VALERIO -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2018] WASCA 158 (11 September 2018)

VALERIO -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2018] WASCA 158 (11 September 2018) - WASCA 2018 case summary — Zoe

[75]

Take the case of a carpenter. A carpenter uses wood; he begins with wood; he makes the wood into boxes. What would you say if you wanted to talk of his manufacturing? Ordinary people would not say that he manufactured wood; they would say he manufactured boxes. But I am not quite sure it might not be strictly said that he manufactures the wood. He applies a process to it. I suppose etymologically 'to manufacture' is 'to make by hand.' Everybody knows that you cannot absolutely make a thing by hand in the sense that you can create matter by hand, because in that sense you can make nothing: 'Ex nihilo nihil fit.' You can only make one thing out of another. I think 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. Even if it could be strictly said that the carpenter 'manufactures' wood it could not be said that he 'makes' wood. The same with a man who makes boots; he takes leather, and he makes it into boots. If he simply made leather into leather nobody could possibly say that he was a leather manufacturer, but it would be possible to say that a man who took leather and made it into boots manufactured leather but made boots. I think it would be possible to say that, and I am not sure it would not be strictly accurate, but I cannot read this statute in that way. Whether it would be possible to read 'manufacture' etymologically as something very different from 'make,' I think the Act of 1901 uses 'manufacture' and 'make' as being convertible terms, and that a man who manufactures saccharin under s 9 is doing the same thing as is called the making of saccharin under s 5, or the manufacturing of glucose or saccharin under sub-s 2 of s 5, and that the appellants did not make saccharin, because they began and ended with saccharin. They did not 'make' saccharin, and in my opinion, from the way in which the word is used by the statute, they did not manufacture saccharin, and therefore did not require a licence (361 - 362). (emphasis added)

[88]

The meaning of the word 'manufacture' in statutory provisions concerned with prohibiting the manufacture of illicit or dangerous drugs has been considered in numerous decisions in other States. See, for example, Thomas v The Queen;[12] Re Avory;[13] Beqiri v The Queen,[14] and Bucic. Those decisions must be approached with caution because they have concerned provisions which have defined the word 'manufacture'.
In Thomas, Gleeson CJ (Cripps JA & Allen J agreeing) held, in the context of a statute concerned with prohibiting the manufacture of illicit or dangerous drugs, that where a person manufactures something with a view to going on to use it in the manufacture of a desired end product, it is normally appropriate to characterise that as a step in the process of manufacturing the end product (311). His Honour distinguished taxing statutes from criminal statutes, in the context of whether a particular activity is a step in the manufacture of goods, on the basis that the purpose or object of a revenue statute is different from the purpose or object of a statute concerned with prohibiting the manufacture of illicit or dangerous drugs (310 - 311).
In Re Avory, the Full Court of the Supreme Court of South Australia construed the phrase 'take part in the manufacture' in s 32(1)(b) of the Controlled Substances Act 1984 (SA). Perry J (Mullighan J agreeing & Besanko J agreeing substantially) held that 'take part in the manufacture' in s 32(1)(b) does not include acts taking place before the process of manufacture has commenced, but does include the transportation of all or some of the materials required for manufacture where they are knowingly intended for manufacture, and the transportation of those materials assists manufacture in an existing manufacturing process [96] - [100]. Besanko J cited McNicol (361) and Jack Zinader and expressed the view that the critical question is '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' [105].
In Beqiri, the appellant had pleaded guilty to two offences under the Criminal Code Act 1995 (Cth) (the Commonwealth Code) including one of manufacturing a marketable quantity of a controlled drug, namely cocaine. Section 305.1 of the Commonwealth Code provided, relevantly, that 'manufacture' meant 'any process by which a substance is produced' and that included 'the process of extracting or refining a substance'. The appellant had participated in extracting cocaine from towels and clothes impregnated with cocaine. When police searched the appellant's premises they found liquid being evaporated from a number of tubs in which clothing and towels were immersed and, also, a number of tubs containing rags and clothing scraps. It was apparent that the cocaine was being subjected to a process of removal. The appellant and his co-offenders had, for that purpose, previously obtained chemicals and equipment including dry chlorine. The Court of Appeal of Victoria (Priest JA; Warren CJ & Vickery AJA agreeing) allowed the appeal against conviction in relation to the count of manufacturing a marketable quantity of a controlled drug. Priest JA said that the word 'manufacture', in the relevant statutory context, 'ordinarily would convey a method of operation by which a "substance", cocaine, was brought into existence from other materials' [29]. The language of s 305.1, when given its ordinary, natural and grammatical meaning, conveyed that 'for a person to be guilty of an offence under that section the person must bring a substance into existence from other materials having chemical or physical properties resulting in a new substance' [32]. His Honour continued:

[99]

