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District Court 2 March 2017

R v Li

[2017] NSWDC 86

Drugs
CRIMINAL LAW JUDGMENT DEEMING PROVISION

Citation: R v Li [2017] NSWDC 86
Court: District Court of New South Wales
Date: 2 March 2017
Judge: Berman SC DCJ

Background

The accused faced a charge on count 2 of an indictment alleging possession of a substance with the intention of using it to manufacture a controlled drug, namely MDMA. The substance found in the accused's possession was 3,4-Methylenedioxyphenyl-2-propane, commonly known as MDP2P.

The central procedural question before the court was whether a deeming provision under the Commonwealth Criminal Code applied to the charge. If it did, the burden of proof would shift to the accused to prove the absence of an intention to manufacture, rather than leaving the prosecution to prove that intention beyond reasonable doubt.

The parties agreed that this was a question of law for the judge to resolve, not a question of fact for the jury.

  • Whether the deeming provision in s 308.2(3) of the Commonwealth Criminal Code applied to the charge
  • Whether MDP2P was a Schedule 9 poison under the Poisons Standard, which required its possession to be authorised
  • Specifically, whether MDP2P constituted a "derivative" of MDMA within the meaning of the Poisons Standard, such that it fell within Schedule 9 by extension

Decision

The court heard brief expert evidence from a chemist with a PhD, Dr Degratzia, who explained the molecular structures of both MDP2P and MDMA. He described the process by which MDP2P can be converted into MDMA, but gave no evidence that MDMA could be converted back into MDP2P.

MDMA is listed in Schedule 9 of the Poisons Standard; MDP2P is not. The prosecution argued that MDP2P was a "derivative" of MDMA under Part 1.1 of the Poisons Standard, which extends schedule coverage to every derivative of a listed substance. The prosecution relied on introductory guidance in the Poisons Standard suggesting that classification as a derivative depends on structural, pharmacological, or toxicological similarity, or on whether a substance can be readily converted into a scheduled poison.

Berman SC DCJ rejected that argument. His Honour held that the word "derivative" is directional: it describes a substance that is derived from another, not merely one that resembles it structurally. The evidence established that MDMA can be derived from MDP2P, but there was no evidence that MDP2P can be derived from MDMA. Structural similarity alone was held to be insufficient to satisfy the definition.

Because MDP2P was not a Schedule 9 poison, its possession was not required to be authorised, and the conditions for triggering the deeming provision were not met. The prosecution would therefore be required to prove beyond reasonable doubt that the accused possessed MDP2P with the intention of using it to manufacture a controlled drug.

Orders Made

• The deeming provision does not apply to count 2
• The Crown must prove an intention on the part of the accused to manufacture a controlled drug beyond reasonable doubt for count 2

Key Takeaways

  • The District Court held that the word "derivative" in the Poisons Standard operates directionally: a substance is only a derivative of a scheduled poison if it can be derived from that poison, not merely if it shares structural similarities with it.
  • Structural similarity between two molecules is not, by itself, sufficient to bring an unlisted substance within a schedule as a derivative of a listed substance.
  • Under s 308.2(3) of the Commonwealth Criminal Code, the deeming provision reversing the onus of proof applies only where the substance possessed was one whose possession was required to be authorised by law, a condition that in turn depends on whether the substance falls within a relevant schedule.
  • Where the deeming provision does not apply, the prosecution retains the standard obligation to prove beyond reasonable doubt that the accused possessed the substance with the relevant intention.
  • Expert chemical evidence played a decisive role: the absence of any evidence that MDMA could be converted into MDP2P was fatal to the prosecution's argument that MDP2P was a derivative of MDMA.

Legislation and Cases Referenced

Legislation:
- Commonwealth Criminal Code, s 308.2(3)
- Poisons Standard (Commonwealth), Part 1.1 and Schedule 9

Cases:
No cases were cited in the judgment.