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Court of Criminal Appeal 4 July 2001

R v McCOY

[2001] NSWCCA 255

Also reported as 51 NSWLR 702
Drugs

Citation: R v McCoy [2001] NSWCCA 255
Court: NSW Court of Criminal Appeal
Date: 4 July 2001
Judge(s): Giles JA, Hulme J, Adams J

Background

The appellant was convicted in the District Court of knowingly taking part in the manufacture of methylamphetamine, a prohibited drug, between December 1995 and June 1996. The case was run at trial on a narrow basis: the jury was directed to focus on activities occurring at and immediately before the appellant's arrest on 13 June 1996.

The central undisputed fact was that the chemicals actually being used in the attempted production were incapable of producing methylamphetamine. The nature of those chemicals had apparently been misrepresented to the appellant and others involved in the operation. The appellant's genuine belief that the process would yield methylamphetamine was therefore not in doubt, but the process itself was chemically impossible from the outset.

The appellant was sentenced to one year's imprisonment, suspended on a good behaviour bond. He appealed his conviction on three grounds, arguing the trial judge should have directed an acquittal, that the evidence could not support the conviction, and that the verdict was unreasonable.

  • Whether a person can be convicted of taking part in the "manufacture" of a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW) where the process being carried out was, from the start, chemically incapable of producing that drug
  • Whether the concept of a "process of manufacture" under the Act can encompass an attempt that was objectively impossible to complete
  • Whether the trial judge erred in refusing to direct the jury to acquit at the close of the Crown case

Decision

Hulme J, with whom Giles JA and Adams J agreed, allowed the appeal and quashed the conviction. The court held that, on the facts as presented to the jury, there was no "process of manufacture of methylamphetamine" within the meaning of the Drug Misuse and Trafficking Act 1985.

The court acknowledged the earlier decision in Thomas (1993) 67 A Crim R 308, which had taken a broad view of what constitutes a "step in the process" of manufacture, including preparatory acts that precede the final production stage. However, Hulme J distinguished Thomas on the basis that, in that case, an external supervening event had interrupted an otherwise viable manufacturing process. Here, the impediment was not external: the process itself was never capable of producing the prohibited drug.

Hulme J reasoned that, however genuine the appellant's belief that the chemicals would produce methylamphetamine, a process that is chemically incapable of yielding that drug cannot realistically be described as a step in the manufacture of it. The court illustrated the point starkly: a person who genuinely but mistakenly believes that combining hydrogen and oxygen produces methylamphetamine is not, in combining those elements, taking a step in a process of manufacturing methylamphetamine. The chemicals in this case were simply not appropriate for the purpose.

The court also noted that, while the appellant may well have been guilty of attempting to manufacture methylamphetamine, that was not the offence charged. The Crown had presented the case on a specific and narrow process, and a hypothetical future attempt using different chemicals would have constituted a different process altogether. Ground 3 (unreasonable verdict) was not separately addressed given the outcome on grounds 1 and 2.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • Verdict of acquittal entered

Key Takeaways

  • A conviction for knowingly taking part in the manufacture of a prohibited drug under s 24(1) of the Drug Misuse and Trafficking Act 1985 requires that there be an actual process of manufacture of that prohibited drug. Where the process is objectively incapable of producing the drug from the outset, that element is not satisfied.
  • The breadth of "taking a step in the process of manufacture" recognised in Thomas does not extend to cover a process rendered impossible by the nature of the chemicals involved. Thomas turned on a supervening external interruption to an otherwise viable process.
  • Genuine subjective belief that a process will produce a prohibited drug is relevant but not sufficient on its own to establish the offence. The objective character of the process itself must also satisfy the statutory definition.
  • Where the Crown presents its case to the jury on a narrow factual basis, the conviction stands or falls on that basis. A potential future attempt using different materials does not save a prosecution framed around an impossible process.
  • The Court of Criminal Appeal left open the broader question of where, along the spectrum of activity, a "process of manufacture" begins for the purposes of the Act. The decision turned on the specific and narrow way the Crown put its case at trial.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3(1), 6, 24(1)

Cases
- Thomas (1993) 67 A Crim R 308
- DPP Reference No 2 of 1995 (1995) 82 A Crim R 263
- R v Barbouttis (1995) 37 NSWLR 256
- R v Mai (1992) 26 NSWLR 371
- DPP v Nock [1978] AC 979