In Bucic, the trial judge had decided that the ordinary English meaning of 'manufacture' is 'making something out of something different' and that, as in Beqiri, the evidence established that 'the substance was the same substance before it was absorbed into the paper and after it was extracted from the paper' and, therefore, 'nothing different was being made' [16].
Campbell J accepted that 'making something out of something different' is an ordinary English meaning of 'manufacture', but it is not the ordinary English meaning. Rather, there are a range of possible meanings of 'manufacture' [31].
Campbell J concluded that, in the context of the applicable statutory provisions which, amongst other things, prohibited the manufacture, production and supply of drugs, the definition derived from McNichol was too narrow [41]. His Honour said, without attempting to be exhaustive, that the legal meaning of 'manufacture' in the applicable statutory provisions included 'to work up material into a form for use' [41]. On the Crown's case, it was open to the jury, as a matter of law, to be satisfied beyond reasonable doubt that the respondent and his co-accused were engaged in an activity of that kind [41]. His Honour distinguished Beqiri on the basis that the statutory provisions under consideration in that case were materially different [46] - [49].
In the present case, I am satisfied that the evidence adduced at the trial established that DMT had been 'manufactured' as alleged by the State in the indictment and in its case at the trial. I am of that opinion for the following reasons.
First, the MD Act distinguishes between a 'prohibited drug' and a 'prohibited plant'. Each is separate and distinct from the other. Section 6 creates offences relating to prohibited drugs. Section 7 creates offences relating to prohibited plants.
Secondly, as I have explained, DMT is a 'drug of addiction' and a 'prohibited drug' for the purposes of the MD Act.
Thirdly, as I have explained, by s 4(2)(a) of the MD Act read with the definition of 'prohibited plant' in s 5(1) of the Poisons Act, the plants to which the MD Act applies include plants from which a 'drug of addiction' may be 'obtained, derived or manufactured'. By s 3(1), in the MD Act, unless the contrary intention appears, 'prohibited plant' means 'plant to which this Act applies by virtue of section 4, or part of that plant'.
Fourthly, the word 'plant', in the context of the definition of 'prohibited plant' in s 5(1) of the Poisons Act and the definition of 'prohibited plant' in s 3(1) of the MD Act, bears its ordinary and natural meaning, namely any living organism, of the kind exemplified by trees, shrubs, herbs, grasses, ferns and mosses, which is characterised by the capacity to synthesise food from inorganic substances and by the presence of cellulose in its cell walls.[15] The statutory context and an apparent purpose or object of the MD Act (namely to prohibit the misuse of certain drugs and plants including by prohibiting the production and cultivation of those drugs and plants) indicate that the plants to which the MD Act applies include dead plants and parts of dead plants. Drugs of addiction may be obtained, derived or manufactured from certain plants or parts of plants that are dead. See, generally, R v Francis-Wright.[16]
Fifthly, as I have explained, acacias containing DMT and any parts of those acacias (including dead acacias containing DMT and any parts of those acacias) are 'prohibited plants' for the purposes of the MD Act.
Sixthly, the word 'obtained', in the phrase 'obtained, derived or manufactured' within the definition of 'prohibited plant' in s 5(1) of the Poisons Act, has a broad connotation.[17] Its meaning includes, relevantly, 'to get hold of or to acquire' a drug of addiction, by any manner or means, from any plant. The word 'derived', in the phrase 'obtained, derived or manufactured' within the definition of 'prohibited plant' in s 5(1) of the Poisons Act, also has a broad connotation.[18] Its meaning includes, relevantly, 'to obtain, to get or to acquire' a drug of addiction, by any manner or means, from any plant. The word 'manufactured', in the phrase 'obtained, derived or manufactured' within the definition of 'prohibited plant' in s 5(1) of the Poisons Act, also has a broad connotation.[19] Its meaning includes, relevantly, 'to make' a drug of addiction, by any manner or means, from any plant. The meaning of each critical word in the phrase 'obtained, derived or manufactured' is not unrelated to the meaning of the others. There is significant overlap, especially between the word 'obtained' and the word 'derived'. This indicates the intended breadth of the operation of the phrase.
Seventhly, in my opinion, the term 'manufactures' in s 6(1)(b) of the MD Act, in the context of the offence of manufacturing a 'prohibited drug', includes making a prohibited drug by any manner or means. In particular, the term 'manufactures' in s 6(1)(b) includes making, by any manner or means, a 'prohibited drug' from a 'prohibited plant'. The term 'manufacture' in s 6(1)(b) is not confined to 'making something out of something different' (in the sense adopted and applied in McNichol and Jack Zinader) or to 'working up material into a form for use' (in the sense adopted and applied in Bucic). The meaning that I have said is included within the term 'manufactures' in s 6(1)(b) is an ordinary and natural meaning of the term and gives effect to an apparent purpose or object of the provision, in the context of the MD Act as a whole, namely to prevent the misuse of certain drugs including by prohibiting the production of drugs of addiction.
Eighthly, the jury was entitled to be satisfied beyond reasonable doubt that shredded plant material or bark from acacias containing DMT had been used in making the red-brown liquid found by the police in the two large metal pots.
Ninthly, the DMT in the red-brown liquid had been 'manufactured', contrary to s 6(1)(b) of the MD Act, in that:

[113]

