The Queen v A L

WORDS AND PHRASES - 'addition', 'by the addition of', 'chemical derivative'.

1 AL is facing 10 drug importation charges under the Criminal Code ('Code'), schedule to the Criminal Code Act 1995 (Cth). The drug in question has the chemical name '3',4'-methylenedioxymethcathinone'. It is also known as 'methylone'.

2 To prove the importation charges, the prosecution must establish that methylone is a 'border controlled drug' within the meaning of s 314.4 of the Code. Subsection (1) contains a table listing 155 different border controlled drugs ('listed drugs'). Subsection (2) expands the range of border controlled drugs to include any substance which has a specified chemical relationship with a listed drug.

3 There is a dispute between the parties as to whether methylone has the requisite chemical relationship with the drug methcathinone, itself a listed drug. To enable that dispute to be resolved before trial, the judge has reserved questions of law and stated a case for determination by this Court, pursuant to ss 302(2) and 305 of the Criminal Procedure Act 2009. (The case stated is included as an Appendix to these reasons for judgment.)

4 In our respectful view, this was an eminently suitable case in which to use the case stated procedure. Put simply, the answers to the questions reserved would determine whether or not there was a trial of the importation charges. The case stated is clear and comprehensive and his Honour made all of the necessary findings of fact to enable us to decide the reserved questions.

5 There was, however, one defect in the case stated which - for the assistance of those wishing to use this procedure in the future - should be corrected. Having listed the expert witnesses who had given evidence at the pre-trial hearing, his Honour annexed their statements and the relevant transcripts as part of the case.[1] With respect, the evidence should not have been included. On a proceeding by way of case stated, the Court must determine the question(s) of law solely on the basis of the facts set out in the case.[2] It is no part of the appellate court's function in such a proceeding to make findings of fact. We have, accordingly, disregarded the evidence annexed to the stated case.

6 For the same reason, we rejected a submission by counsel for AL that we should add to the judge's findings one additional matter of fact said to be supported by the evidence of particular expert witnesses.

7 At the relevant time, s 314.4(2) of the Code was in these terms:

(2) A substance is also a border controlled drug if the substance (the drug analogue) is, in relation to a border controlled drug listed in subsection (1) (or a stereoisomer, a structural isomer (with the same constituent groups) or an alkaloid of such a border controlled drug):

(a) a stereoisomer; or

(b) a structural isomer having the same constituent groups; or

(c) an alkaloid; or

(d) a structural modification obtained by the addition of one or more of the following groups:

(i) alkoxy, cyclic diether, acyl, acyloxy, monoamino or dialkylamino groups with up to 6 carbon atoms in any alkyl residue;

(ii) alkyl, alkenyl or alkynyl groups with up to 6 carbon atoms in the group, where the group is attached to oxygen (for example, an ester or an ether group), nitrogen, sulphur or carbon;

(iii) halogen, hydroxy, nitro or amino groups; or

(e) a structural modification obtained in one or more of the following ways:

(i) by the replacement of up to 2 carbocyclic or heterocyclic ring structures with different carbocyclic or heterocyclic ring structures;

(ii) by the addition of hydrogen atoms to one or more unsaturated bonds;

(iii) by the replacement of one or more of the groups specified in paragraph (d) with another such group or groups;

(iv) by the conversion of a carboxyl or an ester group into an amide group; or

(f) otherwise a homologue, analogue, chemical derivative or substance substantially similar in chemical structure;

however obtained, except where the drug analogue is separately listed in subsection (1).[3]

1. Does the term 'addition' in section 314.4(2)(d) of the Criminal Code (Cth) (as in force between 29 November 2010 and 18 February 2011) have its ordinary meaning or does it mean 'addition reaction' as defined in the International Union of Pure and Applied Chemistry Compendium of Chemical Terminology, which reads relevantly 'a chemical reaction of two or more reacting molecular entities, resulting in a single reaction product containing all atoms of all components, with formation of two chemical bonds and a net reduction in bond multiplicity in at least one of the reactants'.

