R v Thomas and Bergin
[2015] SADC 127
•11 September 2015
District Court of South Australia
(Criminal)
R v THOMAS AND BERGIN
[2015] SADC 127
Reasons for Decision of His Honour Judge Slattery
11 September 2015
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSTRUCTION, PARTICULAR CLASSES OF STATUTE - PENAL STATUTES
CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IMPORT-EXPORT OFFENCES
The accused are both charged with the offences of attempting to import, importing and attempting to possess border controlled drugs contrary to s.11.1 and s.307.1(1) of the Criminal Code (Cth) (the Code). Section 314.4(1) of the Code prescribes 155 separate chemicals as border controlled drugs. Section 314.4(2) prescribes other circumstances where a substance constitutes a border controlled drug.
The substances which are the subject of the charges are not listed as border controlled drugs in s.314.4(1) of the Code: whether s.314.4(2) of the Code has application.
The Director of Public Prosecutions (Cth) seeks directions about the legal meaning of the definition of border controlled drugs contained in s.314.4(2)(d)(ii) and (f) of the Code and about the directions to be given to a jury by a trial judge on that matter pursuant to Rule 49 of the District Court Criminal Rules (2006).
Whether an application for directions made pursuant to Rule 49 District Court Criminal Rules (2006) is the appropriate procedure for the determination of the questions raised by the Director; whether the Direction of Public Prosecutions (Cth) was seeking an advisory opinion of the Court.
Held:
1. An application for directions pursuant to Rule 49 of the District Court Criminal Rules (2006) is an appropriate procedure for consideration of an application for determination of the questions of law raised by the Director of Public Prosecutions (Cth).
2. The Court is not being asked to give an advisory opinion.
3. The legal meaning of the definition of a border controlled drug for s.314.4(2)(d)(ii) of the Code turns on the meaning of the word "addition" and that term is to be construed broadly.
4. The legal meaning of the definition of a border controlled drug for s.314.4(2)(f) of the Code depends upon the meaning to be given to the phrase "substance substantially similar in chemical structure" contained therein. In order to make this determination, it is necessary to make a comparison of the molecular structure of two substances and then to decide whether one substance is substantially similar to the other.
5. Directions given by the Court.
6. It is unnecessary to answer paragraph 3 of the application for directions of the Director of Public Prosecutions (Cth).
Criminal Code (Cth) s.11.1, s.300.1, s.300.2, s.307.1(1), s.314.1, s.314.2, s.314.2(a), (b), (c), s.314.3, s.314.4(2)(d)(i), (ii) & (iii), s.314.4(2)(f); District Court Criminal Rules r.49; Acts Interpretation Act (Cth) s.15AA, s.15AB, referred to.
R v McEwen & Ors (1998) 99 A Crim R 421; Daley v Tasmania [2012] TASCCA 4; R (Cth) v Daniel Barber unreported decision 18 June 2015; Yager v The Queen (1977) 139 CLR 28; Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; O'Toole v Charles David Pty Ltd (1990) 171 CLR 232; Minister for Works (WA) v Civil and Civic Pty Ltd (1967) 116 CLR 273; DPP v JM (2013) 250 CLR 135; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 1914 CLR 335; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; ICAC (NSW) v Cunneen [2015] 89 ALJR 475, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"a substance substantially similar in chemical structure", "structural modification obtained by... addition"
R v THOMAS AND BERGIN
[2015] SADC 127Introduction
The Commonwealth has charged the accused with the offences of attempting to import, and attempting to possess border controlled drugs contrary to s.11.1 and s.307.1(1) of the Criminal Code (Cth). The two alleged border controlled drugs are more commonly described as α-PVP and MPPP. In this application the Commonwealth DPP seek orders and directions pursuant to Rule 49 of the District Court Criminal Rules (2006) for a determination of questions of law about the legal meanings of the definitions of border controlled drugs in s.314.4(2)(d)(ii) and s.314.4(2)(f) of the Criminal Code. The Commonwealth DPP also asks the Court to specify the legal directions to be given to a jury about the definition of a border controlled drug.
This application requires a consideration of the content of the particular sections of the Code. Part and parcel of those considerations is a determination whether particular terms within the sections are to be construed broadly or narrowly. And dependent upon that determination, consideration may be given to the content of the directions to be given to the jury.
For the reasons set out hereunder, the statute should be read broadly and not narrowly and a jury should be accordingly directed by the trial judge.
The charges
The two accused are both charged on Information of the Commonwealth Director of Public Prosecutions in the following terms:
BRUCE ANDREW THOMAS
Is charged with the following offence
COUNT 1
Attempt to import a border controlled drug; contrary to sections 11.1 and 307.1(1) of the Criminal Code (Cth).
PARTICULARS OF OFFENCE
Between about the 22nd day of July 2012 and about the 11th day of January 2013 at Murray Bridge or elsewhere in the State of South Australia, Bruce Andrew Thomas did attempt to import a substance, the substance being a border controlled drug, namely alpha-pyrrolidinopentiophenone (also known as alpha-Pyrrolidinovalerophenone or α-PVP), by mail from China.
