R v Marchione

[2002] NSWCCA 131

Reported Decision: (2002) 128 A Crim R 575

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Marchione [2002] NSWCCA 131
FILE NUMBER(S):	CCA 60640/01
HEARING DATE(S):	7/11/01
JUDGMENT DATE:	12 April 2002
PARTIES :	John Marchione (Appellant) Regina
JUDGMENT OF:	Heydon JA at 1; Dowd J at 2; Bell J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/1002
LOWER COURT JUDICIAL OFFICER :	Norrish DCJ

COUNSEL :	G. Smith (Regina) J. Gordon (Appellant)
SOLICITORS:	SE O'Connor LMG Solicitors (Appellant)
LEGISLATION CITED:	Criminal Appeal Act 1912 District Court Rules 1973 Drug Misuse and Trafficking Act 1985
CASES CITED:	Jago v The District Court of New South Wales (1989) 168 CLR 23 R v Edelsten (1989-90) 18 NSWLR 213 R v Lethlean (1995) 83 A Crim R 197 R v Thomas (1993) 67 A Crim R 308 Regina v Groves (unreported) NSWCCA 2 April 1990 Ridgeway v The Queen (1994-1995) 184 CLR 19 Walton v Gardiner (1992-1993) 177 CLR 379
DECISION:	Time extended in which to file the notice of appeal; Appeal dismissed

60640/01

HEYDON JA
DOWD J
BELL J

12 April 2002

REGINA v John MARCHIONE

Judgment

1 HEYDON JA: I agree with Bell J.

2 DOWD J: I agree with the proposed orders of Bell J and her reasons for those orders.

3 BELL J: This is an appeal brought pursuant to s 5F(3)(b) of the Criminal Appeal Act 1912 (“the Act”) against an order of Norrish DCJ refusing an application that he permanently stay proceedings on an indictment.

4 The indictment charged the appellant with two counts; (i) that between 17 January 2000 and 2 June 2000 in the State of New South Wales he did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine, and (ii) that on 25 January 2000 at Erskine Park in the State of New South Wales he did knowingly take part in the supply of a prohibited drug, namely methylamphetamine.

5 The offence charged in count one is created by s 24(1) of the Drug Misuse and Trafficking Act 1985 (“the DMT Act”). The offence charged in count two is created by s 25(1) of the DMT Act.

6 It appears that the appellant’s trial was listed to commence before Judge Norrish QC on Monday 27 August 2001. On that day the appellant’s counsel moved for an order permanently staying proceedings on count one of the indictment (“the order”). The motion was not on notice and did not conform with the requirements of Pt 53 r 10 of the District Court Rules 1973.

7 The basis upon which the order was sought does not appear to have been identified with clarity. His Honour treated the application as one to permanently stay the proceedings upon the basis that to prosecute the offence charged in count one would amount to an abuse of the processes of the court since the proceedings with respect to that count were foredoomed to fail.

8 It was the appellant’s contention before the primary judge (and in this Court) that the evidence available to the Crown was not capable of establishing the appellant’s guilt of the charge alleged in count one.

9 On 28 August 2001 his Honour declined the application that he permanently stay proceedings on the indictment.

10 On 29 August 2001 Judge Norrish issued a certificate pursuant to s 5F(3)(b) of the Act that the judgment or order annexed to the certificate was a proper one for determination on appeal by this Court upon grounds submitted by the appellant, namely:

(i) I wrongly interpreted sections 6 and 24(1) of the Drug Misuse and Trafficking Act 1985;
and/or
(ii) I misapplied the decision of the Court of Criminal Appeal in R v BD [2001] NSWCCA 184;
and/or
(iii) In the premises of grounds (i) and/or (ii) above, and upon the evidence placed before me, I wrongly declined to order the permanent stay of proceedings sought by the accused in respect of count one in the indictment.

