Director of Public Prosecutions v MH

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0188

THE DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
MH[1]	Respondent

[1]To avoid any risk of prejudice to the administration of justice initials have been adopted in place of the respondent’s name.

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JUDGES:	PRIEST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 October 2024
DATE OF JUDGMENT:	8 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 232
JUDGMENT APPEALED FROM:	DPP v [MH] (Unreported, County Court of Victoria, 3 October 2024, Judge Bayles)

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CRIMINAL LAW – Interlocutory appeal – Possession of precursor chemicals ‘without being authorized by or licensed under [the] Act or the regulations (if any) to do so or otherwise without a lawful excuse’ – Whether ‘without lawful excuse’ constitutes an element of offence – Whether burden of establishing lawful excuse rests on accused – Absence of a lawful excuse is an element which the prosecution must prove – Application for leave to appeal against interlocutory decision refused.

Drugs, Poisons and Controlled Substances Act 1981 ss 71D, 104 considered.

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Counsel
Applicant:		Mr J O’Toole
Respondent:		Mr R Nathwani SC with Ms J Swiney
Solicitors
Applicant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Robinson Gill Lawyers

PRIEST JA
KAYE JA:

Throughout late September and early October the respondent has faced trial in the County Court on an indictment charging him with the possession of substances, material, documents or equipment for trafficking in a drug of dependence (two charges – charges 1 and 2), and the possession of precursor chemicals (three charges – charges 3, 4 and 5), contrary to ss 71A and 71D respectively of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’).
So far as relevant, s 71D of the Drugs Act provides:[2]
[2]Emphasis added to this and following provision.
71D Possession of precursor chemicals
A person who, without being authorized by or licensed under this Act or the regulations (if any) to do so or otherwise without a lawful excuse, possesses a prescribed precursor chemical in a quantity that is not less than the prescribed quantity applicable to that precursor chemical is guilty of an indictable offence ...
Further, s 104 of the Drugs Act provides:
104 Burden of proof
In any proceedings against any person for an offence against this Act the burden of proving any matter of exception qualification or defence shall lie upon the person seeking to avail himself thereof.
On 3 October 2024, before the trial judge was to charge the jury, an issue arose with respect to charges 3, 4 and 5, possession of precursor chemicals. In essence, the issue is whether, for the purposes of a charge under s 71D, the prosecution must prove an absence of lawful excuse for the possession of precursor chemicals, or whether, by reason of s 104, the respondent must prove that he had a lawful excuse for their possession.[3]
[3]We note that, despite the fact that neither party in submissions to the trial judge made any reference whatsoever to the Chater of Human Rights and Responsibilities Act 2006 (‘the Charter’), for the purposes of the application in this Court the respondent’s legal practitioners saw fit to give notice pursuant to s 35 to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission. Neither the Attorney-General nor the Commission sought, however, to intervene. See Charter, ss 34 and 40.
The next day, 4 October 2024, the judge ruled (‘the ruling’ or ‘the interlocutory decision’) that
for the offence created by s71D of the [Drugs Act], the words ‘without lawful excuse’ must be interpreted as constituting an element of the offence that must be proven by the prosecution beyond reasonable doubt. I interpret s 104 of the Act in a similar manner to the application of the law in relation to self-defence, in that the defence carries the burden of pointing to evidence of facts that, if they existed, would establish a lawful excuse.
And that if that is done, the prosecution then bears the legal onus of proving that the possession was without lawful excuse.
Pursuant to certification under s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’), given by the trial judge on 4 October 2024, the Director of Public Prosecutions seeks leave to appeal against the interlocutory decision on a ground that contends that the judge
erred in ruling that, in order to prove an offence under s 71D of the [Drugs Act], the prosecution has to prove beyond reasonable doubt, as an element of the offence, that the respondent possessed the relevant precursor chemical (in excess of the prescribed quantity) without being authorised or licensed under that Act and otherwise without a lawful excuse.[4]
[4]Emphasis in original.
The respondent’s trial has been put on hold pending this Court’s decision.
Evidence given at the trial establishes that, on 26 June 2018, police executed a search warrant at the respondent’s premises in Ballarat. They observed what appeared to be a ‘clandestine laboratory’ set up on a table near the kitchen. The windows of the residence had been covered and taped up preventing all visibility into the premises. A retort stand was set up holding a separation funnel (containing liquid); a bottle labelled ‘toluene’ (an organic solvent); a heating mantle; and a blender containing ‘a fine white powder’. A large number of exhibits were seized, including assorted glassware, condensers and containers, some of which contained solids and liquids. Among other items, police located and seized the precursor chemicals ammonia (the subject of charge 3); ammonium chloride (the subject of charge 4); and dimethylamine (the subject of charge 5).
For the purposes of the trial, the respondent does not dispute that he possessed each of the three precursor chemicals in quantities in excess of the prescribed quantities. Furthermore, the respondent does not dispute that he was not ‘authorized by or licensed under [the] Act or the regulations’ to do so. The central issue in the trial is whether he possessed the precursor chemicals ‘without lawful excuse’.
In a record of interview with police, the respondent denied that he had a drug laboratory set up at his premises, or that he possessed the chemicals seized for the purposes of manufacturing illicit drugs. In summary, he asserted that his intention was to extract platinum and palladium from alumina balls. He stated that he had 50 kilograms of alumina balls that were about one per cent platinum and palladium (that is, 500 grams). Since the price of platinum and palladium is about the same as gold, there was value in reclaiming them.