9 The submission on behalf of AL was that, in this particular statutory context, the word 'addition' in para (d) was intended to have the narrower, technical meaning of 'addition reaction' to which Question 1 refers. As appears from the terms of the question itself, and from paras 25-27 of the case stated, the key feature of an 'addition reaction' is that there is 'no elimination or loss of atoms' when two or more molecules combine to form a larger one. Crucially, the production of methylone - by adding a cyclic diether group to methcathinone - results in the loss of two hydrogen atoms.[4]

10 The principal argument advanced in support of this construction was that s 314 of the Code was 'drafted in the language of chemistry'. Counsel pointed to terms such as 'stereoisomer', 'structural isomer' and 'alkaloid', which were said to have meanings 'as terms of art' in the field of chemistry, and submitted that the legislature must therefore be taken to have intended a technical meaning of the word 'addition'.

11 We are not persuaded by that submission. Whether a word in a statutory provision was intended to be given its ordinary meaning or some special or technical meaning is a question to be determined by the application of 'logic and commonsense'.[5] Where the word in question is in common use, the starting-point is that Parliament intended the word to be interpreted in accordance with everyday usage.[6]

12 As Lockhart J said in Marine Power Australia Pty Ltd v Comptroller-General of Customs:

Words in statutes should be taken to have been used by the legislature in their ordinary sense unless there is something in their context, phrasing or the subject matter with which they deal to lead to the conclusion that they are intended to assume a technical meaning or to be used in a specialised or trade sense. [7]

More recently, Hall J in the Western Australian Supreme Court made the same point in a different way:

If it is intended that a word in a statute will be used in a specific way that may not accord with ordinary usage such an intention is generally reflected in a definition in the statute. Absent such a definition, the ordinary meaning should prevail unless there is something in the context to suggest that another meaning is intended.[8]

13 It is indisputable that s 314.4(2) uses a number of technical terms. Their unfamiliarity to the lay reader makes them readily identifiable. But it does not follow that every other word used in the provision is presumed to be a technical term or to have been intended to have a technical meaning. There is nothing unusual about technical terms in a statutory provision being linked by words or phrases in ordinary usage. On the contrary, that will almost always be the case, because of the need to maximise the intelligibility of the provision.

14 Even in a composite statutory phrase, the fact that some of the words have a technical meaning does not mean that every other word in the phrase has a technical meaning. In Agfa-Gevaert, the High Court was concerned with the phrase 'silver dye bleach reversal process'.[9] The Court upheld the trial judge's interpretation, in which the words 'silver dye bleach' were given their trade or technical meaning and the word 'reversal' was given its ordinary meaning.[10]

15 In our view, the phrase 'by the addition of' in s 314.4(2)(d) is composed of ordinary English words which were intended to be understood in their ordinary sense. There is no difficulty in comprehending the notion of a substance being modified 'by the addition' to it of a specified chemical. There is nothing in the context to indicate that some narrower meaning of 'addition' was intended.

16 Nor does the use of the word 'addition' in this sense invite any question about the effect which the process of addition may have on the original substance. As a matter of ordinary experience, the addition of one substance to another typically produces a mixed substance which is different from either of the two ingredients which have been combined. The fact that the process of addition might result in a change to the chemical structure of one or both of the ingredient substances does not make the use of the word 'addition' inappropriate.

17 Counsel for AL were unable to advance any coherent rationale for the legislature having deliberately chosen - as they submit it did - to narrow the range of 'structural modifications' to which para (d) was capable of applying. The policy of these provisions is clear. A wide net must be cast in order to prevent the prohibitions being circumvented. Without these provisions a would-be importer could escape liability simply by modifying the chemical structure of a listed drug, to create a substance which was pharmacologically similar but was not itself a listed drug. As was stated in the Explanatory Memorandum to the relevant legislation,[11] these provisions were designed to -

create a 'catch-all' provision for these 'designer' drugs, ... to overcome any gap in the legislative control over these substances.[12]

18 Counsel for AL contended that adopting the narrower meaning of 'addition' would contribute to greater certainty in the application of these provisions. There is no substance in that submission. Whether in a particular case the process of addition has, or has not, resulted in a 'structural' modification of a listed substance within the meaning of para (d) is a matter which can readily be determined with the assistance of expert evidence if a dispute arises.