11 A party to whom s 5F(3) applies who desires to appeal to this Court is required to give notice of appeal within fourteen days of the date of the judgment or order or within such extended time as may be allowed by the Court; r 5B of the Criminal Appeal Rules. The notice of appeal in this case was filed out of time on 25 September 2001. By that notice the appellant applies for leave to appeal pursuant to s 5F(3)(a). In fact, the appellant brings this appeal pursuant to s 5F(3)(b) and, accordingly, does not require leave. The appellant seeks an extension of time in which to bring his appeal. The reasons for the delay in filing the notice of appeal are set out in the application signed by Simon Mitchell, the solicitor for the appellant. I would allow the extension of time sought.

12 When the matter came on for hearing the Crown Prosecutor raised a preliminary question as to this Court’s jurisdiction to entertain the appeal. The Court heard submissions as to the merits of the appeal and granted leave to the Crown and to the appellant to file written submissions on the jurisdictional question.

13 In written submissions the Crown put the jurisdictional challenge in this way:

“This appeal is incompetent in that it challenges the primary Judge’s finding that the prosecution evidence established that the appellant had a case to answer. Such a ruling is not an interlocutory judgment or order given or made in the proceedings for the purposes of s 5F of the Criminal Appeal Act .”

14 The Crown placed reliance on the decision of this Court in R v Lethlean (1995) 83 A Crim R 197. In Lethlean the appellant was charged with an offence pursuant to s 178BB of the Crimes Act 1900 of obtaining money by means of a false statement. At the close of the Crown case the appellant submitted that there was no case to answer. This submission was rejected by the trial judge. The appellant informed the Court that he wished to appeal pursuant to s 5F(3) and was granted a certificate under subparagraph (b). The Crown successfully contended that the appeal was not against an interlocutory judgment or order given or made in the proceedings. Sheller JA (in a judgment with which Allen and Hulme JJ agreed) said:

“In my opinion the words used in s 5F(3), ‘judgment or order’ no more embrace a direction to the jury to acquit or the decision upon which that direction is based than the same words when used in s 73 of the Constitution. In the present case if the trial had been before a judge and jury and the judge had concluded that there was no case to answer and directed the jury to acquit, the direction would have been neither a judgment nor an order. Nor would a judge’s statement that he would not give such a direction even though the judge might give lengthy reasons. It falls on that side of the line to which the Chief Justice referred in Saunders [(1994) 72 A Crim R 347] at 348 when he said it did not follow that every ruling or direction given before or during the running of a trial might be the subject of an appeal or an application for leave to appeal under s 5F.”

His Honour reviewed the authorities dealing with what constitutes an “interlocutory judgment or order given or made in the proceedings” for the purposes of s 5F and concluded by observing:

“In my opinion what Judge Job was asked to do in the present case, correctly categorised, was to rule on a point of law raised during the hearing. This like a ruling on the admissibility of evidence is not within the meaning of s 5F(3) an interlocutory judgment or order. This conclusion accords with the object and purview of the section and decisions of the Court in Powch , Groves , Rogerson and Steffan . Notwithstanding the inclusion, in the case of any party other than the Attorney-General or the Director of Public Prosecutions, of the need to obtain the leave of the Court of Criminal Appeal or the certificate of the court of trial, the legislature should not be taken to have intended that the course of a criminal trial should be interrupted by appeals from rulings on law or evidence. In my opinion no appeal lay under s 5F(3) from Judge Job’s decision that there was a case to answer. I would uphold the jurisdictional point raised by the Crown and dismiss the appeal.”

15 In the present case although it would seem that there was some lack of formality in the way the appellant’s application was framed, it was an application that the proceedings charged in count one of the indictment be permanently stayed. An order permanently staying an indictment or, conversely, declining so to do is one which falls within the terms of s 5F; Regina v Edelsten (1989-90) 18 NSWLR 213; Regina v Bozatsis and Spanakakis (1997) 97 A Crim R 296. There is undoubted jurisdiction to stay proceedings on indictment upon the ground that their continuance would amount to an abuse of the process of the Court; Jago v The District Court of New South Wales (1989) 168 CLR 23; Ridgeway v The Queen (1994-1995) 184 CLR 19.