COUNT 2
Import a border controlled drug; contrary to section 307.1(1) of the Criminal Code (Cth).
PARTICULARS OF OFFENCE
Between about the 14th day of December 2012 and about the 3rd day of April 2013 at Murray Bridge or elsewhere in the State of South Australia, Bruce Andrew Thomas did import a substance, the substance being a border controlled drug, namely alpha-pyrrolidinopentiophenone (also known as alpha-Pyrrolidinovalerophenone or α-PVP), in a parcel as set out below:
a. A parcel from China addressed to Mark BERG, 27 John Street, PORT PIRIE, SOUTH AUSTRALIA 5540.
COUNT 3
Import a border controlled drug; contrary to section 307.1(1) of the Criminal Code (Cth).
PARTICULARS OF OFFENCE
Between about the 19th day of October 2012 and about the 13th day of January 2013 at Murray Bridge or elsewhere in the State of South Australia, Bruce Andrew Thomas did import a substance, the substance being a border controlled drug, namely alpha-pyrrolidinopentiophenone (also known as alpha-Pyrrolidinovalerophenone or α-PVP), in a parcel as set out below:
a. A parcel from China addressed to Harry TALBOT, PO Box 232, DRY CREEK, SOUTH AUSTRALIA 5094.
COUNT 4
Import a border controlled drug; contrary to section 307.1(1) of the Criminal Code (Cth).
PARTICULARS OF OFFENCE
Between about the 19th day of October 2012 and about the 7th day of April 2013 at Murray Bridge or elsewhere in the State of South Australia, Bruce Andrew Thomas did import a substance, the substance being a border controlled drug, namely alpha-pyrrolidinopentiophenone (also known as alpha-Pyrrolidinovalerophenone or α-PVP), and 4-methyl-alpha-pyrrolidinopentiophenone (also known as MPPP), in two parcels as set out below:
a. A parcel from China addressed to Rosa Natasha FAMIGLIETTI, 34 Pfitzner Close, MURRAY BRIDGE, SOUTH AUSTRALIA 5253.
b. A parcel from China addressed to Jennifer CRAWFORD, 16 Talinga Avenue, KILBURN, SOUTH AUSTRALIA 5084.
COUNT 5
Attempt to import a border controlled drug; contrary to sections 11.1 and 307.1(1) of the Criminal Code (Cth).
PARTICULARS OF OFFENCE
Between about the 18th day of April 2012 and about the 1st day of May 2012 at Murray Bridge or elsewhere in the State of South Australia, Bruce Andrew Thomas did attempt to import a substance, the substance being a border controlled drug, namely alpha-pyrrolidinopentiophenone (also known as alpha-Pyrrolidinovalerophenone or α-PVP), in a parcel as set out below:
a. A parcel from China addressed to Bruce THOMAS, 1 Derwent Avenue, Murray Bridge, SA 5253.
MICHAEL ASHLEY BERGIN
Is charged with the following offence
COUNT 6
Attempt to possess a substance unlawfully imported, the substance being a border controlled drug contrary to sections 307.1(1) and 11.1 and of the Criminal Code 1995 (Cth).
PARTICULARS OF OFFENCE
Between about the 11th day of January 2013 and about the 16th day of January 2013 in South Australia, Michael Bergin attempted to possess a substance that was unlawfully imported, the substance being a border controlled drug, namely alpha-pyrrolidinovalerophenone, an analogue of methcathinone in a parcel as set out below:
a. A parcel from China addressed to Mark BERG, 27 John Street, PORT PIRIE, SOUTH AUSTRALIA 5540.
By Application for Directions dated 8 May 2015, the Commonwealth Director of Public Prosecutions (the Director) sought the following Orders or Directions under Rule 49(1)(h) of the District Court Criminal Rules (2006):[1]
[1] Rule 49—Written application
(1) An application—
…
(h) to determine before trial any question relating to the admissibility of evidence or any other question of law affecting the conduct of the trial (a preliminary question).
APPLICATION FOR DIRECTIONS
The Commonwealth Director of Public Prosecutions seeks the following Orders or Directions:
That the learned trial Judge determine the questions of law set out below, in the context of the charges laid against the accused and the following provisions of section 314.4(2) of the Criminal Code (Cth):
A substance is also a border controlled drug if the substance (the drug analogue) is, in relation to a border controlled drug listed in subsection (1)…:
…
(d) a structural modification obtained by the addition of one or more of the following groups:
…
(ii) alkyl… groups with up to 6 carbon atoms in the group, where the group is attached to… nitrogen… or carbon;
…
(f) otherwise a… substance substantially similar in chemical structure;
However obtained, except where the drug analogue is separately listed in subsection (1).
1. What is the legal meaning of the definition of a border controlled drug contained in section 314.4(2)(d)(ii) of the Criminal Code, as set out above? In particular:
1.1 What is the legal meaning of the words “structural modification obtained by the addition of one or more of the following groups”?
2. What is the legal meaning of the definition of a border controlled drug contained in section 314.4(2)(f) of the Criminal Code, as set out above? In particular:
2.1 What is the legal meaning of the words “a substance substantially similar in chemical structure”?
3. What are the legal directions that will be given to the jury with respect to the definition of a border controlled drug contained in section 314.4(2) of the Criminal Code?