19 Importantly, the findings in the case stated make clear that the interpretation for which AL contends would render s 314.4(2)(d) almost entirely inoperative. With the exception of a cyclic diether group, none of the groups listed in para (d) could be added to any of the listed drugs without the loss or elimination of one or more atoms.[13] Plainly enough, Parliament would not have included those other groups unless they were capable of being 'added' in the manner contemplated by para (d).

20 On the view we have taken - that 'addition' was intended to be given its ordinary meaning - the evidence led as to the use of the word by chemists may strictly speaking have been inadmissible.[14] But we need not resolve that question, as the facts found by the judge on the basis of that evidence show that the word 'addition' does not, in any case, have a single technical meaning.[15]

21 As is apparent from paras 25-27 of the case stated, the word 'addition' is used by chemists in both the narrow and the broad sense. Importantly, the judge found that -

when chemists use the term 'addition' in the very specific sense of an 'addition reaction', to avoid ambiguity they generally use the term 'addition reaction'.[16]

We have little doubt that if Parliament had intended to adopt the narrow technical meaning contended for, the term 'addition reaction' would have been used.

22 For completeness, we note that counsel for AL relied on a subsequent amendment of the provisions. The term 'drug analogue' is now defined in s 301.9 of the Code, so as to apply both to a 'listed controlled drug' and to a 'listed border controlled drug'. That section provides as follows:

301.9 Meaning of drug analogue

(1) For the purposes of this Part, a substance is a drug analogue of a listed controlled drug, or a listed border controlled drug, if the substance is any of the following in relation to the listed drug (or in relation to a primary analogue of the listed drug), however the substance is obtained:

(a) one of the following (a primary analogue):

(i) a stereoisomer;

(ii) a structural isomer having the same constituent groups;

(iii) an alkaloid;

(c) a structural modification obtained in one or more of the following ways:

(i) by the replacement of up to 2 carbocyclic or heterocyclic ring structures with different carbocyclic or heterocyclic ring structures;

(ii) by the addition of hydrogen atoms to one or more unsaturated bonds;

(iii) by the replacement of one or more of the groups or atoms specified in subsection (2) with one or more of the other groups or atoms specified in that subsection;

(iv) by the conversion of a carboxyl or an ester group into an amide group;

(d) any other homologue, analogue, chemical derivative or substance substantially similar in chemical structure.

(2) The following groups and atoms are specified:

(a) alkoxy, cyclic diether, acyl, acyloxy, monoamino or dialkylamino groups with up to 6 carbon atoms in any alkyl residue;

(b) alkyl, alkenyl or alkynyl groups with up to 6 carbon atoms in the group, where the group is attached to oxygen (for example, an ester or an ether group), nitrogen, sulphur or carbon;

(c) halogen, hydroxy, nitro or amino groups;

(d) hydrogen atoms.

(3) However:

(a) a drug analogue of a listed controlled drug does not include a substance that is itself a listed controlled drug; and

(b) a drug analogue of a listed border controlled drug does not include a substance that is itself a listed border controlled drug.

(4) In this section:

addition has its ordinary meaning.

replacement has its ordinary meaning.[17]

23 The Explanatory Memorandum to the amending legislation stated as follows:

The terms 'addition' and 'replacement' have a scientific meaning which is different to their ordinary meaning. New subsection 301.9(4) is intended to clarify that the terms are not to be given their scientific meaning. Rather:

• addition is to be given its ordinary meaning of the act or process of uniting or joining two or more things so as to increase the number or quantity, and
• replacement is to be given its ordinary meaning of the act or process of a thing filling or taking the place of, or substituting for, another thing. [18]

