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7
Court of Criminal Appeal 12 April 2002

Regina v Marchione

[2002] NSWCCA 131

Also reported as (2002) 128 A Crim R 575
Drugs

Citation: Regina v Marchione [2002] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 12 April 2002
Judge(s): Heydon JA, Dowd J, Bell J

Background

The appellant faced two counts on indictment in the District Court: knowingly taking part in the manufacture of methylamphetamine between January and June 2000, and knowingly taking part in the supply of methylamphetamine on a specific date in January 2000. Both offences arose under the Drug Misuse and Trafficking Act 1985.

On the day his trial was listed to commence, the appellant's counsel applied without notice to permanently stay the first count. The application rested on the argument that the Crown's evidence was incapable of establishing the appellant's guilt, making the prosecution an abuse of process in that it was "foredoomed to fail." District Court Judge Norrish refused the stay.

The appellant then appealed to the Court of Criminal Appeal under section 5F(3)(b) of the Criminal Appeal Act 1912, armed with a certificate from the trial judge that the matter was appropriate for appellate determination. The notice of appeal was filed out of time and the Court also had to address whether it had jurisdiction to hear the appeal at all.

  • Whether the Court of Criminal Appeal had jurisdiction under section 5F of the Criminal Appeal Act 1912 to hear an appeal against the refusal of a permanent stay
  • Whether the trial judge wrongly interpreted sections 6 and 24(1) of the Drug Misuse and Trafficking Act 1985 in assessing whether the Crown evidence disclosed a case to answer
  • Whether the trial judge should have concluded that the first count was foredoomed to fail and therefore permanently stayed those proceedings

Decision

The Court first addressed the Crown's jurisdictional challenge. The Crown argued the appeal was incompetent because a ruling that the prosecution evidence established a case to answer is not an "interlocutory judgment or order" for the purposes of section 5F, relying on R v Lethlean. The Court distinguished that position: an application for a permanent stay, and a refusal to grant one, does constitute an interlocutory order capable of founding an appeal under section 5F, consistent with the earlier decisions in R v Edelsten and R v Bozatsis and Spanakakis. Jurisdiction was confirmed.

On the substantive question, the appellant argued that acquiring or transporting chemicals or equipment was not, without more, a "step in the process of manufacture" as required by section 6 of the DMT Act. The Court accepted that submission as far as it went, but found it did not determine the outcome of the appeal. The critical question was whether the Crown's evidence was capable of establishing that the appellant supplied Sudafed tablets in the knowledge that the recipient was engaged in an ongoing process of manufacturing methylamphetamine and with the requisite intention.

Judge Norrish had found that the evidence was capable of establishing exactly that: an ongoing manufacturing process existed and the appellant, with relevant knowledge and intention, was supplying material into it. The Court of Criminal Appeal, applying the approach in R v Thomas, held the trial judge was right to distinguish this case from R v BD. No error in statutory interpretation or in the application of the abuse of process doctrine was established.

The extension of time to file the notice of appeal was granted given the explanation provided, but the appeal itself was dismissed.

Orders Made

  • Extension of time in which to file the notice of appeal granted
  • Appeal dismissed

Key Takeaways

  • A refusal to permanently stay criminal proceedings on an indictment constitutes an interlocutory order within the meaning of section 5F of the Criminal Appeal Act 1912, making it susceptible to appeal to the Court of Criminal Appeal. A ruling that evidence is sufficient to constitute a case to answer does not carry the same status.
  • Under sections 6 and 24(1) of the Drug Misuse and Trafficking Act 1985, taking part in the manufacture of a prohibited drug requires participation in a step in the manufacturing process itself. Acquiring or transporting chemicals does not automatically satisfy that element without additional evidence of the requisite knowledge and intention.
  • A permanent stay on the ground that proceedings are "foredoomed to fail" will only be granted where the prosecution evidence is genuinely incapable of establishing guilt. Evidence capable of sustaining an inference of the necessary knowledge and intention is sufficient to defeat such an application.
  • In dismissing the appeal, the Court confirmed that supplying a precursor substance with knowledge that the recipient is engaged in an ongoing manufacturing process, and with the intention that the material will serve that process, can satisfy the participation element of the offence.
  • No error was established in the trial judge's approach of examining whether the Crown evidence was capable of supporting the combined inferences of a contemporaneous manufacturing process and the appellant's knowing contribution to it.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- District Court Rules 1973 (NSW), Pt 53 r 10
- Drug Misuse and Trafficking Act 1985 (NSW), ss 6, 24(1), 25(1)

Cases
- Jago v The District Court of New South Wales (1989) 168 CLR 23
- R v Edelsten (1989-90) 18 NSWLR 213
- R v Lethlean (1995) 83 A Crim R 197
- R v Thomas (1993) 67 A Crim R 308
- Regina v Groves (unreported, NSWCCA, 2 April 1990)
- Ridgeway v The Queen (1994-1995) 184 CLR 19
- Walton v Gardiner (1992-1993) 177 CLR 379