Daley, Thomas William v Tasmania, State of [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Blow J,Porter J,Wood J
• Judgment Date: 30 March 2012
• Docket Number: CCA 1060/2011
• Date: 30 March 2012

[2012] TASCCA 4

[2011] TASSC 43

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Blow, Porter and Wood JJ

CCA 1060/2011

Daley, Thomas William

Shipp, Allison Patricia

and

Tasmania, State of

Tasmania

and

Daley and Shipp

Jager v R (1977) 139 CLR 28 ; Beckwith v R (1976) 135 CLR 569, referred to.

Aust Dig Criminal Law [2449]

Misuse of Drugs Act 2001 (Tas), Schedule 1, Part 2, cl 1(c).

Criminal Law — Particular offences — Drug offences — Identity of prohibited substances — Generally — Meaning of ‘derivative’.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Blow J Porter J Wood J

1 At the conclusion of the hearing of this appeal, we dismissed it. The first named appellant, Mr Daley, had been sentenced to a term of imprisonment, but bailed pending the hearing of the appeal. We ordered that he be taken into custody to resume serving his sentence. We said that we would publish our reasons for dismissing the appeal at a later date. These are those reasons.

2 The two appellants were indicted on a single charge of trafficking in a controlled substance, contrary to theMisuse of Drugs Act 2001 (‘the Act’), s12(1). The indictment alleged that they ‘trafficked in a controlled substance namely, 4-methylmethcathinone being a derivative of methcathinone’. Throughout the proceedings, they have contended that, for the purposes of the Act, 4-methylmethcathinone was not a ‘derivative’ of methcathinone, that it was therefore not a ‘controlled substance’, and that it was not open to the jury to find that it was one.

3 Before the empanelment of a jury, the proceedings came before Evans J, who decided to determine, as a preliminary matter, whether it would be open to a jury to determine that 4-methylmethcathinone was a derivative of methcathinone and therefore a controlled substance. He conducted avoir dire, during which expert evidence was called, and made a determination pursuant to the Criminal Code, s361A, to the effect that it was open to a jury to make such findings: Tasmania v Daley and Shipp [2011] TASSC 43. The trial did not proceed any further before Evans J. The proceedings came before Crawford CJ. A jury was empanelled and the trial proceeded. In accordance with the Criminal Code, s361A(2), his Honour directed the jury in accordance with the determination of Evans J. The jury found both appellants guilty. The appellants have appealed against their convictions on only one ground, namely that the learned trial judge erred in law in directing the jury that 4-methylmethcathinone was capable of being a controlled drug for the purpose of the Act.

4 Under the Act, s12(1), it is a crime for a person to ‘traffic in a controlled substance’. In s3(1), ‘controlled substance’ is defined to include ‘a controlled drug’. In the same subsection, ‘controlled drug’ is defined to mean ‘a substance, other than a growing plant, specified or described in Part 2 of Schedule 1’.

5 Part 1 of that schedule lists over 200 controlled drugs, with an item number against each. The substance that the appellants were charged with trafficking in, 4-methylmethcathinone, was not in the list at any material time. (It is listed now.) The other substance mentioned in the indictment, methcathinone, is item 161 in the list.

6 The meaning of the words in the list is expanded by Part 1 of the schedule, sub-cl 1(c) of which, at the relevant time, provided as follows:

‘1 In this Schedule—

…

(c) a reference to a substance includes—

1. (i) that substance prepared from natural sources or artificially; and

2. (ii) every salt, active principle or derivative, including esters and ethers, and every salt of such an active principle or derivative; and

3. (iii) every alkaloid of the substance and every salt of such an alkaloid; and

4. (iv) except where the substance is levomethorphan or levorphanol, every stereo-isomer of the substance and every salt of the stereo-isomer; and

5. (v) a preparation or admixture containing any proportion of the substance.’

7 The Act does not contain a definition of ‘derivative’. The Crown contended at the trial that 4-methylmethcathinone was a ‘derivative’ of methcathinone within the meaning of cl 1(c)(ii). On appeal, the appellants contended that it was not a derivative of methcathinone; that it was not open to the jury to be satisfied beyond reasonable doubt that it was such a derivative; and that their convictions therefore had to be quashed.

8 The construction of cl 1(c)(ii) involved a question of law, and was not for the jury to decide:Jager v R (1977) 139 CLR 28.

9 The expert evidence before Evans J can be summarised as follows:

• •The two compounds in question, 4-methylmethcathinone and methcathinone, have very similar molecular structures. The only difference is that, at a point at one end of the molecule, where methcathinone has a single hydrogen atom, 4-methylmethcathinone has a methyl or CH3 group, ie a group comprising a single carbon atom and three hydrogen atoms.

• •In theory 4-methylmethcathinone could be made from methcathinone, but that would be an extremely difficult process, involving many steps, and therefore impractical.

• •It would be practical to make 4-methylmethcathinone from either toluene or 4-methylpropiophenone.

• •In chemistry, a substance made from another substance is always regarded as a derivative of the substance from which it has been made.

• •In chemistry, a substance that is structurally similar to another substance will sometimes be called a derivative, though some chemists would call it an analogue, not a derivative. When such a substance is regarded as a derivative, it is said to be ‘structurally derived’ from the other substance.

10 Evans J also considered the definition of ‘derivative’ in a number of dictionaries. Some included definitions that supported the Crown's contentions, but the New Shorter Oxford Dictionary did not. Its definition, in relation to chemicals was, ‘A compound obtained from another by substitution or other simple process’. However the definitions favourable to the Crown were as follows:

• •The Macquarie Dictionary online said, ‘a substance or compound made from, or structurally related to, another substance or compound’.

• •The Revised Edition of the Macquarie Dictionary published in 1985, and subsequent editions, included the same definition.

• •Butterworths Medical Dictionary, 2^nd ed, London, 1978, included the following:

  ‘3 A compound formed by chemical means from a parent compound: 4 A compound closely related structurally to another compound, but not necessarily prepared from it.’

• •The online edition of Merriam-Webster's Medical Dictionary gave the following meanings:

  ‘a : a chemical substance related structurally to another substance and theoretically derivable from it b : a substance than can be made from another substance.’

• •The same definition appeared in the 10^th edition of that dictionary in 1993.

11 Evans J also considered the history of the legislation governing drugs other than alcohol and tobacco. He took into account the fact that the Australian Health Ministers' Advisory Council published a recommendation in 1997 as to recommended schedules listing drugs and poisons, one of which recommended an interpretation provision whereby a reference to a poison in a schedule was to include ‘every salt, active principle or derivative of the poison, including esters and ethers, and every salt of such an active principle or derivative’. The relevant provision in the Act—Schedule 1, Part 1, cl 1(c)—largely mirrors the recommended provisions, as Evans J observed.

12 Evans J took into account the requirement of theActs Interpretation Act 1931, s8A, that an interpretation of a legislative provision that promotes the purpose or object of the Act be preferred to one that does not promote the purpose or object of the Act. At pars[19] and [20] of his reasons, he said the following:

‘[19] In the course of the evidence it was said that one reason for the creation of designer drugs, such as ecstasy and 4-methylmethcathinone, is a belief by some that drug control legislation such as theMisuse of Drugs Act can be circumvented by modifying the structure of a substance without altering the critical parts of the structure that are responsible for its biological activity. It would not serve the purposes of the Misuse of Drugs Act to adopt a construction for derivative that gave credence to such a belief. I can find nothing in the Act or the matters that are ordinarily considered to be relevant to ascertaining the purpose of an Act to suggest that terms such as derivative should be given an unduly restrictive or technical meaning. I use the qualification unduly as the evidence is that...