24 The submission for AL was that the amendment 'reinforces the proper interpretation of 'addition' as a term of art in chemistry'. Reliance was placed on what was said by Dixon J in Grain Elevators Board (Vic) v Dunmunkle Corporation.[19] In that case, the High Court concluded that a statutory exemption from Council rates, applying to 'land the property of His Majesty', did not apply to land owned by the appellate Board. Subsequent to the rating year in question, but before the Court's decision, a specific provision was enacted giving the Board a limited exemption from rates. Dixon J said:

Although the provision was passed too late to apply to the present case, I think that it may be considered on the question of interpretation. It would be a strange result if we were to interpret the prior legislation as giving a wider exemption than that conferred by the provision so that the express exemption it makes would prove unnecessary and the qualifications it places upon that exemption would be futile.[20]

25 We reject that submission. First, as can be seen, the word 'addition' is used in s 301.9(1)(c)(ii) in a context quite different from that of s 314.4(2)(d). Secondly, as this Court said in Doughty v Martino Developments Pty Ltd,[21] the kind of reasoning described in Dunmunkle 'has no application where the amending words have been included to remove possible doubts as to the meaning of the original provision'.[22] To the extent that the amendment could be said to shed any light on the interpretation of s 314.4(2)(d), it was an amendment of that character.

1. In section 314.4(2)(f) of the Criminal Code (Cth), does the qualification 'substantially similar in chemical structure' apply to 'analogue' as well as 'substance'.

27 The submission for the Commonwealth Director was that the phrase 'substantially similar in chemical structure' qualified only the word 'substance' which immediately preceded it. According to the submission, had the legislature intended that the phrase also qualify the terms 'homologue', 'analogue' and 'chemical derivative', para (f) could easily have been drafted in that way. It followed, so it was said, that those three terms fell to be considered 'according to their terms'.

28 In our view, this submission cannot be sustained. The facts found by the judge reveal that each of the terms 'homologue', 'analogue' and 'chemical derivative' is capable of quite wide application.[23] In particular, the phrase 'chemical derivative' is capable of extending to any substance which has been 'chemically derived' from a listed substance. All that would need to be shown for that purpose is that the derivative had been 'made from' the listed substance.[24] No question of structural similarity would arise.

29 Thus, unless the 'substantially similar' limitation applied to all of the terms in para (f), that provision would have almost unlimited scope - far beyond anything which could be explained, or justified, by the legislative purpose. And a provision of such broad application would render wholly redundant the other paragraphs of s 314.4(2), which specify with some precision a range of structural modifications capable of qualifying as 'drug analogues'.

30 The reserved questions will be answered as follows:

1. By an indictment filed in the County Court of Victoria (the Court), the Director of Public Prosecutions for the Commonwealth has charged the accused, [AL], with the following offences:

a) Ten charges of importing a border controlled drug (BCD), contrary to s 307.3(1) of the Criminal Code (Cth) (charges 1, 2, 3, 4, 5, 6, 7, 8, 13 and 14);

b) One charge of attempting to possess a BCD reasonably suspected of having been unlawfully imported, contrary to ss 307.10(1) and 11.1(1) of the Criminal Code (charge 9);

c) One charge of possessing a BCD reasonably suspected of having been unlawfully imported, contrary to s 307.10(1) of the Criminal Code (charge 10);

d) One charge of possessing a controlled drug, namely cannabis contrary to s 308.1(1) of the Criminal Code (charge 11); and

e) One charge of trafficking a controlled drug, namely lysergide contrary to s 302.4(1) of the Criminal Code (charge 12).

2. A copy of the indictment is at Section 2 of the Court Book.

3. Each offence is alleged to have been committed on or about a particular date. The particular dates range between 29 November 2010 (charge 1) and 18 February 2011 (charge 14) (the relevant period).

4. Each reference in this Case Stated to a provision of the Criminal Code is to the provision as in force during the relevant period.

5. Each of the charges that relates to a BCD (that is, each charge other than charges 11 and 12) particularises the BCD as '3', 4' - methylenedioxymethcathinone, being an analogue of the border controlled drug methcathinonone'.

