Daley v Tasmania
[2012] TASCCA 4
•30 March 2012
[2012] TASCCA 4
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Daley v Tasmania [2012] TASCCA 4
PARTIES: DALEY, Thomas William
SHIPP, Allison Patricia
v
TASMANIA, STATE OF
FILE NO/S: CCA 1060/2011
JUDGMENT
APPEALED FROM: Tasmania v Daley and Shipp [2011] TASSC 43
DELIVERED ON: 30 March 2012
DELIVERED AT: Hobart
HEARING DATE: 9 March 2012
JUDGMENT OF: Blow, Porter and Wood JJ
CATCHWORDS:
Criminal Law – Particular offences – Drug offences – Identity of prohibited substances – Generally – Meaning of "derivative".
Misuse of Drugs Act 2001 (Tas), Schedule 1, Part 2, cl 1(c).
Jager v R (1977) 139 CLR 28; Beckwith v R (1976) 135 CLR 569, referred to.
Aust Dig Criminal Law [2449]
REPRESENTATION:
Counsel:
Appellants: K Cuthbertson
Respondent: J Ransom
Solicitors:
Appellants: Pedder Schuh Lawyers
Respondent: Director of Public Prosecutions
Judgment Number: [2012] TASCCA 4
Number of paragraphs: 30
Serial No 4/2012
File No CCA 1060/2011
THOMAS WILLIAM DALEY and ALLISON PATRICIA SHIPP
v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
PORTER J
WOOD J
30 March 2012
Orders of the Court (9 March 2012)
Appeal dismissed.
That the first named appellant be taken into custody to resume serving his sentence.
Serial No 4/2012
File No CCA 1060/2011
THOMAS WILLIAM DALEY and ALLISON PATRICIA SHIPP
v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
PORTER J
WOOD J
30 March 2012
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.
The two appellants were indicted on a single charge of trafficking in a controlled substance, contrary to the Misuse 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.
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 a voir 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.
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".
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.
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 —
(i) that substance prepared from natural sources or artificially; and
(ii) every salt, active principle or derivative, including esters and ethers, and every salt of such an active principle or derivative; and
(iii) every alkaloid of the substance and every salt of such an alkaloid; and
(iv) except where the substance is levomethorphan or levorphanol, every stereo-isomer of the substance and every salt of the stereo-isomer; and
(v) a preparation or admixture containing any proportion of the substance."
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.
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.
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.
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, 2nd 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 10th edition of that dictionary in 1993.
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.
Evans J took into account the requirement of the Acts 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 the Misuse 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 theoretically, given time and resources, virtually every compound could be converted into every other compound. Again, theoretically, virtually every compound is structurally related to every other compound.
[20] For these reasons I conclude that the meaning of derivative when used in relation to chemicals encompasses both the concept of a substance made from another and the concept of a substance that is structurally related to another, but that the meaning should be qualified so as to exclude such an association that is no more than theoretical. I conclude that derivative means a substance or compound that can readily be made from another substance or compound, as well as a substance or compound that is closely related structurally to another substance or compound."
Crawford CJ provided the jury with a memorandum which, amongst other things, dealt with the meaning of "derivative". The substance of his directions as to the meaning of that word appears in pars4 to 6 of that memorandum, which read as follows:
"4The Act says that a reference to a substance in the list includes 'every salt, active principle or derivative', of a listed substance.
5It is a question of fact for the jury to decide whether it is beyond doubt that 4‑methylmethcathinone is a derivative of methcathinone. That is the first of two major issues in this case. If it is a derivative of methcathinone, then 4‑methylmethcathinone is also a controlled substance.
6The meaning of derivative, when used in relation to chemicals, encompasses both the concept of a substance made from another and the concept of a substance that is structurally related to another. A derivative means a substance or compound that can readily be made from another substance or compound, as well as a substance or compound that is closely related structurally to another substance or compound. Relying on the evidence of Dr Manthey, the Crown case is that 4-methylmethcathinone is closely related structurally to methcathinone and for that reason is a derivative of it and, therefore, a controlled substance. The defence case is that 4‑methylmethcathinone is not closely related structurally to methcathinone."