The essential question that this Court must determine is whether, as the judge held, the words ‘without lawful excuse’ constitute an element of the offence created by s 71D — which must be proven by the prosecution beyond reasonable doubt — or, instead, create a ‘matter of exception qualification or defence’ — which must be established by the respondent on the balance of probabilities.
In our view, the judge’s ruling is correct. The absence of a lawful excuse is an element of the offence in s 71D, which must be proved by the prosecution to the criminal standard.
The phrase ‘without lawful excuse’ is found in a very large number of statutory provisions creating both indictable and summary offences.[5] Although, of course, in any given case, the meaning of the phrase must be derived from the context in which it appears, the phrase ‘without’ lawful excuse generally conveys the absence of an excuse recognised or supported by law.[6] Furthermore, when used in a statutory provision creating an offence, it is generally regarded as importing an element of the offence thereby created, rather than providing a defence.[7]
[5]See, for example, ss 15A, 15B, 16, 17, 18, 19, 20, 21, 22, 23, 31, 80, 83A(5C), 197, 198, 199, 201 (which defines ‘lawful excuse’ for property damage offences in ss 197, 198 and 199), 317AC, 317AE, 317AG and 343 of the Crimes Act 1958.
[6]Compare R v Roach [1988] VR 665, 670 (Tadgell J) (‘Roach’). See also Wong Pooh Yin v Public Prosecutor [1955] AC 93, 100; Carpenter v Police [1969] NZLR 1052, 1053 (Wild CJ); DPP v Wille (1999) 47 NSWLR 255, 258–9 [15]–[24] (Kirby J).
[7]See Roach, 670–71 (Tadgell J).
An example is provided by s 18 of the Crimes Act 1958, which creates the offence of intentionally causing injury in the following terms: ‘A person who, without lawful excuse, intentionally or recklessly causes injury to another person is guilty of an indictable offence’. A well-recognised lawful excuse to that offence — the existence of which the prosecution must disprove — is self-defence. Indeed, any doubt whether the phrase created an element of the offence that the prosecution was required to disprove was dispelled by Roach.
When Roach was decided, s 410 of the Crimes Act 1958 — which has since been repealed — provided: ‘Wherever by this Act doing any act matter or thing or having a specified article or thing in possession without lawful authority or excuse is made, or expressed to be an offence, the proof of such authority or excuse shall lie on the accused’. On a trial for rape-related offences and intentionally causing injury, where the ‘defence’ was consent, the trial judge, in reliance on s 410, directed the jury that, in relation to the offence charged under s 18, the accused carried the burden of proving on the balance of probabilities that the complainant consented to the causing of injury by the accused. The Court of Criminal Appeal held that to be an error. Crockett J observed:[8]
The Judge’s determination that the onus on the Crown of proving [the applicant’s guilt on the charge of intentionally causing injury] was reversed with respect to a defence of lawful excuse was, if I may say so, plainly wrong. Whatever the area of application of the provisions of s 410 of the Crimes Act 1958 might be, its amplitude is certainly not such as to reverse the onus of proof in relation to such defences as consent and self-defence, the burden of negativing which has traditionally rested on the prosecution. Legislation more specific in its terms than that in which the provisions of the Act are expressed would be required before the burden of proof with regard to long-standing common law defences could be held to have been reversed.
[8]Ibid 672.
In the passage from Roach set out above, it is plain that when Crockett J referred to ‘defences’ such as consent and self-defence, he was referring to elements of the relevant offences, the absence of consent and the absence of lawful justification or excuse both being elements of the charged offences. So much is emphasised by certain observations of Tadgell J, who left no doubt that the words ‘without lawful excuse’ create an ingredient (or element) of the relevant offence:[9]
The expression ‘without lawful excuse’ is, no doubt, of broad ambit and, understandably enough, is not defined. We need not now attempt ourselves to define it. It is also an expression that was found in the Crimes Act before the amending Act of 1985 [which introduced the offence in s 18 of intentionally causing injury]. I refer, in particular, to s 197, s 198, and s 199, which in substance respectively create the offences of, without lawful excuse, destroying or damaging, threatening to destroy or damage, or possessing anything for the purpose of using it with the intent to destroy or damage, any property. Interestingly enough, s 201 goes to the trouble of enlarging the concept of a lawful excuse for the purposes of those three sections. ...
Notably, there is also to be found in the Crimes Act still an important body of sections creating offences having the ingredient that the offender acted ‘without lawful authority or excuse’. Those that I have discovered – and I am not confident I have discovered them all – are these: s 264–s 267 inclusive, which prescribe certain forgery offences; s 281, which constitutes the offence of falsely acknowledging bail; s 295 and s 296, s 302, s 307, s 311 and s 312, which all prescribe coinage offences of one kind or another. These sections are contained in Divs 4 and 5 of Pt 1. They are of ancient origin and all can be traced back directly through previous consolidations of the Crimes Act to the Criminal Law and Practice Statute 1864 of the Colony of Victoria ...
[9]Ibid 671–2. (Emphasis added.)
In Chugg, Dawson, Toohey and Gaudron JJ spelled out the approach to be adopted when a provision creating an offence is silent as to the onus of proof. Their Honours observed that the general rule is that the prosecution must prove a defendant’s guilt subject to any statutory exception. And they said: [10]
For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an ‘exception’), which serves to take a person outside the operation of a general rule. See Vines v Djordjevitch.[11] The distinction does not depend on the rules of formal logic: Dowling v Bowie.[12] Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention ‘to impose upon the accused the ultimate burden of bringing himself within it’: Director of Public Prosecutions v United Telecasters Sydney Ltd.[13] The intention may be discerned from express words or by implication. See Reg v Edwards[14] and Reg v Hunt.[15]