6. Throughout the relevant period, the substance 3',4'-methylenedioxymethcathinone was not amongst the substances listed in s 314.4(1) of the Criminal Code. However the substance Methcathinone was so listed (Item 95) throughout the relevant period.

7. The prosecution alleges, in relation to each of the charges that relates to a BCD, that 3',4' - methylenedioxymethcathinone was a BCD because it is a 'drug analogue' of Methcathinone, within the meaning of s 314.4(2) of the Criminal Code.

8. In particular, the prosecution alleges that 3',4' - methylenedioxymethcathinone is, in relation to Methcathinone,

a) 'a structural modification obtained by the addition of one or more of the following groups' (within the meaning of s 314.4(2)(d)), namely one 'cyclic diether' group; and

b) 'otherwise a homologue, analogue, chemical derivative or substance substantially similar in chemical structure' (within the meaning of s 314.4(2)(f).

9. In addition to the depositions, the Court has received a Notice of Additional Evidence dated 10 March 2015 which was filed by the Crown, producing a statement by Emeritus Professor Graham Johnston dated 5 March 2015. In pre-trial hearings the Court heard expert evidence from Professor Johnston, Dr Michael Collins and Emeritus Professor David Brynn Hibbert. The transcripts of the evidence of those witnesses together with statements of Professor Johnson and Dr Collins and the Report of Professor Hibbert referred to in the transcripts of evidence are provided for ease of reference at Sections 4 to 12 inclusive of the Court Book.

10. The trial of the accused in the Court has been set down to commence on 8 August 2016.

11. The sole issue in dispute in relation to all charges (other than charges 11 and 12) is whether the 'substance' was a BCD. Resolution of that issue depends substantially, if not entirely, upon the answers to the questions of law in Annexure B (Section 1 of the Court Book).

12. The Court makes the following findings of fact, for the purposes of this Case Stated.

2.1 3', 4' - methylenedioxymethcathinone and Methcathinone

13. The substance 3',4' - methylenedioxymethcathinone is also known as Methylone.

14. Methcathinone and Methylone are both members of the amphetamine group of chemicals.

15. In a chemical compound, atoms of two or more elements are bound together by chemical bonds to form a molecule. Atoms within a molecule may be bound together singly, or in functional groups, moieties or substructures. The number of atoms, the way they are bound together and the structure of the molecule provide a unique 'signature' for each compound.

16. In chemistry, whether substance B (a chemical compound) can be characterised as a structural modification of substance A (another chemical compound) is determined solely by a comparison of their chemical structures. Substance B is a structural modification of substance A if substance A could in theory, applying the principles of chemistry, be modified in a way that would produce substance B. It is not necessary for substance B to be actually obtained, or obtainable in practice, from substance A.

2.3 Methylone as a structural modification of Methcathinone

17. The chemical structures of Methcathinone and Methylone are similar. Twenty-three of the 25 atoms which make up Methcathinone are also found in the structure of Methylone, in exactly the same arrangement and structure.

18. The only difference between Methcathinone and Methylone is that Methylone has a group of five atoms (one carbon, two hydrogen and two oxygen atoms) added in place of two hydrogen atoms.

19. The additional group of atoms is a cyclic diether group.

20. Methylone is a structural modification of Methcathinone.

21. The structural modification is obtained by joining a cyclic diether group to Methcathinone.

23. A standard reference work in chemistry is the Compendium of Chemical Terminology, published by the International Union of Pure and Applied Chemistry. The Compendium is known as the Gold Book.

24. An extract from the Gold Book which includes the definition of 'addition', and of terms used in that definition, is at Section 3 of the Court Book.

25. In relation to the structural modification of a molecule, strictly 'addition' describes the combining of two or more molecules to form a larger one, with no elimination or loss of atoms.

26. However, chemists commonly use the noun 'addition' (or forms of the verb 'to add') to describe a structural modification obtained by joining one or more groups of atoms of the kinds listed in s 314.4(2)(d) of the Criminal Code to create a larger molecule, even though such a structural modification strictly involves the elimination or replacement of one or more atoms from the molecule. 'Addition' and forms of the verb 'to add' are used in this sense both informally and in many formal scientific publications (including publications in refereed scientific journals).

