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Court of Criminal Appeal 2 February 2017

Woods v R

[2017] NSWCCA 5

Drugs
APPEAL CRIMINAL LAW CROWN CONCESSION INDICTMENT QUASHED CRIMINAL LAW COSTS CERTIFICATE GRANTED

Citation: Woods v R [2017] NSWCCA 5
Court: Court of Criminal Appeal
Date: 2 February 2017
Judge(s): Price J, Davies J, Garling J

Background

The applicant and a co-accused were arraigned in the District Court on an indictment alleging they had each knowingly taken part in the supply of a prohibited drug, namely dextromethorphan (described as an isomer of methorphan), in an amount of 4,993 grams. This was alleged to constitute supply at the large commercial quantity level, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act).

Before a jury was empanelled, the applicant applied to have the indictment quashed on the basis that dextromethorphan was not a prohibited drug within the meaning of the DMT Act. The trial judge (Syme DCJ) rejected the application after hearing expert evidence and argument, and certified the interlocutory judgment as appropriate for appeal.

The applicant appealed to the Court of Criminal Appeal. At the hearing of the appeal in August 2016, the Crown conceded that it had been wrong: dextromethorphan was not in fact a prohibited drug under the DMT Act. The Court accepted the concession, allowed the appeal, and quashed the indictment. The applicant then sought a costs certificate under the Costs in Criminal Cases Act 1967 (NSW) (CCC Act), raising a further question about whether he had been "discharged in relation to the offence concerned" within the meaning of that Act.

  • Whether dextromethorphan was a "prohibited drug" within the meaning of the DMT Act, having regard to the definition of "substance" in section 3 and the analogue provisions in Schedule 1.
  • Whether the applicant was "discharged in relation to the offence concerned" for the purposes of section 2(1)(a) of the CCC Act, so as to be entitled to a costs certificate.

Decision

Dextromethorphan as a prohibited drug

Expert evidence established that dextromethorphan is a stereoisomer of methorphan and levomethorphan, but not a structural isomer of either. Dextromethorphan does not appear in Schedule 1 of the DMT Act and cannot be brought within the schedule through the analogue provisions, which apply only to structural isomers and structurally modified substances. The Crown ultimately conceded on appeal that its construction of section 3, which had been accepted by the trial judge, was unsustainable. The definition of "prohibited drug" in section 3 requires a substance to be specified in Schedule 1, and the definition of "substance" (which includes "isomers") operates to determine what counts as the same substance for weight and quantity purposes, not to import all isomers of listed drugs as separately prohibited drugs in their own right.

The Court accepted the Crown's concession as appropriately made, allowed the appeal, vacated the interlocutory judgment, and quashed the indictment.

Costs certificate

The remaining question was whether the applicant qualified for a costs certificate under section 2(1)(a) of the CCC Act. That section requires that the applicant have been "discharged in relation to the offence concerned." Citing DAO v R (No 3) [2016] NSWCCA 282 and earlier authority, the Court confirmed that "discharged" is not limited to committal proceedings, and that the key requirement is that the proceedings have been finally disposed of in the accused's favour.

Because the indictment had been quashed and the applicant had effectively been charged with an offence unknown to law, the Court found he had been discharged. No further proceedings under the DMT Act could be brought against him in relation to the supply of dextromethorphan. The Court granted the costs certificate for proceedings up to and including the trial judge's ruling.

Orders Made

  • The appeal was allowed and the interlocutory judgment was vacated.
  • The indictment was quashed.
  • A costs certificate under section 2(1)(a) of the Costs in Criminal Cases Act 1967 (NSW) was granted in favour of the applicant, covering costs up to and including the judgment of Syme DCJ on 22 January 2016.
  • The applicant was directed to provide a draft certificate in the prescribed form within 14 days.

Key Takeaways

  • Dextromethorphan is a stereoisomer, not a structural isomer, of methorphan and levomethorphan. Because it does not appear in Schedule 1 of the DMT Act and cannot be caught by the analogue provisions, it does not constitute a "prohibited drug" under that Act.
  • The definition of "substance" in section 3 of the DMT Act, which includes "isomers," operates to capture the total weight of a mixture containing a prohibited drug for quantity purposes. It does not independently expand the list of prohibited drugs to include all chemical isomers of listed substances.
  • Under the CCC Act, an accused whose indictment is quashed following a successful interlocutory appeal qualifies as having been "discharged in relation to the offence concerned," provided the proceedings have been finally disposed of in their favour.
  • The District Court's acceptance of the Crown's statutory construction argument was overturned on appeal after the Crown itself withdrew that argument. The Court of Criminal Appeal noted that the Crown did not accept the correct position until shortly before the appeal hearing.
  • A successful challenge to an indictment before a jury is empanelled can form the basis of a costs certificate under the CCC Act, where the effect of the ruling is that the accused faced a charge that was not known to law.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(2), Schedule 1
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
- Criminal Appeal Act 1912 (NSW), s 5F(3)(b)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 8

Cases
- DAO v R (No 3) [2016] NSWCCA 282
- Director of Public Prosecutions v Howard (2005) 64 NSWLR 139; [2005] NSWSC 987
- Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738