Counsel for the appellants referred us to a number of items in Part 2 of schedule 1, as follows:
"27Benactyzine and other substances structurally derived from diphenylmethane with ataractic properties
…
29 Benzodiazepine derivatives not elsewhere specified in this schedule
…
2803,4,5-trimethoxyphenethylamine (otherwise known as mescaline) and other substances structurally derived from methoxyphenylethylamine and not separately specified in this schedule except methoxyphenamine."
She argued that the use of the words "structurally derived" in items 27 and 280 suggested that the word "derivative" should not be interpreted as including a substance or compound structurally derived from another substance or compound. We disagree.
Item 27 includes certain substances with ataractic properties that are structurally derived from diphenylmethane. Diphenylmethane does not appear in the schedule and therefore might not be a controlled drug. We cannot rule out the possibility that it is related to a listed controlled drug in such a way that it is a controlled drug by virtue of cl 1(c). The fact that Parliament referred to "substances structurally derived from diphenylmethane" rather than "analogues of diphenylmethane" suggests that, for the purposes of the schedule, it was treating analogues as derivatives. By using the words "other substances structurally derived from diphenylmethane", it was prohibiting a smaller class than would have been the case if the words used had been "other derivatives of diphenylmethane". Prohibiting a class of drugs in items 27 and 280 by reference to structural derivatives of a specified substance has two advantages – it is not necessary to list every drug in the class individually, and it gives the schedule flexibility if new drugs are developed.
It seems likely that similar points can be validly made about the use of the words "other substances structurally derived from methoxyphenylethylamine" in item 280. Methoxyphenylethylamine does not appear in the schedule as a listed controlled drug. However, as counsel for the appellants pointed out, 4-methoxyphenylethylamine appears as item 170. Without expert evidence as to the distinction between that compound and methoxyphenylethylamine, it would be unwise for us to say very much about item 280. However it is significant that Parliament chose to refer to "substances structurally derived" rather than "analogues".
In our view, the reference to derivatives in item 29 does not lend support to either of the competing interpretations of the word "derivative".
In our view, the wording of the schedule very strongly suggests that Parliament did not use the words "substances structurally derived" in items 27 and 280 to refer to a substance that would not be a "derivative" within the meaning of cl 1(c)(ii), but was treating "structurally derived" substances as a particular class of derivatives.
Counsel for the appellants referred us to expert evidence given on the voir dire before Evans J as to the meanings of "salt", "ester", and "ether" – all words used in cl 1(c). In our view, all of that evidence is equally consistent with each of the competing meanings of "derivative". The evidence as to the meanings of those three words clearly suggests that "derivative" was intended to have a technical scientific meaning. However both suggested meanings of "derivative" are technical scientific meanings.
Counsel for the appellants referred to the decision of the New South Wales Court of Criminal Appeal in McEwen v R (1998) 99 A Crim R 421. The issue in that case was whether a particular substance fell within the description "other substances structurally derived from methoxyphenylethylamine being those substances having hallucinogenic properties". It was argued, unsuccessfully, that expert evidence as to the meaning of the words "structurally derived" should not have been admitted, and that the jury should have been given a direction to the effect that those words related to the production of a substance, rather than structural similarity. In our view, there is nothing in that case that assists us in determining whether the word "derivative" in cl 1(c)(ii) is used in a wide sense, so as to include an analogue, or a narrow sense, so as not to include an analogue.
Counsel for the appellants referred us to the expert evidence given on the voir dire and on the trial as to the meanings of "derivative" and "analogue". On the voir dire, one of the experts called as a witness for the appellants, Dr Piggott, was asked to comment on the following passage, which was said to come from the Oxford Dictionary of Biochemistry and Molecular Biology:
"A derivative is a compound that is derived from a similar compound by some chemical or physical process. In the past it was also used to mean a compound that can be imagined to arise from another compound if one atom is replaced with another atom or group of atoms. But modern chemical language now uses the term structural analogue for this meaning thus eliminating ambiguity of both terms. The term structural analogue is common in organic chemistry. In biochemistry the word is used for compounds that at least theoretically can be formed from the precursor compound."