16 The application was advanced upon the basis that the abuse was of the character described by Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1992-1993) 177 CLR 379 at 393:

“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and the impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse if they can be clearly seen to be foredoomed to fail.”

17 The success of the appellant’s application depended upon persuading the primary judge that the evidence upon which the Crown proposed to rely upon at trial was not capable of supporting the charge which it brought. It is true that such a contention if advanced, and rejected, at the close of the Crown case would not have afforded the appellant a basis for seeking leave to appeal under s 5F(3)(a). However, the order appealed against is that of a refusal of a stay and not a ruling made during the trial such as that in Lethlean.

18 In R v Steffan (1993) 30 NSWLR 633 the Court observed at 640-641:

“It was submitted by the Crown that, in order to prevent the circumvention of the restricted terms of s 5F, this Court should always refuse leave to appeal from a refusal of a stay where that decision is based upon a ruling as to the admissibility of evidence. We are not prepared to accept that submission in the absolute terms in which it was expressed. Although it is not easy to formulate an example, there may well be the rare case where a ruling upon the admissibility of evidence in favour of the accused would demonstrate a proper basis for a stay of proceedings, so that it would be appropriate to grant leave to appeal from a refusal of a stay in such a case notwithstanding that the principal legal issue which would be determined in the appeal was the admissibility of evidence. This Court’s decision in R v Groves [(unreported), NSWCCA, 2 April 1990] did not go so far as this submission by the Crown goes.

19 I consider that the challenge to this Court’s jurisdiction to entertain the appeal must fail. It is, however, appropriate to bear in mind the observations of this Court in Groves. In that case an application for leave to appeal was brought pursuant to s 5F(3)(a) from a decision of a judge of the District Court refusing a permanent stay of proceedings against the applicant upon an indictment charging him with five counts of sexual intercourse without consent and one count of indecent assault. The grounds of appeal formulated in the application for leave to appeal included that the further prosecution of the application would be an abuse of process in that the applicant could not lawfully be convicted on the evidence proposed to be adduced by the Crown. In dealing with this latter ground the Court observed:

“This ground was not argued before Flannery DCJ, or raised in the original application for leave to appeal. As a threshold point, therefore, the applicant requires leave to argue it before this Court. Since it involved a possible point of general importance, we heard the argument before ruling on the question of leave. In essence, counsel for the applicant submitted that the identification evidence was so weak that, acting according to law, the trial judge would be bound to direct an acquittal on the basis that there was no evidence to support a conviction. He submitted that the trial judge should come to that situation in either of two ways. The first would be by rejecting the evidence, in the exercise of his discretion, on the basis that its probative weight was outweighed by its prejudicial effect. Alternatively, it was submitted, he could rule that the evidence was so tenuous that there was no case which could be left to the jury.
In this way it was argued the applicant ‘could not lawfully be convicted’ on the evidence proposed to be adduced by the Crown, so that the further prosecution of him would amount to an abuse of process.
The applicant faces a difficulty in seeking to raise either proposition in this case by way of an application for leave to appeal under s 5F. First, the trial judge was not invited to rule on the admissibility of the evidence or to exercise the discretion in question, nor was he asked to rule that there would be insufficient evidence to go to the jury. Had he made any such ruling at the commencement of or during the trial, it would not have been amenable to an appeal under s 5F: Regina v Jeffrey Walter Edelsten (CCA, 7 November 1989 unreported) and Regina v Powch (1988) 14 NSWLR 136. It is difficult to see why the applicant should be permitted to have an appellate court review a decision refusing to stay the further prosecution of the proceedings on these grounds, when they were not taken before the trial judge, and when the relevant rulings during the trial could not have been reviewed save by appeal after conviction pursuant to s 5 of the Criminal Appeal Act 1912.
As the decisions in Edelsten and Powch show appeals under s 5F are to be kept within strict confines. This Court should be slow to permit those decisions to be watered down by allowing parties to pursue, as grounds for stay applications, matters which are more properly the subject of rulings or decisions in the trial and are amenable to appeal under s 5.
…
Although we do not wish to foreclose entirely the possibility that considerations relative to the ability of the Crown to call a case sufficient to go to the jury, or relative to the integrity of a verdict, cannot be taken into account on a stay application brought prior to trial, we cannot as presently advise envisaged circumstances in which that might be appropriate.”

