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Court of Criminal Appeal 14 December 2016

R v Bucic

[2016] NSWCCA 297

Drugs
CRIMINAL LAW DRUG OFFENCE APPEAL ALLOWED PRINCIPLES JUDICIAL PRECEDENT USE OF INTERSTATE DECISIONS

Citation: R v Bucic [2016] NSWCCA 297
Court: NSW Court of Criminal Appeal
Date: 14 December 2016
Judges: Hoeben CJ at CL, Harrison J, Campbell J (all agreeing)

Background

The respondent was charged in the District Court with knowingly taking part in the manufacture of cocaine, contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). The Crown alleged that the respondent and a co-accused possessed sheets of A4 paper impregnated with cocaine and took deliberate steps to extract the cocaine from the paper. Those steps included cutting the paper into pieces, dissolving it in isopropyl alcohol, and evaporating the solution to recover solid cocaine hydrochloride.

Expert evidence confirmed that the cocaine entered the paper and emerged from it in chemically identical form: cocaine hydrochloride went in and cocaine hydrochloride came out. No specialised equipment or controlled chemicals were required.

At the close of the Crown case, the trial judge accepted the respondent's argument that no "manufacture" had occurred because nothing chemically different was produced. Her Honour directed the jury to return a verdict of not guilty on the State charge. The Crown appealed that directed acquittal on a question of law alone.

  • Whether separating cocaine from cocaine-impregnated paper constituted "manufacturing" a prohibited drug within the meaning of s 24(1) DMTA.
  • Whether the definition of "manufacture" in s 3 DMTA, which "includes the process of extracting or refining the prohibited drug", required the production of a new or different substance.
  • Whether the Victorian Court of Appeal's decision in Beqiri v R (concerning the Criminal Code 1995 (Cth)) was applicable to the interpretation of the DMTA.
  • Whether the trial judge erred by applying the "ordinary English meaning" of "manufacture" without engaging with the NSW statutory definition.

Decision

Campbell J (with whom Hoeben CJ at CL and Harrison J agreed) found that the trial judge fell into error by failing to engage with the statutory definition of "manufacture" in s 3 DMTA. Her Honour's reasons did not refer to the DMTA at all. Instead, the trial judge applied what she described as the "ordinary English meaning" of the word, namely "making something out of something different", which she had derived from the Victorian Court of Appeal's analysis in Beqiri.

The Court of Criminal Appeal drew a sharp distinction between the DMTA and the Commonwealth Criminal Code provision considered in Beqiri. The Code definition of "manufacture" uses the word "means", making it exhaustive and centred on the concept of production of a new substance. By contrast, s 3 DMTA uses "includes", extending the definition beyond its ordinary meaning to encompass "the process of extracting or refining the prohibited drug". That extension is significant and independent of any requirement that a new or different substance be produced.

The Court held that Beqiri had no application to the interpretation of the DMTA. Different legislation with a similar purpose does not supply a "rule" to apply to a different statutory scheme. The reasoning in Beqiri was explicitly tied to the exhaustive Code definition and its centrality of production as a concept. That centrality is absent from the DMTA's inclusive definition.

Applying the correct statutory framework, the Court found that dissolving cocaine-impregnated paper in alcohol and evaporating the solution to obtain cocaine hydrochloride as a marketable commodity was a "process of extracting the prohibited drug" within the meaning of s 3 DMTA. The Court added that such conduct would in any event constitute a step in the manufacture of the drug in its ordinary sense. The directed acquittal could not stand and a new trial was ordered.

Orders Made

  • Crown appeal allowed.
  • Acquittal by direction of 24 May 2016 quashed.
  • New trial ordered.

Key Takeaways

  • Under s 3 DMTA, "manufacture" is defined using the word "includes", meaning the definition is expansive rather than exhaustive. It extends to "the process of extracting or refining the prohibited drug" without requiring the production of a chemically new or different substance.
  • The District Court's failure to engage with the relevant statutory definition, and its reliance instead on the ordinary English meaning of "manufacture" derived from interstate authority, constituted a legal error.
  • Interstate decisions interpreting drug manufacturing offences under different legislation do not supply a binding or directly applicable rule of construction, even where the facts are closely analogous. The Victorian Court of Appeal's decision in Beqiri v R, which interpreted an exhaustive Code definition, was not applicable to the inclusive NSW definition.
  • Recovering cocaine hydrochloride from cocaine-impregnated paper by dissolving and evaporating the paper in alcohol constituted a "process of extracting" the prohibited drug within s 3 DMTA, representing the final step in realising the cocaine as a marketable commodity.
  • Where a statutory definition employs "includes" rather than "means", the Court of Criminal Appeal confirmed that the defined term retains its ordinary meaning and is supplemented by what follows, rather than being confined or replaced by it.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 6, 24
- Crimes (Appeal and Review) Act 2001 (NSW), s 107
- Criminal Code 1995 (Cth), s 305

Cases
- Beqiri v R (2013) 37 VR 219; [2013] VSCA 39
- Alcan (NT) v Territory Revenue [2009] HCA 45; 239 CLR 27
- Beckwith v The Queen (1976) 135 CLR 569
- Comcare v Martinez (No 2) (2013) 212 FCR 272; [2013] FCA 439
- Corporate Affairs Commission (SA) v Australia Central Credit Union (1985) 157 CLR 201
- FCT v St Huberts Island Pty Ltd (1978) 138 CLR 210
- Jolley v Sutton London Borough Council [2000] 3 All ER 409
- McKeagg v R (2006) 162 A Crim R 51
- R v Randylle (2006) 95 SASR 574; [2006] SASC 318
- R v Thomas (1993) 67 A Crim R 308
- Re Avory (2003) 87 SASR 392
- Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
- TAL Life Limited v Sheutrim [2016] NSWCA 68
- Teubner v Humble (1963) 108 CLR 491; [1963] HCA 11
- The Owners of the Ship "Shin Cobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404
- Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503