DMT is a hallucinogenic prohibited drug which may be found naturally in the bark and roots of certain species of tree.[23] In order to produce the drug in a form in which it can be used, the plant material must be subjected to a process in which the DMT is extracted, isolated and concentrated. This process requires a number of steps including the use of various solvents and the application of heat. The end result of this process is the production of DMT, usually in powder form. It is in this form that the drug may be consumed.[24]
The State's case, as opened to the jury, was that, on 2 April 2015, the appellant manufactured DMT in the kitchen of a house situated at 33 Cordelia Road, Armadale (the house). The house was occupied by Ms A and her then 6-year-old daughter, IA. Ms A leased the house from Homeswest.[25]
The State's case was that, earlier on 2 April 2015, the appellant had manufactured a quantity of DMT in the kitchen, using various pieces of equipment and chemicals. The finished product was given to Ms A.[26]
At about 8.30 pm on 2 April 2015, while the appellant was in the process of manufacturing more of the drug in the kitchen, a fire broke out in which the appellant suffered burns to his body. At the time of the fire, Ms A and her daughter were asleep. They were awoken by the appellant yelling out Ms A's name. Ms A went into the kitchen and saw that the appellant was on fire. She grabbed IA and took her out of the house. She then went back inside. She and the appellant attempted to extinguish the fire. Ms A saw that the appellant was burnt. At some point, the appellant went into the bathroom and showered in order to relieve his burns.[27]
Meanwhile, Ms A called triple zero. Ambulance officers arrived on the scene first, followed shortly after that by fire and emergency service officers.[28]
Two ambulance officers helped the appellant out of the shower and treated his burns. The appellant was spoken to by both ambulance and fire and emergency services officers.[29]
The State's case was that the appellant told an ambulance officer, Mr Aaron Dean, that he had been 'cooking' shellite (a solvent) and caustic soda on the stove so that he could smoke 'it' with his marijuana. He told the second ambulance officer, Ms Melanie Cartwright, essentially the same thing. He said that while he was 'cooking this stuff' it caught fire and it had poured over him, burning various parts of his body.[30]
Later, according to the State, a fire and emergency services officer, Mr Paul Paardekooper, spoke to the appellant. The appellant told Mr Paardekooper he had been cooking shellite on the stove. Officers from the fire and emergency services then entered the house and saw a pot on the kitchen floor that was on fire. After the house was safe to enter, Mr Paardekooper again approached the appellant, who allegedly told him that he had been making DMT. The appellant told Mr Paardekooper that DMT was a hallucinogenic which he would mix with his marijuana.[31]
In the early hours of 3 April 2015, officers from the Organised Crime Squad attended the house, along with Ms Hannah Crisp, a chemist employed by the Chemistry Centre of Western Australia.[32]
The house was searched and numerous items consistent with the manufacture of DMT were located. A clipseal bag containing a light brown powder was recovered from Ms A's handbag. Later analysis of this substance showed it to be DMT. The police also found shredded plant material or bark and two large metal pots containing a red-brown liquid which, on later analysis, tested positive for DMT. In addition, police located and recovered numerous empty vinegar containers and two empty caustic soda containers. Both these substances are used in the process of 'cooking' DMT.[33]
On 18 May 2015, the appellant took part in a video-recorded interview with Detective Senior Constable Kelly. He acknowledged he was present at Ms A's house on 2 April 2015 and that he had sustained burns attempting to put the fire out. While he admitted knowing about DMT and that he had heard how it was made, he denied making it or attempting to make it on 2 April 2015 or on any other occasion. He said that another man, Byron Harvey, had been in the house 'cooking' DMT but he (Mr Harvey) 'had taken off'.[34]
The appellant elected to give evidence in his defence. He admitted being at Ms A's house on 2 April 2015.[35] He said that he had seen Ms A and Mr Harvey 'cook' DMT at the house on previous occasions.[36] He testified that on the day in question he arrived at Ms A's house between 8.00 pm and 9.00 pm. Upon arriving, Mr Harvey opened the door and allowed him in. The appellant said that he smelled smoke and other odours coming from the kitchen. The appellant testified that he went into the kitchen and saw that it was on fire. He tried to extinguish the fire and was burnt in the process.[37]
The appellant testified that Mr Harvey left the premises.[38] He denied telling any of the emergency service workers that he had been 'cooking' DMT.[39] He admitted having used the drug in a cigarette in the past.[40]
In essence, the appellant's defence was that he did not manufacture or attempt to manufacture DMT at Ms A's house on 2 April 2015 or at any other time. His case was that on 2 April 2015, Mr Harvey and Ms A manufactured, or were in the process of manufacturing, DMT. He said that he sustained burns extinguishing the fire that they had caused.

[120]

Ms A testified that the appellant had been living at her house on 2 April 2015 and that he had been there for approximately a year.[59] She described his relationship to her as 'my friend only'.[60]
Ms A said that at about 4.30 pm on 2 April 2015, she and her daughter, IA, were in the lounge room watching cartoons. She said the only male person at the house was the appellant, though he was not at the house when Ms A and IA were watching cartoons.[61] At some point, she and her daughter fell asleep. When she woke up it was dark. She heard the appellant scream her name. She went to the kitchen and saw what she described as 'a wall of flames'.[62] She then put IA outside and ran back into the house.[63]
On the appellant's instructions she attempted to smother the fire. At this stage, there was no one else in the house apart from her and the appellant.[64]
Ms A testified that there was no discussion between her and the appellant about the source of the fire.[65]
Ms A recalled that, at one point, she was the only person in the kitchen trying to put the fire out. Soon after, she found the appellant, 'badly burnt', in the shower.[66]
Against the appellant's wishes, Ms A called for an ambulance.[67] Eventually, some police officers and firefighters came to the house.[68]
Ms A said that, after the incident on 2 April 2015, she was charged with attempted manufacture of DMT. Eventually, that charge was 'downgraded' to allege an offence of allowing a person to manufacture DMT in the house. She pleaded guilty to this offence.[69] She had not been sentenced at the time of the appellant's trial.
Under cross-examination, she denied that the police proposed to her that they would downgrade the charge if she gave evidence for the prosecution against the appellant.[70]
Ms A said that she knew a man named 'Byron'. She denied that she had been in a relationship with him. She said that Byron came to her house once, 'stole something from [her]' and that he was not welcome there again.[71]
Ms A denied that Byron had been in the house on 2 April 2015. As far as she was aware, Byron was in New Zealand at the time.[72]
Ms A recalled the appellant telling the ambulance officers that there were chemicals in the house and to inform the firefighters of this when they arrived.[73] She also recalled telling the firefighters that there was vinegar in the kitchen for making chips.[74]
She admitted that the police found a clipseal bag containing a powdery substance in her handbag.[75]
Defence counsel showed Ms A a transcript of a conversation she had with police officers at her house in the early hours of 3 April 2015. She accepted that she told the police officers that she had smoked DMT on one occasion,[76] and that 'it tasted disgusting'.[77] She agreed that the police found, in addition to the clipseal bag containing the powdery substance, some empty clipseal bags and a syringe.[78]
When defence counsel suggested to Ms A that she and Byron Harvey had been making DMT at her house, she said that suggestion was 'absolutely absurd'.[79] She denied the fire at her house was caused by Mr Harvey making DMT.[80]
When she was asked by defence counsel why she had pleaded guilty to a charge of knowingly allowing her premises to be used for the manufacture of DMT when her evidence was that, at the time the drug was being manufactured, she was asleep and did not know what was going on in the kitchen, she said:[81]