20 The Crown case against the appellant depends substantially upon inferences to be drawn from the contents of telephone discussions (which were recorded pursuant to warrants issued under the Telecommunications (Interception) Act 1979 (Cth)) between him and a man named Ivan Tesic (“Tesic”).

21 In a telephone conversation between the appellant and Tesic recorded at 6:01 pm on 3 May 2000 the following exchange takes place:

“JM: What are ya doin?
IT: You gettin’ it happening or what?
JM: Where are you?
IT: Penrith
JM: Penrith?
IT: Hmm.
JM: You … you wanna come past my house …
IT: Yeah.
JM: … alright? And pick up a … pick up a little sample of … of ah ... of the … of the umm … what do you call it, the chemist own? Because it’s a new type …
IT: Yeah.
JM: … alright? And then just try it that way, ‘cause I don’t want to waste anyone’s time.
IT: Yeah, but look, what’s it say it’s got in it?
JM: It doesn’t say anything on it.
IT: Oh its gotta say something.
JM: No, its got … its got the … the fortieth … its got 40 mill … 40 mill of what you want.
IT: Yeah?
JM: Alright?
IT: [ind … overtalking]?
JM: No.
IT: What about the other one?
JM: Uh … the other one? Or … come … when you come and see me, I’ll talk to ya.
IT: I’ll come up.
JM: Alright?
IT: You at home?
JM: Yeah.
IT: I’ll come up.
JM: Alright mate. See …”

22 The next telephone discussion on which the Crown relies took place the following day on 4 May 2000 at 1:06 pm. Relevantly it records this exchange:

“JM: How ya goin mate? How’d you go?
IT: Oh no good man.
JM: Which one?
IT: Both.
JM: Both’s no good?
IT: No.
JM: What did you … get out of it?
IT: Oh, fuck all.
JM: You real … you for real?
IT: Yeah, they’re not worth buying.
JM: No, I’m just … I’m just asking … that’s why I thought I’d get it before you … you know, get it for you before, you know what I mean?
IT: Yeah.
JM: So … it’s not worth … its … what’s the yield out of it?
IT: Well … what was that?
JM: What … what’s the yield out of it? How much do you get out of it?
IT: Ohh … what do I get to be fuckin’ … fuck all, really.
JM: Yeah?
…
IT: No, it’s … it’s not worth it.
JM: It’s not worth it?
IT: Nah. It’s not worth the drama.
JM: Hmm. Umm … [.. ind…] what about the … the other box of … the box that I gave ya.
IT: Yeah, no, no, no. None of them were no good man.
JM: Sure?
IT: Yeah, positive [laughs]
JM: No I’m just trying to do some … do … you know, get it … get the right ones for you, but if I can get em cheaper for you, it’s better isn’t it?
IT: Yeah. Yeah, well fuck …
JM: That’s what I’m trying, you know what I mean?
IT: I’m just saying, the fuckin’ … the drama with it, it’s not worth doing it. I couldn’t be fucked.
JM: Is it too … is it too many processes involved?
IT: Yeah.
JM: To get the thirty?
IT: Yeah, you don’t really get that anyway.
JM: You don’t?
IT: No.
JM: What, about twenty?
IT: Yeah.
JM: Well that’s not bad.
IT: Oh it’s not good when fuckin’ … you get triple the amount and fuckin’ … less fuckin’ around.
JM: Is it … well, put it this way … fuckin’ umm … well what … is it … if you weigh it up … if you weigh it up with the percentage wise …
IT: Hmm.
JM: … does it … it works out pretty much the same
IT: No, not really, you’ve gotta fuck around twice as much.
JM: Sorry. Twice as much?
IT: Yeah.
JM: Yeah, well it still … but then you might be getting it cheaper then, see, you know what I mean?”

