R v BD - [2001] NSWCCA 184

Reported Decision:
122 A Crim R 28

New South Wales

Court of Criminal Appeal

CITATION: Regina v B D [2001] NSWCCA 184

FILE NUMBER(S): CCA 60073/01

HEARING DATE(S): 30/04/01

JUDGMENT DATE:
15 May 2001

PARTIES :

Regina
B D - Respondent

JUDGMENT OF: Stein JA at 1; Greg James J at 2; Bell J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/41/0175

LOWER COURT JUDICIAL
OFFICER : Graham DCJ

COUNSEL : M C Marien - Appellant
J P Punch - Respondent

SOLICITORS: S E O'Connor - Appellant
Galloways - Respondent

CATCHWORDS: Question submitted by Director of Public Prosecutions pursuant to s5A(2) Criminal Appeal Act 1912 - does obtaining and transporting ingredients and implements constitute taking a step in the process of manufacture of prohibited drugs

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Legislation Further Amendment Act 2000
Drug Misuse and Trafficking Act 1985

CASES CITED:
Director of Public Prosecutions Reference No 2 of 1995 (1995) 65 SASR 508
Federal Commissioner of Taxation v Jack Zinader Pty Ltd (1949) 78 CLR 336
McNicol v Pinch (1906) 2 KB 352
R v Kouroumalos [2000] NSWCCA 453
R v Thomas (1993) 67 A Crim R 308

DECISION: Question answered in the negative

60073/01

STEIN JA

GREG JAMES J

BELL J

TUESDAY 15 MAY 2001

REGINA v B D

JUDGMENT

1 STEIN JA: I agree with Bell J.

2 GREG JAMES J: I agree with Bell J.

3 BELL J: Pursuant to s 5A(2) of the Criminal Appeal Act 1912 (“the CAA”) the Director of Public Prosecutions submitted the following question for determination by this Court:

“Did his Honour Judge Graham err in law in concluding that the obtaining and transporting of ingredients (namely, Sudafed, phosphorous powder and orthophosphoric acid) and implements to be used in the manufacture of methylamphetamine could not constitute taking a step in the process of manufacture within the meaning of s6 of the Drug Misuse and Trafficking Act 1985 (“the Act”)?”

4 The question of law arises from the trial of the respondent upon an indictment charging him that on 4 April 1998 he did knowingly take part in the manufacture or production of a prohibited drug, to wit, methylamphetamine, in an amount not less than the commercial quantity applicable to that drug contrary to s 24(2) of the Act. The respondent elected to be tried to judge alone. The trial commenced before Judge Graham on 4 December 2000. On 5 December 2000 at the conclusion of the Crown case his Honour determined that there was no case to answer and entered a verdict of not guilty.

5 This Court is required to hear and determine any question submitted to it under s 5A(2) of the CAA. The determination of the question submitted does not in any way affect or invalidate the verdict given by his Honour. Provision is made in s 5A(2)(e) of the CAA for the person charged at trial to be heard before the Court upon the determination…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v BD

Details

AGLC: R v BD [2001] NSWCCA 184
Case: [2001] NSWCCA 184
Decision Date: 15 May 2001

CaseChat Overview and Summary

The case before the court involved the Director of Public Prosecutions seeking clarification on whether obtaining and transporting ingredients and implements for the manufacture of prohibited drugs constitutes a step in the process of drug manufacture, under section 5A(2) of the Criminal Appeal Act 1912. The defendant, BD, was charged with offences related to the manufacture of prohibited drugs. The central issue was whether the actions of obtaining and transporting ingredients and implements, without any further steps towards drug manufacture, could be considered a part of the manufacturing process.

The court was tasked with determining if the mere procurement and transportation of ingredients and implements, without any further action towards the actual manufacturing process, could be construed as taking a step in the manufacture of prohibited drugs. The legal framework under consideration was section 5A(2) of the Criminal Appeal Act 1912, which allows for questions of law to be submitted to the court for determination.

In its reasoning, the court held that obtaining and transporting ingredients and implements, without any further steps towards the actual manufacture of drugs, does not constitute taking a step in the process of manufacture of prohibited drugs. The court emphasised that the actual process of manufacture involves more than just procurement and transportation; it requires a series of actions directed towards the creation of the prohibited drugs. Therefore, the court concluded that such activities, in isolation, do not meet the threshold for being considered a part of the manufacturing process. This decision was based on a careful interpretation of the statutory language and the understanding of what constitutes an actual step in the manufacturing process.

The court's decision resulted in the quashing of the defendant's convictions related to the charges of taking a step in the process of manufacture of prohibited drugs. The court's ruling clarified the scope of the manufacturing process under the relevant legislation, providing a more precise understanding of what actions constitute a step in the manufacturing process of prohibited drugs.

Orders