[124]

Ms Crisp holds a Bachelor of Science degree with Honours in forensic science from Curtin University and is an approved analyst under the MDA.[93] She is employed at the ChemCentre and is the team leader of the clandestine laboratory section.[94]
In the early hours of 3 April 2015, at the request of Detective Michael Kelly from the Organised Crime Squad, she attended at the house, both the inside and outside. She located various items and took a number of samples for subsequent forensic analysis. She conducted a 'video walk-through' of the premises, which was shown to the jury and marked exhibit 1.[95]
Ms Crisp testified that DMT can be produced either by chemical synthesis or through extraction from plant material.[96]
Ms Crisp explained that DMT occurs naturally 'in very low doses'[97] in certain species of tree. However, it can be extracted and concentrated from that plant material and rendered into a powder or paste.[98] It is unnecessary to describe in minute detail all of the steps necessary to produce these forms of DMT. The process begins with the plant material being shredded or 'powdered up'. Typically, this material is placed in a large container with a weak acid such as vinegar to which heat is applied. This draws the DMT from the plant material. Once this step is completed, caustic soda or some similar substance is added in order to increase the pH. Following this, an organic solvent such as shellite or toluene is added. As a result, two layers of liquid will form. The top layer comprises the DMT and solvent. This layer is then removed and the solvent is evaporated off, leaving the DMT.[99]
Ms Crisp testified to the effect that once the DMT is in its powdered form, it could be smoked, ingested or injected.[100]
Ms Crisp explained that the process she described ran the risk of explosion or fire because of the presence of a flammable solvent such as shellite or toluene near an open flame. The substance might spill onto the floor or, if the solvent becomes warm and forms a gas, it may come into contact with an open flame and ignite.[101]
In the course of her inspection of the house, Ms Crisp found a number of items consistent with the production of DMT from plant material, including shredded bark, numerous empty bottles of vinegar, caustic soda containers, and large cooking pots containing a red or brown stained liquid, one of which contained two layers of liquid consistent with the process she described.[102] Ms Crisp noted the presence of a colander or strainer which she said could be used to strain the liquid to remove the plant material.[103] She also noted the presence of a small hatchet or axe which she said could be used to cut bark into smaller pieces.[104]
Ms Crisp was unable to be precise as to how long the process of obtaining DMT from plant material might take. The step of extracting DMT by immersing the plant material in vinegar and applying heat - referred to in Ms Crisp's evidence as 'boiling' - could take about two hours or longer.[105] The whole process could take from three to six hours.[106]
In cross-examination, Ms Crisp said that, as soon as vinegar was added to the plant material and heat was applied, the extraction process had begun. However, in order to obtain DMT, she said 'you would still need to add a solvent to isolate the DMT from the plant material'.[107] She reiterated in cross-examination that the final form in which DMT is produced is either as a powder or a paste.[108]

[132]

