R v Li

[2017] NSWDC 86

District Court

New South Wales

Medium Neutral Citation:	R v Li [2017] NSWDC 86
Hearing dates:	2 March 2017
Date of orders:	02 March 2017
Decision date:	02 March 2017
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	I am satisfied that the deeming provision does not apply and the Crown for count 2 will have to prove beyond reasonable doubt an intention on the part of the accused to manufacture a controlled drug.
Catchwords:	CRIMINAL LAW – Judgment – Deeming provision
Legislation Cited:	Commonwealth Criminal Code
Category:	Procedural and other rulings
Parties:	The Crown Haobin Li
Representation:	Counsel: Ms J Roy – The Crown Mr I Lloyd QC – The accused   Solicitors: Director of Public Prosecutions –Cth
File Number(s):	2015/263924

Judgment

1. HIS HONOUR: The issue I have to decide at this stage of trial is whether a deeming provision in s 308.2(3) of the Commonwealth Criminal Code applies.

2. Briefly, that deeming provision reverses the onus of proof such that if the prosecution proves that the accused was in possession of a substance, it becomes the task of an accused to prove that he or she did not possess the substance with an intention to manufacture a controlled drug rather than it being the usual case that the prosecution has to prove that element beyond reasonable doubt.

3. There are a number of steps which need to be considered in determining whether the deeming provision applies. The first step is to determine whether a law of the Commonwealth or of a State or Territory required the possession of the substance to be authorised. That in turn depends upon whether the substance the accused possessed was a Schedule 9 poison and that in turn depends on whether the substance the accused possessed is a “derivative” of MDMA. It is agreed between the parties that this is an issue for me to decide rather than a question of fact for the jury.

4. The accused was found in possession of 3,4-Methylenedioxyphenyl-2-propane, “MDP2P”. He is charged in count 2 on the indictment with possessing that drug with the intention of using it to manufacture a controlled drug, namely MDMA.

5. This morning I heard brief evidence from Dr Degratzia who has a PhD in chemistry. He drew me two diagrams, one showing the MDP2P molecule and one showing the MDMA molecule. He explained the process by which MDP2P is converted, or can be converted, to MDMA both in oil form and then in its more common powder or tablet form. He explained that the Regulation which the Crown relies on does not have a lot of meaning to a chemist.

6. MDP2P is not named in Schedule 9. MDMA is. The Crown therefore relies on Part 1.1 of the Poisons Standard which says that

“Unless the contrary intention appears a reference to a substance in a Schedule or an Appendix to the standard includes ... (c) every salt active principle or derivative of the substance ...”

7. The Crown says that MDP2P is a “derivative” of MDMA, relying on some words in the Poisons Standard introduction which say:

“Classification of a substance as the derivative of a scheduled poison relies on a balanced consideration of factors to decide if a substance of a similar nature (e.g. structurally, pharmacologically, toxicologically) to a scheduled poison or is readily converted (either physically or chemically) to a scheduled poison”.

8. The Crown says that MDP2P and MDMA are similar and have a similar structural nature. Therefore, says the Crown, MDP2P is a Schedule 9 poison, its possession is required to be authorised, so the deemed provision applies.

9. I do not agree with that submission and I will explain why. The Crown relies on the word “derivative”. The Crown says that the word “derivative” should be interpreted as an expression which covers two substances of a similar nature. There is, however, no evidence that MDMA can be converted to MDP2P. There is evidence that MDMA can be derived from MDP2P in the process described by Dr Degratzia. In my view the word “derivative” has been chosen by the draftsperson such that things only work one way. The substance MDP2P cannot be, or at least there is no evidence that it can be, derived from MDMA.

10. The Poisons Standard Introduction does not say that the word “derivative” is to be interpreted as “similar”. I accept that the two molecules are similar in structure but I am of the opinion that structural similarity is not enough. There must be evidence that one molecule is derived from another molecule. As I have said, the evidence established that MDMA can be derived from MDP2P but there is no evidence to suggest the contrary.

11. The result is that I am satisfied that the deeming provision does not apply and the Crown for count 2 will have to prove an intention on the part of the accused to manufacture a controlled drug beyond reasonable doubt.

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Decision last updated: 20 April 2017