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District Court 25 October 2018

R v Cantwell

[2018] NSWDC 353

Drugs
CRIMINAL LAW JUDGMENT ALLEGATIONS OF SUPPLY PROHIBITED DRUG NOT AN ANALOGUE OF DRUG LISTED “ADDITION” AND “REPLACEMENT” INN OF THE SIXTH HAPPINESS

Citation: R v Cantwell [2018] NSWDC 353
Court: District Court of New South Wales
Date: 25 October 2018
Judge(s): Berman SC DCJ

Background

The accused operated a shop in Manly. Police searched the shop, his home, and a storage unit, and found a substance known as 5F-AKB48. The accused was charged with supplying a prohibited drug.

The substance 5F-AKB48 is not specifically listed in Schedule 1 to the Drug Misuse and Trafficking Act. The prosecution's case rested entirely on the argument that 5F-AKB48 is a structural analogue of AKB48, which is a listed prohibited drug.

The central dispute turned on a precise point of statutory construction: whether the chemical process by which 5F-AKB48 is derived from AKB48 falls within the definition of "analogue" in Schedule 1 to the Act.

  • Whether 5F-AKB48 is an "analogue" of AKB48 under Schedule 1 to the Drug Misuse and Trafficking Act
  • Specifically, whether the word "addition" in subparagraph 6 of the analogue definition encompasses a chemical process in which a halogen group is added to a molecule only after a hydrogen atom is first removed
  • Whether such a process is more properly characterised as a "replacement" rather than an "addition," given that the word "replacement" appears separately in subparagraph 7 of the same definition

Decision

The chemical difference between AKB48 and 5F-AKB48 is that the latter has a fluorine (halogen) atom substituted for one hydrogen atom. Because a carbon atom can bond with only four atoms at once, the hydrogen atom must be removed to make room for the fluorine atom. Both expert witnesses agreed on this underlying chemistry.

The Crown's expert, Ms Cullinan, believed no halogen addition was possible without first removing something, given the constraints of carbon bonding. The accused's expert, Dr Robertson, disagreed on that narrow point, noting that it is theoretically possible to add a halogen to a different part of the AKB48 molecule (via its oxygen atom's double bond) without removing anything. The court noted it was unfortunate that this alternative pathway had not been put to the Crown's expert for comment.

However, the critical question was one of statutory interpretation, not chemistry alone. Dr Robertson gave evidence that in chemistry the concept of an "addition reaction" carries a recognised meaning: adding atoms without losing others. A process that involves adding one atom only after removing another is more properly called a "replacement."

His Honour accepted this reasoning, placing most weight on the structure of the definition itself. The fact that the same definition uses both "addition" (subparagraph 6) and "replacement" (subparagraph 7) as distinct terms indicates that Parliament intended them to carry different meanings. Treating "addition" as covering a process that requires the prior removal of another atom would render "replacement" redundant or overlapping. On that basis, the court ruled that "addition" in subparagraph 6 does not include a process where something is simultaneously removed. The process by which AKB48 becomes 5F-AKB48 is properly characterised as replacement, not addition.

Accordingly, 5F-AKB48 is not an analogue of AKB48 under the Act. The court indicated that on a direction in those terms, the jury would be required to return a verdict of not guilty.

Orders Made

• The court would direct a jury to return a verdict of not guilty on the basis that the drug which Mr Cantwell allegedly supplied was not in fact a prohibited drug.

Key Takeaways

  • The District Court held that the word "addition" in the analogue definition in Schedule 1 to the Drug Misuse and Trafficking Act does not extend to a chemical process where one atom is removed in order to add another.
  • Where the same statutory definition uses both "addition" and "replacement" as separate concepts, the principle against surplusage supports giving each word a distinct meaning.
  • A substance is not a prohibited drug analogue under subparagraph 6 merely because a halogen group is present in its structure; the process by which that group was introduced to the molecule is relevant to the classification.
  • Expert evidence on both the chemistry and the ordinary meaning of technical terms in their scientific context was central to resolving the statutory construction question.
  • The Queensland Drugs Misuse Act was noted in argument as taking a broader approach that would have captured 5F-AKB48 as an analogue, implicitly highlighting that the NSW Act's definition is not identical to all other Australian drug analogue regimes.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), Schedule 1 (definition of "analogue," subparagraphs 6 and 7)
- Drugs Misuse Act (Qld), s 4A

Cases cited: None stated in the judgment.