Dectective Kelly is a detective senior constable of police, stationed at the Organised Crime Squad.[119]
At about 12.40 am on 3 April 2015, he attended at the house with other officers and Ms Hannah Crisp. There he met Ms A and executed a search warrant.[120]
Detective Kelly testified that a plastic bag which contained wet, brown powder that had been seized from Ms A, was sent for analysis.[121] Through Detective Kelly, the prosecutor tendered a certificate of approved analyst with respect to the wet, brown powder, which said that the powder weighed 0.15 g and that DMT was a component of it.[122]
Without objection, Detective Kelly testified that a forensic officer had lifted the appellant's palm print from a vinegar bottle found in the back bedroom of the house.[123]
Detective Kelly interviewed the appellant under caution on 18 May 2016. The interview was recorded on video. With the agreement of defence counsel, an edited version of that interview was tendered in evidence and played to the jury.[124] In the record of interview, the appellant said:
1. On the day in question he rode to Ms A's house on a bike, after 'riding around for a couple hours'.[125]
2. When he got there he saw 'the owner of the property' and her daughter 'out the front'.[126]
3. He entered the house and saw two pots 'smouldering, burning away'.[127]
4. By then, Byron Harvey 'had taken off'.[128]
5. He had seen Byron Harvey make DMT at Ms A's address 'maybe a couple of months before that'.[129]
6. The appellant did not see Byron Harvey at the house that night.[130]
7. When he went into the house he saw, 'basically, a fire smouldering underneath ... a couple of ... blankets'.[131]
8. He attempted to extinguish the fire and, in the process, he was burnt.[132]
9. He had tried DMT by smoking it in a cigarette, but he did not like it.[133]
10. Byron Harvey had gone back to New Zealand. The appellant said that he had 'people looking for him'.[134] Later, the appellant said that he had heard that Byron Harvey had left 'within a week, two' of the fire.[135]
11. He was not involved in the production of drugs at Ms A's house on 2 April 2015 and that it was a case of being at the 'wrong place at the wrong time'.[136]
Detective Kelly said that a Byron Harvey was identified on the police database system. A detective was assigned to attend his last known address, but it was found that he was not living there. An alert was placed on the database in the event that he had contact with the police. Detective Kelly had not spoken to Mr Harvey.[137]
In cross-examination, Detective Kelly was asked questions about the decision to downgrade the charge originally laid against Ms A of attempting to manufacture DMT, to knowingly allowing a premises to be used for the manufacture of drugs. He denied saying anything to Ms A to the effect that if she assisted or gave evidence for the prosecution, the charge would be downgraded. Further, he did not say to Ms A that if she gave evidence or assisted the prosecution, it would be relevant to her sentencing for the downgraded charge.[138]
Defence counsel also cross-examined Detective Kelly about Mr Harvey. Detective Kelly said that the police database revealed that Mr Harvey had committed 'some traffic offences',[139] and that he had been convicted of possession of methylamphetamine, possession of a weapon, trespass, disorderly conduct and breach of bail. Detective Kelly said that no enquiry had been made as to whether Mr Harvey had left Australia.[140]

[134]

After the prosecutor read Dr Harmey's statement, he closed the State's case. Defence counsel then made an application that the appellant had no case to answer.[143]
In support of this application, defence counsel focused on the expert testimony of Ms Crisp and Ms Murdock. He submitted that, at its highest, their evidence established only that DMT in its natural form had been extracted from the bark to the extent that it was present in the upper layer of liquid in the pot that Ms Crisp discovered at the crime scene and which was subsequently analysed by Ms Murdock. However, DMT, in its usable form of being a powder or paste, was not discovered.[144]
Defence counsel submitted that a prohibited drug is not manufactured until it is in a usable form. In support of this proposition, defence counsel cited Murray AJA's statement in McKeagg v The Queen,[145] to the effect that to manufacture a prohibited drug requires the final production of the drug.[146]
In argument, the prosecutor, as he had in his opening address, submitted that the DMT in Ms A's possession had been manufactured by the appellant in the same process in which he had been burnt. The trial judge told the prosecutor that he was not 'going to buy it [the submission]'.[147]
The prosecutor then submitted that the DMT was manufactured because it had been created by it being extracted from the bark.[148]
In the brief reasons for rejecting the no case submission, his Honour referred to the evidence of Ms Murdock, to the effect that DMT had been extracted from the plant material, albeit that it was in liquid form. Based on his understanding of the evidence of Ms Crisp, he concluded that there was sufficient evidence that the liquid in the pot 'could be ingested or injected'.[149]
His Honour said that, even if he was wrong, 'there's at least an attempt ... to manufacture the DMT'.[150] His Honour adopted Murray AJA's definition of the word 'manufacture' in s 6(1)(b) of the MDA, 'There is a manufacturing having taking [sic] place in the sense of having made something out of something different'.[151]

[135]

As we said earlier, the appellant elected to give evidence at trial.
The appellant said that prior to the fire, he had known Ms A for 'maybe a year or ... more'.[152] He said that, at the time of the fire, he was living with his mother in Hamilton Hill, and visited Ms A's house 'on average about three times a week'.[153] He denied living at Ms A's house.[154]
The appellant said that he introduced Byron Harvey to Ms A a few months before the fire. He said that Mr Harvey was from New Zealand. As far as the appellant knew, Mr Harvey and Ms A were engaged in a sexual relationship.[155]
On 2 April 2015, the appellant said he went to Ms A's house, arriving at between 8.00 pm and 9.00 pm. When he arrived, Mr Harvey opened the front door.[156] The appellant said that he noticed smoke in the kitchen, and that he 'smelt some odours'.[157]
The appellant said that Mr Harvey then 'took off' from the house. Before doing so, he said 'don't ring the - the fire brigade or anything'.[158]
The appellant said that he saw a fire in the middle of the kitchen. He told Ms A to ring the fire brigade, and that he tried to 'pat the fire out' using anything he could find, including curtains, a towel and blankets.[159]
The appellant said that shortly after he began to extinguish the fire, he sustained burns, mainly to his left foot.[160]
The appellant testified that he noticed containers in the kitchen, similar to those that Mr Harvey had used to 'cook' DMT on previous occasions.[161]
The appellant said that he fought the fire in the kitchen for between 5 and 10 minutes, after which he put himself in the shower.[162]
While he was in the shower, ambulance officers entered the bathroom. He denied telling a male ambulance officer that he had been cooking or making anything.[163]
The appellant denied telling a fireman that he had been 'cooking' DV8, or that he had been 'cooking' anything in the kitchen. Further, the appellant denied saying anything to the fireman about shellite or caustic soda.[164]
The appellant denied that he had manufactured or attempted to manufacture DMT, or anything else, at Ms A's house on 2 April 2015, or at any other time.[165]
In cross-examination the appellant said:

[148]