23 A further telephone discussion took place between the accused and Tesic at 3:42 pm on 4 May 2000. It records, inter alia, the following discussion:

“JM: No I want to talk to ya, because the reason being I was … I happen to have made a fuckin’ boo boo, I’ve called the cunt and the whole lot.
IT: What do you mean?
JM: What do I mean? Because … the things are … that I … that I uh … that I … the bottle that you got first …
IT: Yeah.
JM: … the bottle, right? There’s … there’s actually, umm, thirty. Because the other ones had forty in it.
[ind … overtalking].
JM: [Ind] had thirty, listen …
IT: Yes.
JM: … they had thirty and within a month, your original stuff, alright …
IT: Yeah.
JM: … the original stuff within a month is uh … you have to go to the doctor to get it.
IT: Yeah I know.
JM: No, I’m talking about … you’d have to get a prescription for the … they won’t be able to get it the way like they’re getting it now.
IT: Yeah I know, though, you can always get other ones.
JM: Yeah, but that’s what I’m saying, that’s why … they’re … they’re using these ones.
IT: Yeah, no, they’re … they’re still no good. Look, there’s only thirty in each one, if that’s double the process, and it’s not worth doing it.
…
IT: [ind … overtalking] Yeah, but that’s double the process, it’s not … it’s not worth … trust me, I’ve worked it out, it’s not worth doing it.

JM: Yeah. Well I … well that’s … that’s … that’ll be the only thing that they’ll be able to get late … like at a later stage, that’s … that’s … ‘cause they’re cracking down on everything, you know what I mean?”

24 The grounds of appeal identified in the judge’s certificate relied upon by the appellant contended that his Honour wrongly interpreted sections 6 and 24(1) of the DMT Act and/or that he misapplied the decision of this Court in BD and that upon the evidence before him he wrongly declined to order the stay of proceedings. In the way the matter was developed in oral argument, Mr Gordon’s focus was upon the submission that Judge Norrish was wrong in holding that certain inferences were open on the evidence and not upon the first two contentions.

25 His Honour found that the last date of any conversation between the appellant and Tesic relevant to the charge brought by the Crown was on 12 May 2000. There was evidence that quantities of Sudafed tablets in the process of being dissolved in a solvent were located during the execution of a search warrant at premises at 21 Clarence Street, Belfield on 1 June 2000. Tesic’s fingerprints were found on plastic containers seized during that search. Judge Norrish did not find that the evidence concerning the manufacturing process conducted at the Belfield premises bore any connection to the appellant.

26 His Honour made the following findings after extracting portions of the transcripts of the telephone discussions of 3 and 4 May 2000 which I have set out above in [21] [22] & [23]:

“I have quoted that material at some length simply because it seems to me that the gravamen of the Crown case against the accused looking at the evidence that is reasonably available to it, and truly relevant, is that inferences may be drawn from those conversations in the context of earlier conversations which are recorded, that the accused was endeavouring and had in fact obtained raw material to assist Mr Tesic in the course of undertaking a process that would possibly lead to the manufacture of methylamphetamine at a future time.
To my mind the evidence was capable of a number of constructions. Firstly, the process to which I have just referred may have been a process of experimentation out of which there may have been some possible use in the future for the purposes of the production of methylamphetamine.
Alternatively, the conversations are capable of establishing, at least by inference, if not directly, that the accused and Mr Tesic were involved in discussions about a trial and error process directly included within a process of manufacture for the purposes of producing at the end of the process methylamphetamine.” (Judgment p 19-20).

