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Court of Criminal Appeal 15 November 2002

R v Bowman & Anor

[2002] NSWCCA 449

Drugs
CRIMINAL LAW NO OTHER QUESTION OF PRINCIPLE

Citation: R v Bowman & Anor [2002] NSWCCA 449
Court: Court of Criminal Appeal, New South Wales
Date: 15 November 2002
Judge(s): Dunford J, Sperling J, Carruthers AJ

Background

Two accused were charged with offences under the Drug Misuse and Trafficking Act 1985, including knowingly taking part in the manufacture of methylamphetamine, supply of pseudoephedrine, and possession of pseudoephedrine. Police had stopped a vehicle the accused were travelling in and found nearly eight kilograms of pseudoephedrine, laboratory glassware, and other chemicals. Fingerprints of both accused were found on some items.

The manufacture charge was dropped after a 2001 Court of Criminal Appeal decision (BD) narrowed the scope of that offence. The prosecution then proceeded on the supply charge under s 25(1) of the Act, which could be established through a deeming provision in s 29: a person found in possession of a traffickable quantity of a prohibited drug is deemed to possess it for supply unless they prove otherwise.

The accused applied to the District Court for a permanent stay of the s 25(1) charge, arguing the prosecution amounted to an abuse of process. The trial judge refused the stay, and the accused sought leave to appeal that interlocutory decision to the Court of Criminal Appeal.

  • Whether a prosecution based on a legislative deeming provision requires the prosecuting authority to hold a genuine belief that the accused actually intended to supply the drug.
  • Whether the correspondence from the prosecution, and the original laying of the manufacture charge, demonstrated an absence of the requisite belief to support the supply charge.
  • Whether the supply charge had been brought for an improper purpose, namely to extract admissions that would support the lesser possession charge under s 10(1).

Decision

The Court refused leave to appeal and provided reasons, finding the trial judge's refusal of the stay was "so unimpeachably right" that leave could not be granted.

On the first ground, the accused relied on principles from the civil law of malicious prosecution (drawn from Mitchell v John Heine & Son Ltd) to argue that the prosecution must genuinely believe the accused intended to supply the drug. The Court rejected the proposition that this civil-law requirement applies where a prosecution is founded on a legislative deeming provision. Where Parliament has enacted that proof of possession of a traffickable quantity is sufficient, in law, to establish supply unless the accused disproves it, the prosecuting authority is not required to hold a belief about the underlying actuality. Prosecuting without knowing whether actual supply was intended fulfils rather than abuses the purpose of the legislation.

The Court also rejected the inference the accused sought to draw from the earlier manufacture charge and the prosecution's correspondence. Before the decision in BD, transporting chemicals to another for use in manufacturing was understood to fall within the manufacture offence. The laying of that charge was therefore as consistent with a belief in intended supply as with personal use, and the correspondence did not establish that the Crown had no belief in supply.

On the second ground, the Court found no factual basis for the suggestion that the supply charge was brought merely to elicit admissions supporting the minor possession charge. The prosecution had no reason to believe the supply charge would fail, and a conviction for deemed supply remained a genuine and available outcome. The improper purpose ground was therefore unsustainable on the facts.

Orders Made

• Leave to appeal was refused

Key Takeaways

  • A prosecution relying on a legislative deeming provision does not require the prosecuting authority to hold a subjective belief that the accused actually had the underlying intention (here, intent to supply). The court held that the civil malicious prosecution standard from Mitchell v John Heine & Son Ltd has no direct application in that context.
  • Under s 29 of the Drug Misuse and Trafficking Act 1985, proof of possession of a traffickable quantity of a prohibited drug is sufficient to establish supply in law, unless the accused proves otherwise. Proceeding on that basis, without knowing the accused's actual purpose, is consistent with the legislation's intent.
  • Where a prosecution charge has no history suggesting it was brought to achieve an ulterior aim, and the charge carries a realistic prospect of conviction, a permanent stay for improper purpose will not be granted.
  • In dismissing the leave application, the Court of Criminal Appeal confirmed that the principles governing permanent stays of criminal proceedings remain grounded in preventing abuse of process or an unfair trial, not in importing civil-law requirements about a prosecutor's state of mind into statutory offence frameworks.
  • The fact that one charge is withdrawn following a change in the law does not, without more, demonstrate that the prosecution lacked a proper basis for proceeding on related remaining charges.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 10, 24, 25, 29

Cases
- BD (2001) 122 A Crim R 28
- Kellert (1961) 80 WN (NSW) 307
- Mitchell v John Heine & Son Ltd (1938) SR (NSW) 466
- Williams v Spautz (1992) 174 CLR 509