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Court of Criminal Appeal 13 July 2016

Finch v R

[2016] NSWCCA 133

Drugs
CRIMINAL LAW DRUG SUPPLY ADMIXTURES LSD EVIDENCE

Background

The appellant was convicted in the District Court on two counts: supplying not less than a large commercial quantity of lysergide (LSD), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act); and supplying methylamphetamine, contrary to s 25(1). The LSD was found in two forms — dissolved in liquid (in small bottles) and impregnated into cardboard squares ("tabs").

The appellant appealed on ten grounds, raising questions about the admissibility of cannabis evidence (for a charge he did not face), police opinion evidence on how LSD cardboard tabs are consumed, whether the total weight of the liquid and cardboard counted under the admixtures provision, whether separate packages should have been assessed independently, and whether alternative lesser charges should have been left to the jury.

  • Whether cannabis evidence was improperly admitted where the appellant was not charged with a cannabis offence
  • Whether police opinion evidence on the consumption of LSD-impregnated cardboard was admissible
  • Whether LSD dissolved in liquid and LSD impregnated in cardboard constitute an "admixture" under s 4 DMT Act, so that the total weight (carrier included) counts toward the quantity threshold
  • Whether the trial judge erred in not directing the jury to assess each package separately
  • Whether alternative lesser charges should have been left to the jury

Decision

The Court of Criminal Appeal (Payne JA, McCallum J and Davies J agreeing) dismissed the appeal on all grounds.

On the admixtures question — the central issue — the Court held that LSD dissolved in liquid clearly falls within s 4 of the DMT Act. Section 4 defines the quantity of a prohibited drug to include any "preparation, admixture, extract or other substance" containing any proportion of that drug. The liquid is plainly a substance in which LSD is contained; the full weight of the solution therefore counts toward the threshold.

The Court further held that LSD-impregnated cardboard also falls within s 4. The police officer gave unchallenged evidence that the cardboard is itself ingested — making it a substance "containing" the prohibited drug. Both the liquid and the cardboard contributed to a quantity well above the large commercial threshold.

On the cannabis evidence, trial counsel had deliberately not objected as part of a forensic strategy that was objectively open to him. No miscarriage arose. On the separate packages ground, the premise was factually wrong — neither package individually was below the large commercial quantity threshold, so no direction was required. On alternative charges, there was no evidential basis to leave them.

Orders Made

  • Appeal against conviction: dismissed on all grounds

Key Takeaways

  • Under s 4 of the Drug Misuse and Trafficking Act 1985 (NSW), both LSD dissolved in liquid and LSD impregnated in cardboard constitute admixtures, meaning the full weight of the carrier material counts toward the prohibited drug quantity.
  • The Court of Criminal Appeal confirmed that s 4 is not limited to substances deliberately mixed by a person but applies to any substance "containing" the drug in any proportion, provided the carrier is itself part of what is consumed or supplied.
  • A deliberate forensic decision by trial counsel not to object to evidence will generally not found an appeal ground absent a demonstrated miscarriage of justice, as the Court reaffirmed in rejecting the appellant's challenge to the admission of cannabis evidence.
  • No requirement exists to direct a jury to assess packages separately unless individual packages might fall below the relevant quantity threshold, a situation that did not arise on the facts.
  • In dismissing all ten grounds of appeal, the Court upheld the District Court convictions for supplying not less than a large commercial quantity of LSD and for supplying methylamphetamine.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 4, 25, 29, Sch 1
- Evidence Act 1995 (NSW), ss 55, 78, 79, 137, 144
- Criminal Appeal Act 1912 (NSW), ss 5, 6

Key cases
- R v R2 (1990) 19 NSWLR 513
- R v SH [2014] NSWCCA 218; 88 NSWLR 1
- Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2011] FCAFC 132
- Alliston v R [2011] NSWCCA 281; 217 A Crim R 323