[10]Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, 257 (‘Chugg’). (Citations as in original.)
[11](1955) 91 CLR 512, at pp. 519–520.
[12](1952) 86 CLR 136, at p 147.
[13](1990) 168 CLR 594, at pp 599–601.
[14][1975] QB 27.
[15][1987] AC 352.
By its terms, s 104 of the Drugs Act is limited to an ‘exception’, ‘qualification’ or ‘defence’. The absence of a lawful excuse, contemplated by the expression ‘without lawful excuse’, is none of those things. Rather, as we have said, we consider it to be an element of the offence created by s 71D, so that the prosecution is required to prove the absence of a lawful excuse.
There is scant authority as to whether, for the purposes of a charge under s 71D, the prosecution must disprove the existence of a lawful excuse, or the accused must establish that he or she had a lawful excuse, for the possession of precursor chemicals. In Finn, in his charge to the jury and in his reasons for sentence, Nettle J appears to have assumed that the prosecution bore the onus of disproving the existence of a lawful excuse to the criminal standard.[16] Against that, in Lipp, the Court appears to have concluded that the onus is upon the accused to establish that he has a lawful excuse for the relevant possession.[17]
[16]Nettle J was the trial judge in R v Finn. See [2011] VSC 253, [14]. His directions to the jury are set out in Finn v The Queen [2012] VSCA 46, [5].
[17]Lipp v The Queen [2013] VSCA 384, [29] (Redlich JA and Lasry AJA) (‘Lipp’).
Lipp was a sentencing case concerned with asserted double punishment. Among other things, the applicant was convicted of one charge of possessing substances, materials or equipment for trafficking in a drug of dependence under s 71A of the Drugs Act, charge 7, and two charges of possessing a precursor chemical under s 71D, charges 8 and 9. Seeking leave to appeal against sentence, the applicant argued that the convictions and sentences imposed on charges 8 and 9 constituted double punishment, since the act of possessing precursor chemicals was subsumed within the acts founding charge 7. The Court set out the Second Reading speech relevant to the introduction of s 71D, in which the relevant Minister suggested that the section included ‘a “lawful excuse” defence’,[18] and subsequently observed that ‘the onus is upon the accused to establish that he has a lawful excuse for such possession’, referring to s 104 in a footnote.[19] Significantly, however, it does not appear from the reasons for judgment in Lipp that the Court was asked to determine the precise question that the Court as presently constituted is required to determine. Hence, notwithstanding the Minister’s suggestion that the words ‘without lawful excuse’ in s 71D in effect give rise to a defence, and the Court in Lipp observing that the onus is upon the accused to establish that he has a lawful excuse for such possession — which was obiter — we consider that, when s 71D is properly construed, it is plain that the words constitute an element of the offence.
[18]Ibid [28]. See Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2006, 1543, concerning the Drugs, Poisons and Controlled Substances (Amendment) Bill 2006.
[19]Lipp, [29].
An examination of the Drugs Act illustrates that s 104 does have work to do with respect to various other provisions of the Drugs Act which create specific defences.[20] For example, by s 71B(4) it is a ‘defence’ to a charge of supplying a drug of dependence to a child ‘for a person charged to prove that he or she believed on reasonable grounds that the person to whom the drug of dependence was supplied was 18 years of age or older’; and by s 72C, it is a ‘good defence’ on certain charges relating to the cultivation of a narcotic plant if a person adduces evidence that he or she ‘did not know or suspect and could not reasonably have been expected to have known or suspected that the narcotic plant was a narcotic plant’.[21]
[20]The Act also provides for specific exceptions. See ss 34D, 34E and 34F.
[21]Other examples are ss 44(3) and 69SJ(4).
Section 71D of the Drugs Act is located in pt 5, headed ‘Drugs of Dependence and Related Matters’. It is noteworthy that two other provisions located in pt 5 — ss 71E(2) and 71F(4) — specifically exclude the operation of s 104. Section 71E(1) provides that a person who, without being authorised by or licensed under the Act or the regulations to do so or otherwise without a reasonable excuse, possesses a document containing instructions for the trafficking or cultivation of a drug of dependence is guilty of an indictable offence; and s 71F(1) provides that a person who, in defined circumstances, without being authorised by or licensed under the Act or the regulations to do so or otherwise without a reasonable excuse, publishes a document containing instructions for the trafficking or cultivation of a drug of dependence, is guilty of an indictable offence.
In our opinion, however, those provisions do not assist in the interpretation of s 71D, since they are concerned with the absence of a ‘reasonable excuse’ rather than a ‘lawful excuse’. Sections 71E and 71F may be contrasted with s 71D in that they provide that the possession or publishing of the relevant document per se is unlawful unless the accused has a reasonable excuse; whereas, under s 71D, it is the absence of lawful excuse which renders the possession of precursor chemicals criminal; that is, the absence of a lawful excuse makes the possession unlawful.[22]
[22]We note that in R v DA (2016) 263 A Crim R 263 (Ashley, Redlich and McLeish JJA), the Court considered s 49(1)(b) of the Major Crime (Investigative Powers) Act 2004, which (among other things) provided that a person called or examined as a witness was guilty of contempt if he or she ‘without reasonable excuse’ refused or failed to answer any question relevant to the subject matter of the relevant examination under the Act. The Court held (at 444 [47]): ‘[O]n the proper construction of s 49(1)(b), the examinee has the evidentiary burden of adducing or identifying evidence of a reasonable excuse. The onus then falls upon the prosecution to prove beyond a reasonable doubt that those facts or circumstances relied upon by the examinee do not constitute a reasonable excuse’.