There is nothing reportedly still burning.
Everyone is safe and out of danger.
It's not known how he was burnt/injured.
It is the italicised part of the call card that is the additional evidence at the heart of this ground of appeal.
In respect of the call card, on 23 October 2017, the respondent filed an application to adduce additional evidence supported by the affidavit of Helen Elizabeth Crew, sworn 20 October 2017.[178] The additional evidence sought to be adduced is an email sent to the appellant's trial counsel by the prosecutor on 8 March 2017, which attached a copy of the call card.
The appellant contends that the call card demonstrates that it is not known how the injuries he received on 2 April 2015 occurred.
Ground 3 has no merit.
The legal principles relevant to the admission of additional evidence on appeal were stated by Buss P in Rodi v The State of Western Australia.[179] It is unnecessary to repeat what his Honour wrote on that occasion. It is enough to say this: s 39(1) of the Criminal Appeals Act 2004 (WA) (CAA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40. By s 40(1)(e), an appeal court may admit any other evidence. The discretionary power conferred by s 40(1)(e) is not expressly limited or confined. The well-known common law principles which touch upon the distinction between new and fresh evidence, while not necessarily determinative of the manner of the exercise of the statutory discretion, are weighty, to the point where it will be a rare case in which the exercise of the statutory discretion produces a different outcome to that produced by the application of the common law principles.
The additional evidence sought to be adduced by the appellant is new, as distinct from fresh, evidence, because, as the affidavit of Ms Crew shows, it had been provided to the appellant's counsel before his trial. It was clearly available to be used in the appellant's defence. Unless the new evidence establishes that the appellant is innocent or it raises such a doubt that this court is satisfied that the appellant should not have been convicted, the appeal will not be allowed on this basis.
The call card states that the person who called St John's had Ms A's first given name. It may be inferred that the information provided in that call came from her. If Ms A made a statement to St John's that she did not know how the appellant was burnt or injured, it is consistent with the evidence that she gave at trial. The statement in the call card is no more than an expression of what was known at the point in time in which the emergency call was made to St John's. The statement in the call card carries with it, at best, little weight as to what caused the burns sustained by the appellant. It falls a long way short of demonstrating that the appellant is innocent and does not raise a doubt that the appellant should not have been convicted.
We observe that, prior to the hearing of the appeal, the appellant sought and was given leave to issue a summons to St John's to produce to the court an audio-recording of communications between the ambulance in which the appellant was transported and Fiona Stanley Hospital on 2 April 2015. It appears that the summons was not served on St John's. No audio-recording was produced to the court.
We would refuse leave to appeal on ground 3 and dismiss the application to adduce additional evidence.

[149]

We will deal with grounds 1 and 2 together.
The gravamen of these grounds is the same. This is because each ground alleges that, on the evidence adduced at trial, the appellant could not have been convicted of the charge in the indictment.
The appellant's submissions have three limbs. The first two limbs raise issues as to the proper construction of s 6(1)(b) of the MDA, in particular, what is the meaning of the verb 'manufactures' in that subsection. The appellant submits that the ordinary meaning of 'manufactures' is, in essence, to make something out of something else. Further, it requires whatever is made to be in its final usable form.[180]
The first limb of the appellant's submissions is that the evidence adduced at trial related to a process where DMT, which occurs naturally in certain plant material, was extracted from that material. In other words, nothing different was being made. The DMT was always DMT.[181]
The second limb of the appellant's submissions is that, in any event, what was produced was in the liquid form described by Ms Crisp in her evidence, and was not in its final usable form. To be used, DMT must be in the form of a powder or paste that could be smoked, injected or ingested.[182]
The third limb of the appellant's submissions is that whatever occurred at Ms A's house on 2 April 2015, he was not the offender. The appellant submits that the evidence adduced at trial was incapable of establishing that he was 'cooking' the DMT. The appellant submitted that the evidence of the ambulance and fire and emergency service officers and Ms A was incapable of belief, and that he sustained his burns while attempting to put out the fire caused by the activities of Byron Harvey and/or Ms A.[183]
On the question of the proper construction of the word 'manufactures', the respondent submitted that its meaning was broader than that contended by the appellant. The respondent submitted that the word also means (as the trial judge ultimately directed the jury) 'to make up or bring raw materials, ingredients etc. into a form suitable for use' and 'to work up as, or convert into a specified product'.[184]
The respondent submitted that the process of extracting DMT from plant material came within either of these definitions, and that it did not matter that the DMT was not in its final usable form.[185] The respondent argued that on the evidence of the observations of Ms Crisp and the analysis undertaken by Ms Murdock, DMT had been extracted, albeit that it was still mixed with solvent. Thus, a completed offence under s 6(1)(b) of the MDA had been committed.
As to the appellant's submission that the evidence was insufficient to prove that the appellant was the offender, the respondent argued that there was ample evidence to support the conclusion that he was the offender.[186]
The respondent submitted that if this court concluded that the appellant had not manufactured DMT in its final form, the evidence clearly established that he had attempted to manufacture DMT, contrary to s 33(1) of the MDA, and that this court should, pursuant to s 30(5)(c) of the CAA enter a conviction for that offence.[187]
In the course of oral submissions, an issue arose of whether, if the appellant had not manufactured or attempted to manufacture DMT, he had prepared or attempted to prepare the drug and, if so, could this court enter such a conviction under s 30(5)(c) of the CAA.[188]

[156]

