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Court of Criminal Appeal 15 May 2001

Regina v B D

[2001] NSWCCA 184

Also reported as 122 A Crim R 28
Drugs

Citation: Regina v B D [2001] NSWCCA 184
Court: NSW Court of Criminal Appeal
Date: 15 May 2001
Judge(s): Stein JA, Greg James J, Bell J

Background

The respondent was stopped by police while driving along the Hume Highway and found to be carrying a large quantity of Sudafed tablets (containing pseudoephedrine), red phosphorous, orthophosphoric acid, and new chemistry glassware. No solvent or iodide salt was found, meaning not all chemicals necessary to complete the manufacture of methylamphetamine were present. The respondent was charged under s 24(2) of the Drug Misuse and Trafficking Act 1985 with knowingly taking part in the manufacture of a prohibited drug in a commercial quantity.

At trial before Judge Graham in the District Court, the Crown case was that acquiring and transporting these ingredients and implements constituted taking a step in the process of manufacture under s 6(a) of the Act. At the close of the Crown's case, his Honour found no case to answer and entered a verdict of not guilty.

The Director of Public Prosecutions then submitted a question of law to the Court of Criminal Appeal under s 5A(2) of the Criminal Appeal Act 1912. That provision allows the DPP to seek a ruling on a question of law arising from a trial, but the determination does not affect or invalidate the verdict already entered.

  • Whether obtaining and transporting ingredients and implements to be used in the manufacture of methylamphetamine constitutes "taking a step in the process of manufacture" within the meaning of s 6 of the Drug Misuse and Trafficking Act 1985.
  • Whether the District Court judge erred in law in concluding that such conduct fell outside the statutory definition in s 6(a).

Decision

The Court of Criminal Appeal answered the submitted question in the negative, confirming that Judge Graham did not err in law. Bell J (with Stein JA and Greg James J agreeing) accepted both the reasoning and the conclusion reached at trial.

The critical distinction drawn was between acts that are merely preparatory and acts that constitute genuine intermediate steps in the process of manufacture. Section 6(a) of the Act requires that a person take or participate in a step in the process of manufacture itself. Acquiring and transporting chemicals and equipment, however purposeful the intention, amounts to equipping oneself to manufacture rather than participating in that manufacture.

The Court noted that s 6 and s 24 of the Act were unambiguous and did not admit of the broader construction the Crown sought to advance. The Court also acknowledged the subsequent enactment of s 24A by the Crimes Legislation Further Amendment Act 2000, which created a specific offence of possessing a precursor substance intended for use in drug manufacture. That legislative development, while producing some anomalies in the overall scheme, was not needed as a construction aid given the clarity of the existing provisions.

Orders Made

• The question of law submitted by the Director of Public Prosecutions is answered "no"

Key Takeaways

  • Under s 6(a) of the Drug Misuse and Trafficking Act 1985, a person takes part in the manufacture of a prohibited drug only by taking or participating in a step in the actual process of manufacture, not by preparatory acts leading up to that process.
  • The Court of Criminal Appeal confirmed that acquiring and transporting precursor chemicals and chemistry equipment, even with a clear intention to manufacture methylamphetamine, does not satisfy the statutory threshold of "taking a step in the process of manufacture."
  • A distinction exists between preparatory conduct (such as gathering ingredients and implements) and intermediate steps that form part of the manufacturing process itself; only the latter falls within s 6(a).
  • The 2000 amendment introducing s 24A addressed the gap left by this construction by creating a separate, lower-penalty offence for possession of a precursor substance with the requisite intention.
  • A DPP reference under s 5A(2) of the Criminal Appeal Act 1912 resolves questions of law for future guidance but cannot disturb the verdict already entered at trial.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5A(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 6, 24(2), 24A
- Crimes Legislation Further Amendment Act 2000 (NSW)
- Drug Misuse and Trafficking Amendment (Precursors) Regulation 2000

Cases:
- Director of Public Prosecutions Reference No 2 of 1995 (1995) 65 SASR 508
- Federal Commissioner of Taxation v Jack Zinader Pty Ltd (1949) 78 CLR 336
- McNicol v Pinch [1906] 2 KB 352
- R v Kouroumalos [2000] NSWCCA 453
- R v Thomas (1993) 67 A Crim R 308