide. And then, because it is a liquid, it becomes, according to the analyst, embedded within paper. The analyst says that in her view the paper and liquid do not become a mixture, but that the liquid becomes embedded in the fibres of the paper. When one considers the legislation, it seems to me that the only part of the legislation which assists the Crown case is that part of s 4 that reads 'substance containing any proportion of the prohibited drug'. It is quite clear that the Parliament was aware of discrete dosage units and it would be very easy in my view for the Parliament to have said that the weight of a substance such as Lysergide would include the medium, that is the cardboard or other piece of paper, upon which it was contained or in. I have been referred to the decision of the Court of Criminal Appeal in R v R2 19 NSWLR 513. In my view that is not of any particular assistance. I am told that there are no decisions in relation to the matter. It seems to me as a matter of statutory construction that it cannot be said that the prohibited drug which is within the cardboard square that the paper is contemplated within the legislation to be a substance containing any proportion of the prohibited drug [sic]." 9On 29 May 2014 the trial proceeded before Jeffreys DCJ as a judge alone trial. At the conclusion of the Crown case, his Honour referred to his earlier judgment and said, relevantly: "The evidence that has now been given is no more detailed in relation to weight than the evidence, which was before me at the time of the application. Accordingly, in my view, there is no evidence that is capable of satisfying a tribunal of fact beyond reasonable doubt as to the amount of the lysergide as being in excess of .002 kilograms" (2/6/14, p 1). 10His Honour accordingly directed himself to acquit the respondent, which he proceeded to do. 11On 5 June 2014 the Director of Public Prosecutions filed in this Court a Notice of Appeal under s 107 of the Crimes (Appeal and Review) Act 2001. The appeal was stated to be on grounds "to be filed upon receipt of his Honour's reasons". Delay in transcription of his Honour's reasons should not however have prevented the Crown's identification of its ground or grounds of appeal within the period of 28 days after the acquittal specified by s 107(3) as the time within which an appeal is to be lodged. The Crown was represented when his Honour delivered his short judgment at the trial and when he had delivered his judgment of 28 May 2014 on the application to quash or stay the indictment. Its representatives should have notes of the oral judgments from which the ground or grounds of appeal could have been formulated. 12The Crown subsequently identified the ground of appeal upon which it intended to rely by a document filed on 6 August 2014, stating the ground as follows: "His Honour erred in finding that, in order to establish the element 'the amount of substance was not less than the large commercial quantity for that drug' no regard is to be 'had of the weight of any preparation, admixture, extract or other substance containing any proportion of the prohibited drug' as provided by s. 4 of the Drug Misuse and Trafficking Act 1985." 13In its written submissions on appeal, the Crown reiterated that the ground of appeal was as quoted in [12] above but added: "31. Underlying his Honour's determination in the present case were the following legal propositions: (a) That the Crown was not able to establish the quantity element of the offence in circumstances where no assessment could be made of the lysergide alone; (b) That the Crown was not able to establish the quantity element of the offence by relying on the combined weight of the drug and the perforated cardboard; and (c) A conclusion that there was no evidence as to the weight of the drug being greater than any nominated quantity. 32. These are 'separate and distinct' legal propositions which his Honour applied to the facts in this case (PL at [72]). As such, they constitute errors giving rise to grounds of appeal involving questions of law alone." 14It concluded its submissions with the following: "45. The ultimate Crown submission is that there is no basis in fact or through process of reasoning, for a cardboard tab with embedded lysergide not to be considered an admixture ... 46. The Crown submits that the court would be satisfied that the essential element 'the amount of substance was not less than the large commercial quantity for that drug' has been established." 15The respondent's written submissions on appeal included the following: "6. There is no question of law alone formulated with precision by the Director: cf JS [R v JS [2007] NSWCCA 272; 175 A Crim R 108] at [75]. The 'ground' of appeal filed does not raise a question of law alone, and is, in any case contentious as the quotations attributed to his Honour are not to be found in his Honour's judgment entering a verdict of not guilty (or his earlier judgment declining to quash the indictment). ... 13. As stated above, the ground of appeal does not reflect the judgment of the primary judge. It is 'embarrassing' and the appeal should be refused as the jurisdiction of this Court under s107 [of the Crimes (Appeal and Review)] Act has not been invoked. 14. The respondent refutes the submission of the Director as to what are said to be the 'legal propositions' underlying the determination in the case, and in any case they are mixed questions of fact and law: AS [31]."