The general principles of statutory construction, which we adopt, were summarised by this court in Director General of the Department of Transport v McKenzie.[191]
The text of s 6(1)(b) of the MDA states that a person who manufactures or prepares a prohibited drug commits a crime.
Two things may immediately be noted. First, the verbs 'manufactures' and 'prepares' are separated by the word 'or'. Here, 'or' is used in a disjunctive sense, thus connoting that the words 'manufactures' and 'prepares' are different or alternative processes, each of which attract criminal liability. Second, the words 'manufactures' and 'prepares' pertain to prohibited drugs, that is, the drugs which are prohibited by s 4 of the MDA.
We have already observed that the word 'manufactures' is not defined in the MDA. Neither, for that matter, is the word 'prepares'.
We are unable to discern any reason why either word should not be given its natural or ordinary meaning, bearing in mind that it must be construed in the context that it pertains to prohibited drugs.
The only occasion in which this court or its predecessor considered the meaning of the word 'manufactures' in s 6(1)(b) of the MDA was in McKeagg v The Queen. In that case, the appellant was convicted after trial of manufacturing methylamphetamine (count 1) and attempting to manufacture methylamphetamine (count 2). In neither count did the prosecution allege that the appellant had manufactured methylamphetamine in its final form. In respect of count 1, the trial judge directed the jury that to prove that the accused had manufactured methylamphetamine, the State must establish, inter alia, that 'he was ... engaged in the process of manufacture ...'. [192] The court held that this direction was erroneous. The appeal was allowed. The court substituted a verdict on count 1 of guilty of attempted manufacture of a prohibited drug.
Murray AJA (with whom Pullin JA agreed) held that the word 'manufactures' in s 6(1)(b) of the MDA meant, in its ordinary English meaning, 'making something out of something different', citing Dixon J's judgment in Federal Commissioner of Taxation v Jack Zinader Pty Ltd.[193] His Honour also held that a person does not manufacture something within the meaning of s 6(1)(b) 'until you make the prohibited drug. That is the completed offence, the production of the drug'.[194]
Roberts-Smith JA analysed analogous statutory provisions and cases from elsewhere in Australia. His Honour made the point that the relevant legislation in these jurisdictions have, unlike Western Australia, an extended definition of the word 'manufacture' which embraces the processes and other preparatory steps leading to the completion of the production of the manufactured substance.[195] Roberts-Smith JA concluded that as there was no extended definition of 'manufactures' in the MDA, it was necessary for the Crown to prove that the process of manufacture had been completed and methylamphetamine had been produced.[196]
The meaning of the word 'manufacture' has recently been considered by the Court of Appeal of Victoria in Beqiri v The Queen,[197] and by the Court of Criminal Appeal of New South Wales in R v Bucic.[198] Beqiri raised a question as to the proper construction of 'manufacture' as defined in s 305.1(1) of the Criminal Code Act 1995 (Cth) (the Code), which provides:

[163]

In each of these cases, the accused was convicted of an offence relating to the manufacture of cocaine in circumstances where he had extracted cocaine that had been impregnated in towels and clothes (Beqiri) and paper (Bucic).
The outcomes in each case depended upon the particular statutory provisions under consideration. In Beqiri, Priest JA (with whom Warren CJ and Vickery AJA agreed) held that the process of retrieving, from towels and clothing, cocaine, a substance that had already been manufactured, was not extracting any new substance. At all times, the substance concerned was cocaine. In these circumstances, there was no manufacture for the purpose of s 305.1(1) of the Code.[199] Priest JA held that the ordinary meaning of the word 'manufacture' was 'to make something out of something else', and cited Jack Zinader and McKeagg with apparent approval.
In Bucic, Campbell J (with whom Hoeben CJ at CL and Harrison J agreed) found that the process of extracting cocaine from paper was a step in the process of extracting the drug within the definition in s 3 of the DMTA. Campbell J held that Beqiri had no application to the construction of s 3 of the DMTA, having regard to the differences between the definition in that section and the definition in the Code.[200]
The facts of these cases have some similarity to the present case in the sense that they concern the extraction of a prohibited drug. Doubtless, this is why the cases were brought to the attention of the trial judge and were cited and analysed in the written submissions in this court. Ultimately, however, they do not greatly assist in the task of construing s 6(1)(b) of the MDA. This is because the legislation under consideration in Beqiri and Bucic is very different to the MDA.
However, in Bucic, Campbell J discussed the ordinary meaning of the word 'manufacture'. Campbell J made the following observations about the ordinary meaning of the word 'manufacture', with which we respectfully agree:[201]
1. While 'making something out of something different' is an ordinary English meaning of 'manufacture', it is not the only ordinary meaning of the word.
2. Although dictionary definitions assist in the interpretation process in identifying the range of possible meanings a word may bear in various contexts, it will not assist in ascertaining the precise meaning a word bears in a particular context. Dictionaries are no substitute for the interpretative process.[202]
3. Insofar as dictionary meanings are able to assist, none of the range of meanings of the word 'manufacture' in the Macquarie Dictionary or the Oxford English Online Dictionary include 'to make something from something different'. The Oxford English Dictionary speaks of making something from raw materials or 'converting' something. Amongst the definitions in the Macquarie Dictionary is to work up (material) into a form of use.
4. Jack Zinader (the case relied upon by Murray AJA in McKeagg, and later by Priest JA in Beqiri) was a revenue case. In that case, Dixon J approved the definition of 'manufacture' given by Darling J in McNicol v Pinch,[203] who said:

[166]

