R v Cantwell

[2018] NSWDC 353

District Court

New South Wales

Medium Neutral Citation:	R v Cantwell [2018] NSWDC 353
Hearing dates:	25 October 2018
Date of orders:	25 October 2018
Decision date:	25 October 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Drug supplied was not a prohibited drug
Catchwords:	CRIMINAL LAW – Judgment – Allegations of supply prohibited drug – Drug not listed in sch1 of Drug Misuse and Trafficking Act – Not an analogue of drug listed – “addition” and “replacement” – Inn of the Sixth Happiness – Halogen group added to molecule after hydrogen atom removed.
Legislation Cited:	Drug Misuse and Trafficking Act Queensland Drug Misuse Act
Category:	Procedural and other rulings
Parties:	The Crown Robert Bertie Cantwell
Representation:	Counsel: P Johnson – Crown G Wendler - Accused   Solicitors: Director of Public Prosecutions - Crown
File Number(s):	2016/20751

Judgment

1. HIS HONOUR: The accused Robert Bertie Cantwell runs a shop in Manly called the Inn of the Sixth Happiness. The name is a clue as to what the shop supplies. Police searched Mr Cantwell’s premises, the shop, his home and a storage unit and discovered amongst other things a particular substance. He has been charged with supplying it, the allegation being that the substance is a prohibited drug.

2. What police found is a drug known as 5F-AKB48. That particular drug is not specifically listed in sch 1 to the Drug Misuse and Trafficking Act but the prosecution is brought on the basis that that drug is an analogue of a drug which is listed, the listed drug being known as AKB48. The issue as to whether the drug 5F-AKB48 is truly an analogue of AKB48 is a live one and one which I have to decide.

3. I was asked to make an advance ruling as to the meaning of a particular word in the definition of “analogue” to be found in sch 1 to the Drug Misuse and Trafficking Act. The Crown says that the drug 5F-AKB48 is a structural modification of AKB48 obtained by adding a halogen group to it. The Crown thus relies on the words to be found in subpara 6, “the addition of one or more of the following groups, namely halogen, hydroxy, nitro and amino groups.” The question I have been asked to resolve comes down to this: does the word “addition” in subpara 6, include the situation where something is added and at the same time something is removed? This comes about because the difference between AKB48 and 5F-AKB48 is that in the latter the halogen group has been added by removing a hydrogen atom. This is obvious from the molecular formulas of the two substances, AKB48 being C23H31N30 and 5F‑AKB48 being C23H30FN30. (the ‘F’ being fluoride which is the halogen group referred to earlier.)

4. Expert evidence was given. An expert was called by the Crown and one was called by the accused. They both agree that the difference between the two substances is as I have explained.

5. A diagram was tendered which indicates that part of the molecule AKB48 is a carbon atom with three hydrogen atoms attached to it. To produce 5F-AKB48 one of the hydrogen atoms has to be removed to add a fluorine (halogen) atom. That is, because carbon can only have four atoms attached, it cannot have five atoms attached, so to add one, the fluorine atom, a hydrogen atom has to be taken away. It is essential to remove a hydrogen atom otherwise there is nothing for the halogen group to attach to.

6. The Crown’s expert Ms Cullinan was not aware of the possibility that a halogen group could be added to AKB48 without something being removed. In her opinion it could not happen. She said that carbon has to have four atoms attached, so you cannot have an additional atom added.

7. However, when the expert called on behalf of the accused Dr Robertson gave evidence, he said that it was possible to add a halogen group to a different part of the AKB48 molecule without anything being removed. He spoke about the oxygen atom which in AKB48 is attached to the molecule by a double bond. He said that it is possible to split that so that the oxygen atom is attached to the molecule by a single bond with the halogen group being attached to the molecule with the remaining bond.

8. It is unfortunate that that particular avenue of attaching a halogen bond to the AKB48 molecule was not presented to Ms Cullinan for her to comment on. Clearly her answers focussed on the carbon atom. I do not know what she would have said if she had been asked to consider the oxygen atom as Dr Robertson had.

9. The major difference between the two experts was not so much chemical but their understanding of the word ‘addition’ in subpara 6. Dr Robertson was of the opinion that the word ‘addition’ does not cover the situation where something is added to a molecule only after something else is removed. It was his opinion that that is more properly described as a “replacement”. His evidence was that in chemistry there is a well understood concept of an “addition reaction” which does not usually require the removal of any atoms but involves the addition of an atom such as halogen without the loss of any other atom. This of course is not the process by which AKB48 is converted to 5F‑AKB48 as that does involve the loss of the hydrogen atom.

10. Mr Wendler who appears for the accused relies on three particular arguments in support of his submission that 5F-AKB48 is not an analogue of AKB48 because the halogen group can only be added to AKB48 after something else, namely the hydrogen atom, has been removed.

11. The first of those arguments involves consideration of other subparagraphs of the definition of analogue. It is to be noted that subpara 7 speaks of “replacement”. Thus Mr Wendler says that had Parliament wanted to cover chemical processes by which are similar to those I am considering, it could have used the word ‘replacement’ in subpara 6 rather than the word ‘addition’. The use of the two words ‘addition’ and ‘replacement’ in the same definition suggests that the two words have different meanings and that if the word ‘addition’ included situations where something is replaced by something else then the word ‘replacement’ would not have been used.

12. Mr Wendler’s second argument is that I should accept Dr Robertson’s evidence that chemically a halogen group can be added to AKB48 without something being removed, so it is not implicit in the use of the word ‘addition’ that something has to be first taken away.

13. Mr Wendler’s third argument involves a consideration of Queensland legislation. Dr Robertson was familiar with Queensland legislation and s 4A of the Queensland Drugs Misuse Act was provided to me. There was no challenge to Dr Roberston’s evidence that if all this happened in Queensland 5F-AKB48 would be an analogue of AKB48.

14. In my view these submissions should be accepted, the strongest of which here is the first. Although the word ‘addition’ can have various meanings, some of which do not necessarily require that something is taken away, the fact that the word ‘replacement’ appears in the same definition does to my mind mean that a distinction has to be drawn between the situation where something is added without anything being taken away and where something is only added after something else has been removed. It is clear as far as subpara 6 is concerned that the particular chemical process by which the drug which apparently Mr Cantwell supplied is derived from a prohibited drug thus involves more than something being added and it is more appropriate to speak about the process of replacement taking place.

15. For these reasons I find that the word ‘addition’ does not include the situation where something is added and something is removed.

16. Thus, if I was to direct a jury I would direct them in those terms and given the evidence from both of the experts the consequence would be that the jury would have 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.

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Decision last updated: 28 November 2018