27. When chemists use the term 'addition' in the very specific sense of an 'addition reaction', to avoid ambiguity they generally use the term 'addition reaction'.

2.5 Addition of one of the groups listed in s 314.4(2)(d) of the Criminal Code

28. It would be impossible to add any one of the groups listed in s 314.4(2)(d) of the Criminal Code (apart from a cyclic diether group) to any of the substances listed in s 314.4(1) of the Criminal Code (or any other substance) without the loss or elimination of one or more atoms. That is, no substance could ever be, in relation to another substance, a structural modification obtained by the addition of one of the groups listed in s 314.4(2)(d)(i) (other than a cyclic diether group), s 314.4(2)(d)(ii) or s 314.4(2)(d)(iii).

29. The structural modification of Methcathinone by the addition of a cyclic diether group, without the loss or elimination of any atoms, would produce a substance that could exist in theory. The substance would be a different substance from Methylone.

2.6 Homologue, analogue, chemical derivative or substance substantially similar in chemical structure

30. None of the terms 'homologue', 'analogue', 'chemical derivative' or 'substantially similar' is defined in the Gold Book.

31. 'Homologue', in chemistry, is defined in the Macquarie Dictionary as 'any member of a homologous series of compounds'. 'Homologous', in chemistry, is defined in the same Dictionary as 'of the same chemical type, but differing by a fixed increment in certain constituents'.

32. 'Analogue', in chemistry, is defined in dictionaries are follows:

'A compound with a molecular structure closely similar to that of another' (Oxford Dictionaries Online); and

'An organic compound that has a similar structure to another compound' (Macquarie Dictionary).

33. Methylone has been referred to as an analogue of Methcathinone in publications in scientific journals.

34. 'Derivative', in chemistry, is defined in the Macquarie Dictionary as 'a substance or compound made from, or structurally related to, another substance or compound'.

35. There is no agreed standard in chemistry for determining whether or not a substance is substantially similar in chemical structure to another.

36. In the circumstances set out above, the questions of law set out in Annexure B have arisen.

[2] Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135, 155 [34]. See also Criminal Procedure Act 2009 s 306(1).

[3] Code s 314.4 (as in force between 29 November 2010 and 18 February 2011) (emphasis in original).

[4] Appendix paras 17-21.

[5] Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 402 ('Agfa-Gevaert'); Seay v Eastwood (1976) 1 WLR 1117, 1121.

[6] See Cozens v Brutus [1972] UKHL 6; [1973] AC 854, 862-3 ('easily recognisable by the ordinary man').

[7] (1989) 89 ALR 561, 572.

[8] Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463 [22].

[9] Agfa-Gavaert [1996] HCA 36; (1996) 186 CLR 389, 392.

[10] Ibid 402; cf R v Strawhorn [2008] VSCA 101; (2008) 19 VR 101, 104 [190].

[11] Customs and Excise Legislation Amendment Bill 1990 (Cth).

[12] Explanatory Memorandum, Customs and Excise Legislation Amendment Bill 1990 (Cth) [iv].

[13] Appendix para 28.

[14] See D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) [4.17]-[4.19].

[15] See Australian Lighting & Hardware (Falkner) Pty Ltd v Brightlight Nominees Pty Ltd [1994] VicRp 40; [1994] 1 VR 553, 556-7; Distribution Group Ltd v Commissioner of Taxation [2000] VSC 418 [34]-[36].

[16] Appendix para 27 (emphasis in original).

[18] Explanatory Memorandum, Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015 (Cth) 41 [259].

[19] [1946] HCA 13; (1946) 73 CLR 70 ('Dunmunkle').

[21] [2010] VSCA 121; (2010) 27 VR 499.

[22] Ibid 511 [33] (Nettle JA, with whom Mandie JA and Emerton AJA agreed); See generally D C Pearce and R S Geddes, above n 14 [3.33]-[3.34].

[23] Appendix paras 30-34.