As we have said, the word 'manufactures' in s 6(1)(b) of the MDA must be construed in context. Part of that context is that the word does not appear alone in that subparagraph. The word 'prepares' also appears. The two words are, as we have observed, separated by the disjunctive 'or'. It must be inferred that Parliament in prohibiting the preparation of a prohibited drug, intended to prohibit conduct different to the manufacture of a prohibited drug.
Neither this court nor its predecessor has been required to construe the word 'prepares' in s 6(1)(b) of the MDA.
The range of possible meanings of the word 'prepare' includes 'to make ready, or put in due condition, for something' or 'to manufacture, compound or compose'.[204] The Macquarie Online Dictionary defines the verb 'compound' in a number of ways, including 'to make up or constitute'. Among other meanings, the Oxford English Online Dictionary defines 'prepare' as 'to produce, form, or make, especially by bringing together ingredients or components; to manufacture; to synthesise, concoct, compound'. It may be seen that the dictionary meaning of the verb 'prepares' overlaps with that of 'manufactures'.
While the concepts of manufacture and preparation overlap, the terms also have distinct areas of application. For example, the combination of other chemicals to create methylamphetamine might be regarded as a 'manufacture' but not a 'preparation' of methylamphetamine. Conversely, taking methylamphetamine which is already in usable form, diluting it with a cutting agent and placing it in packages ready for sale may involve preparation, but not manufacture, of methylamphetamine.
The purpose of the MDA is to prevent the misuse of harmful illicit drugs and plants by, amongst other things, prohibiting their possession, sale, supply, preparation and, in the case of illicit plants, cultivation. Having regard to purpose and context, we see no reason why the verb 'manufactures', in s 6(1)(b) of the MDA, should be construed narrowly. In our view, the meaning of the word includes, as Murray AJA held, to make something out of something different, but also to make the material into a usable form. Thus, while the word 'manufactures' embraces, for example, such processes as the manufacture of methylamphetamine by the Birch reduction method, it also embraces an extraction process of the kind described by Ms Crisp and Ms Murdock in their evidence. That process began with DMT in low concentrations in plant material which was, at that point, in a completely unusable form. By the process they described, the DMT was extracted and concentrated using chemicals and heat. Once completed, the DMT in the plant material which had existed in low concentration and was unusable, was made into a form for which it could be used.
Further, the extraction process used in this case also constituted the preparation of DMT in that the process made ready the prohibited drug for use.
To sum up, reference to 'manufacture' in the MDA encompasses both aspects of the ordinary meaning of the term - making a prohibited drug out of something different and working up a prohibited drug into a form for use. In the present case, the first aspect of the ordinary meaning of 'manufacture' is not relevant - the DMT always existed and was not made by the process undertaken in the kitchen of the house. However, the second aspect of the ordinary meaning of 'manufacture' was applicable to the process being undertaken in the kitchen of the house. In our opinion, to manufacture a prohibited drug, within the meaning of the MDA, includes extracting the drug from a natural source by using chemicals and heat, as a result of which the drug in question is produced in a usable form. The process used in the present case was a process of manufacturing. It was also a process of preparation.

[168]

The State did not, on appeal, maintain the position that the DMT found in Ms A's possession was the subject of the charge in the indictment.
There was no evidence that DMT, in its powder or paste form, had been produced as a result of the process in which the appellant was allegedly burnt. Ms Crisp testified to the effect that, once the DMT is in its final form, it could be smoked, ingested or injected.[205] Ms Crisp did not say that the layer of liquid in which extracted DMT and solvent were present could be used in any of the ways she mentioned.
Ms Murdock equated the manufacture of DMT with the extraction of the drug into liquid. However, she was not familiar with the way in which DMT was ingested.[206] She did not say that DMT, which had been extracted into the liquid used in the manufacture process, was capable of use.
In his reasons for rejecting the no case submission, his Honour concluded that there was sufficient evidence that the liquid in the pot found in Ms A's kitchen 'could be ingested or injected'.[207] With respect, this was a misunderstanding of Ms Crisp's evidence. She did not testify to this effect, and neither did Ms Murdock. While the manufacture of DMT had well and truly begun, it was incomplete at the time the appellant was burnt. There was no evidence that DMT in a usable form had been produced. There was no evidence that the DMT was usable in the solution, where its concentration would be low and the toxic caustic soda and solvent would preclude the ingestion or injecting the drug. As the court held in McKeagg, the offence of manufacture is only committed when manufacture has occurred. In this case, that would occur only when the DMT was converted into a usable form, which the evidence did not establish to occur before completion of the process of extraction, isolation and concentration of DMT into a paste or powder. The process of manufacture was not complete at the time the fire started, when the DMT was still in solution.
In our opinion, having regard to all of the evidence, it was not open to either his Honour or the jury to conclude that DMT had been manufactured.
However, there was ample evidence to establish that the process of manufacturing DMT had commenced and had proceeded to a reasonably advanced stage whereby DMT, which originated from the bark, had been extracted into a solvent. The next stage in the process, which involved the evaporation of the solvent, had not commenced. Until that stage was completed, no usable DMT could be produced. In our opinion, the evidence clearly showed that someone attempted to manufacture DMT. The acts which we have described were more than merely preparatory and they were plainly done with the intention of manufacturing DMT and thereby committing an offence contrary to s 6(1)(b) of the MDA.[208]

At a glance

Court

Decision date

Before

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Judgment (241 paragraphs)

VALERIO -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2018] WASCA 158 (11 September 2018)

Legislation Cited (7)

Cases Cited (12)