In any event, properly understood, the plain effect of ss 71E(2) and 71F(4) is that, on a charge against a person for an offence under either ss 71E or 71F, the accused person does not bear the burden of proving any matter of exception, qualification or defence, upon which he or she seeks to rely.
To risk repetition, s 71D provides that a person commits an offence if he or she possesses more than a prescribed quantity of precursor chemicals ‘without being authorized by or licensed under [the] Act or the regulations (if any) to do so or otherwise without a lawful excuse’. In circumstances where the respondent does not dispute that he was not relevantly authorized or licensed, it is unnecessary to determine whether, had they been in dispute, the prosecution would have borne an onus of disproof of those matters.[23]
[23]See R v Ibrahim (1987) 27 A Crim R 460, 463; Momcilovic v The Queen (2011) 245 CLR 1, 246 [674] (Bell J).
For the foregoing reasons, the application for leave to appeal against the interlocutory decision should be refused.
We would make two final observations.
First, although we were able to resolve the core issue in this case without reference to the Charter, we do not consider that our interpretation of s 71D is incompatible with the human rights set out in pt 2 of the Charter.[24]
[24]See Charter, s 32.
Secondly, we wish to emphasise that the course adopted by the applicant in this case is to be discouraged. It risked the jury having to be discharged, with the concomitant prejudice to the administration of justice. It also meant that, in order to avoid the applicant’s trial miscarrying, this Court was compelled at short notice to make arrangements to deal with a point that was without merit. We hope not to see a repetition of such a course. An application such as this is not what the legislature had in contemplation when it made provision for interlocutory appeals in criminal cases. Fragmentation of the criminal process is highly undesirable.

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[2024] VSCA 232

8 October 2024