27 In Mr Gordon’s submission an analysis of the telephone discussions upon which the Crown relies is not capable of establishing more than that the appellant was a participant in a process involving the determination of how much pseudoephedrine might be extracted from various commercial products. Any process of manufacturing methylamphetamine could not be said to have commenced.

28 Allied to the above submission was the contention that there was no evidence from which an inference might be drawn as to a continuing process of manufacture of methylamphetamine, as distinct from the assembly of ingredients preparatory to the manufacture of methylamphetamine. Indeed, it was Mr Gordon’s submission that there was no evidence that Tesic was taking part in any process of manufacturing methylamphetamine (as distinct from experimenting with precursors).

29 As to this latter submission Mr Gordon’s attention was directed during the course of submissions to his Honour’s finding:

“… there is evidence of the man, Tesic, referring to the activities of other people, or at least one other person, consistent with the manufacture of methylamphetamine, at least at a prime facie level” (judgment p 14).

30 At the commencement of the hearing of this appeal the Court raised with counsel the circumstance that the appeal papers did not include all the material which was before Judge Norrish. We were informed that in evidence before his Honour was a folder containing transcripts of telephone conversations between the appellant and Tesic covering the period particularised in count one of the indictment. Our appeal books contained only the transcripts of the telephone conversations of 3 May 2000 recorded at 6.01pm and 4 May 2000 recorded at 1.06 pm and 3.42pm. It appeared that his Honour, in [29] above, was referring to the contents of telephone conversations between the appellant and Tesic during the whole of the period limited by count one. Mr Gordon conceded that on the evidence before Judge Norrish it had been open to him to conclude at a prima facie level that Tesic was involved in a process of manufacture of methylamphetamine in the period particularised in the first count of the indictment (T. 7).

31 In Mr Gordon’s submission there was no evidence that any drug supplied by the appellant to Tesic was in fact used in the manufacture of methylamphetamine. Generally it was his contention that the evidence went no further than to admit of the inference that the appellant supplied Sudafed or like products for testing.

32 The Crown Prosecutor relied on the contents of an electronically recorded interview between the appellant and Detective Senior Constable Jones conducted on 1 June 2000. In the course of that interview the appellant acknowledged that he was acquainted with Tesic. He conceded that certain of his telephone discussions with Tesic concerned arrangements for him to supply Tesic with Sudafed tablets. The appellant said that he had not, in fact, supplied Sudafed tablets on any occasion. As Judge Norrish found, the answers given by the appellant in the interview are capable of establishing his knowledge that pseudoephedrine might be extracted from Sudafed tablets and used in connection with the manufacture of methylamphetamine.

33 The Crown also relied on passages in the interview in which the appellant admitted to having previously obtained amphetamine from Tesic and to having asked Tesic to supply him with an ounce of amphetamine worth three thousand dollars in January 2000 (Q 132-139 & Q 142). The significance of this material was said to be that it provided a basis from which (together with other evidence) the jury might infer the appellant’s knowledge that the Sudafed supplied by him to Tesic was to be used in the process of manufacturing methylamphetamine.

34 In the Crown Prosecutor’s submission the discussions between the appellant and Tesic were open to a view that the two were engaged in an ongoing process of manufacture of methylamphetamine. The appellant was seeking to obtain the generic equivalent of Sudafed tablets at a cheaper price for use in this connection. In order to understand the import of the conversations it was necessary to have regard to the evidence of Vincent Murtagh, forensic chemist, contained in a statement dated 24 April 2001. Mr Murtagh stated that packets of 90 Sudafed tablets had been phased out at this time because of the abuse of the product. Packets containing 60 tablets were the subject of new restrictions. This material has particular relevance to an understanding of the conversation recorded at 3.42 pm on 4 May 2000.

35 In the Crown’s submission the evidence before Judge Norrish did provide a basis for the finding that the discussions between the appellant and Tesic concerned a trial and error process directly included within a process of manufacture for the purpose of producing at the end of that process methylamphetamine (judgment p 20).