The transcript of his evidence in relation to that passage reads as follows:
"Um, that is certainly the way that I feel about the two words and I think that the majority of chemists would feel the same way, but there has been recent (inaudible) where people still use that old definition of derivative um, in the same context as analogue or trying to mean the same thing as analogue, so I'd say it is much better to use the term analogue to mean structurally similar, and derivative to me means something different, but some scientists still use derivative to mean analogue, but I totally agree with the definition that you just read out."
The expert evidence, both on the voir dire and on the trial, did not get any more favourable to the appellants than that. Clearly. the word "derivative" is still used by a significant number of chemists not only to refer to a compound made from another compound, but also to refer to an analogue. The latter use of the word might be old-fashioned and unpopular, but it is by no means extinct.
Counsel for the appellants argued that this was not a case in which the Acts Interpretation Act, s8A, had any impact. As Dawson, Toohey and Gaudron JJ pointed out in relation to the Victorian equivalent of s8A in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 262:
"The choice directed … is not as to the construction which 'will best achieve' the object of the Act. Rather, it is a limited choice between 'a construction that would promote the purpose or object [of the Act]' and one 'that would not promote that purpose or object'."
In our view, the modern narrow construction urged upon us by counsel for the appellants would not promote the purpose or object of the Act, but the wide old-fashioned construction adopted by Evans J and Crawford CJ does promote the purpose or object of the Act. The long title of the Act is "An Act to prohibit the misuse of drugs and activities associated with the misuse of drugs and for related purposes". As Evans J pointed out in the passage quoted above, the narrow construction could result in the legislation being circumvented by the manufacture of analogues of prohibited drugs that have similar properties but are not prohibited. It is clear, when one considers cl 1(c) as a whole, that Parliament was seeking to promote the objective of prohibiting the misuse of drugs by prohibiting activities not just in relation to the substances enumerated in the relevant schedule, but to all sorts of similar substances, including salts, esters, ethers and derivatives. It follows that a wide interpretation of the word "derivative" would promote the purpose or object of the Act, whereas a narrow construction would not. It is possible that some analogues of some controlled drugs might be harmless but, in our view, that possibility does not detract from that conclusion.
In our view, an historical examination of the use of the word "derivative" in Tasmanian drug legislation also indicates that a wide construction should be preferred. It seems clear that the wording of cl 1(c) was inspired by the recommendations in 1997 referred to above. However the word "derivative" has been used in Tasmanian drug legislation ever since the enactment of the Poisons Act 1916. A schedule to that Act included a list of poisons. That list, in its original form, included the following:
"Alkaloids – All poisonous vegetable alkaloids and poisonous glucosides not specifically named in this schedule, and all poisonous derivatives of vegetable alkaloids and glucosides.
…
Coca, Cocaine, and its salts and derivatives, and any preparation or admixture containing 1 per centum or more of Coca alkaloids or their salts or derivatives.
…
Morphine, and its salts, and its poisonous derivatives."
That Act was repealed and replaced by the Poisons Act 1971, s3(1) of which has contained the following definition from the time of its enactment:
"'substance' includes a preparation, an admixture, and a salt or derivative of a substance".
That Act remains in force, and that definition has not been amended.
There is nothing in any of the relevant statutes to indicate that Parliament intended to use the word "derivative" in a narrower sense in 2001 than it did in 1971 or 1916.
Counsel for the appellants relied on the principle of statutory interpretation whereby any ambiguity in a penal statute is resolved by adopting an interpretation favourable to the subject rather than the Crown. In our view, there is no scope for the operation of that principle in this case. As Gibbs J (as he then was) said in Beckwith v R (1976) 135 CLR 569 at 576:
"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences … The rule is perhaps one of last resort."
In our view, particularly having regard to the purpose or object of the Act and the history of the use of the word "derivative" in Tasmanian drug legislation, we think that the interpretation adopted by Evans J and by Crawford CJ was correct. That is why we dismissed the appeal.
Daley v Tasmania [2012] TASCCA 4
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