36 Section 6 of the Drug Misuse and Trafficking Act provides:

“For the purposes of this Act and the Regulations, a person takes part in the cultivation or supply of a prohibited plant or the manufacture, production or supply of a prohibited drug if –
(a) the person takes, or participates, in any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply;
(b) the person provides or arranges finance for any step in that process; or
(c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates.”

37 In R v Thomas (1993) 67 A Crim R 308 at 310 Gleeson CJ observed:

“It is to be noted at the outset that the concept of taking a step in the process of manufacture appears, in s 6 of the Act, in a context which manifests a legislative intention that is inconsistent with any narrow or pedantic approach to the description of activities connected with bringing prohibited drugs into existence, (b) and (c) of s 6 demonstrate that.”

38 In Thomas the appellant was in possession of a substantial quantity of phenyl-2-propene (P-2-P). He had produced the P-2-P in his laboratory. The submission advanced in Thomas before this Court was that even if the Crown established that the appellant produced the P-2-P with a view to manufacturing methylamphetamine his conduct was merely preparatory to that process and not a step in the process. Gleeson CJ rejected the proposition noting:

“Where, as the Crown alleged to be the case here, a person manufactures something with a view to going on to use it in the manufacture of a desired end product then it is normally proper to regard that as a step in the process of manufacturing the end product (at 311)”.

39 Both before the primary judge and in this Court the appellant sought to draw comfort from the decision of this Court in BD. The respondent in that case had been found in possession of a quantity of Sudafed, phosphorous powder and orthophosphoric acid and chemistry glassware. This material was located by police in a search of the boot of the respondent’s motor vehicle. In that case I held (in a judgment with which Stein JA and Greg James J agreed):

“The Crown submitted that Judge Graham erred in that he construed the terms of s 6 of the Act restrictively. I do not agree. I consider there is force to his Honour’s observation:
The statute does not refer to acts ‘leading to, preparatory to or with a view to’ the process of manufacture. The words of the statute themselves, in s 6, refer to taking or participating in any step or causing any step to be taken in the process of that manufacture (emphasis supplied) (ROS pp 7-8)”.
To my mind the acquisition and/or the transport of chemicals or equipment do not, without more, constitute steps in the process of manufacture.”

40 Judge Norrish approached the determination of the application upon this basis:

“But in my view if the evidence is capable of establishing that the accused provided Sudafed or some other drug to another person, in the knowledge that there was a process in course, either by way of experimentation or trial and error, with the intention that the material he was supplying would or could in due course lead to the production of methylamphetamine, then there is a prima facie case for the accused to answer.
…..
In my view what the Crown would need to establish is knowledge on the part of the accused of a contemporaneous process, which was part of a process of manufacture, and for that the Crown would have to establish that the accused had the relevant intention that he was providing the Sudafed or other related drug for the purposes of that process of manufacture (judgment pp.22,-23 & 24)”

41 I consider that his Honour was right to distinguish this case from BD upon the basis that the evidence was capable of establishing that the appellant was supplying Sudafed (or its generic equivalent) in the knowledge that Tesic and/or his associates were engaged in a process of manufacture intended to produce methylamphetamine. This is consistent with Thomas. I reject the challenge that his Honour wrongly interpreted sections 6 and 24(1) of the DMT Act.

42 Judge Norrish found that the evidence allowed of the inference that there was an ongoing process of manufacture of methylamphetamine as at 3 and 4 May 2000. His Honour considered that the evidence was capable of establishing both the supply of Sudafed tablets together with the requisite knowledge on the part of the appellant.

43 Taking into account Mr Gordon’s concession referred to at [30] above, and in the light of the evidence before us on the hearing of the appeal, I am not persuaded that his Honour erred in reaching the above conclusions.

44 For these reasons the orders that I propose are:

(i) extend time in which to file the notice of appeal; and

(ii) dismiss the appeal.

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