Grounds
The grounds relied upon are as follows:
1. The Commonwealth Director of Public Prosecutions (the Director) has charged the accused with offences that are alleged to have involved substances that were border controlled drugs because they were drug analogues of methcathinone.
2. The Director alleges the substances were border controlled drugs because of the effect of the definition of section 314.4(2) of the Criminal Code.
3. The provisions in section 314.4(2) of the Criminal Code have not been the subject of previous judicial interpretation.
4. Whether the evidence the Director intends to tender at the trial will prove the offences charged depends, inter alia, upon the legal meaning of section 314.4(2) of the Criminal Code.
5. It is expedient for the legal meaning of the relevant provisions in section 314.4(2) of the Criminal Code to be determined prior to the commencement of the trial.
I heard argument on this application on 13 and 14 July 2015. The accused had raised no objection to the procedure adopted by the Director in this application.
At the outset, I raised with Counsel for the Director concerns that I had about the nature of the application and whether the Court was being asked to provide an advisory opinion on matters that ordinarily may be described as jury questions.[2] My concern was that any view that I formed must be based upon a concrete factual situation and would consequently amount to a binding decision raising a res judicata between the parties.
[2] Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 303-304; O’Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 243; Minister for Works (WA) v Civil and Civic Pty Ltd (1967) 116 CLR 273 at 283; DPP v JM (2013) 250 CLR 135 at 144.
The submissions of the Commonwealth were that, based on the authorities of R v McEwen & Ors (1998) 99 A Crim R 421; Daley v Tasmania [2012] TASCCA 4 and the judgment of Judge Woods QC in R (Cth) v Daniel Barber,[3] the procedure adopted by the Commonwealth was appropriate.
[3] Unreported decision, 18 June 2015.
McEwen concerned, in part, the operation of s.24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). That section created an offence of knowingly taking part in the production or the manufacture of an amount of a prohibited drug which was specified in Schedule 1 to that Act. That Schedule included (the drug):
2.5 Dimethoxy-4 methylamphetamine and other substances structurally derived from methoxyphenylethylamine being those substances having hallucinogenic properties.
One of the issues for decision in McEwen was the meaning of the expression “other substances structurally derived from…” within Schedule 1. At trial, expert evidence was called on the topic of what the words in this section (the drugs) meant as well as what was meant by the expression “structurally derived”. This was important because the drug which was the subject of the charge was a derivative called “Nexus”. That drug was only later added to the list in the Schedule.
The trial Judge gave a direction to the jury that the expression “structurally derived” was concerned with “structural derivation in a theoretical or structural sense and was not limited in any practical sense, as a chemist producing substances would be”. The directions of the trial Judge were that the counts with which the accused was charged raised two issues for determination: whether the drug was structurally derived from the named precursor drug and whether that drug had particular properties. At trial expert evidence was given on these issues.
In the Court of Criminal Appeal, Smart J explained the position (about the giving of expert evidence on these issues) at pages 428 and following:
Expert evidence was needed to explain what these words meant. It was critical to know what the words “structurally derived” meant. In the long list of prohibited drugs these words are used but once and that is in the entry quoted, being the one with which these counts are concerned. There was a further complication in that in relation to some of the other prohibited drugs a drug was specified and these words were added “and its derivatives being those derivatives having hallucinogenic properties.” This clause was used after specifying the drugs bufotenine, NN dimethyltrypamine, lysergic acid, lysergide, psilocin and psilocylin.
It is apparent from reading through the list in Schedule 1 that the legislature was at pains to prohibit derivatives of nominated drugs where those derivatives have hallucinogenic properties. Drugs having hallucinogenic properties are targeted.
There are two other drugs where derivatives are prohibited. Those entries are:
Ecgonine, its esters and derivatives which are convertible to ecgonine and cocaine
and
6 monoacetylmorphine and other acetylated derivatives of morphine
These derivatives are viewed as being prohibited drugs.
The meaning of the words structurally derived has to be determined not only in the immediate context in which they are used but in the light of the terms of Schedule 1 taken as a whole and the purposes of the Act.
In McEwen, one of the defendants made an application at trial, for a stay of the prosecution and at page 430, Smart J summarised the reasons for rejecting this application as follows:
The Judge rejected the application. The jury would not be asked to resolve any question of law. It would decide questions of fact including those which were disputed, even if technical and complex. The jury would, so far as relevant, weigh up any competing scientific theories and reach a decision applying the principle of proof beyond reasonable doubt. Evidence based on training, study and reading the literature frequently involves an “element” of hearsay but is admissible. The Judge stated that he proposed to direct the jury that they must be satisfied beyond reasonable doubt that the accused and each of them knew or believed that the subject drug was a prohibited drug or was aware that there was a significant or real chance that it was.
Smart J then compared the evidence given by the experts called in the trial: Professor Johnston for the prosecution and Dr Shulgin and Mr Turner for the defence. At page 434 Smart J concluded as follows:
Dr Shulgin’s approach in structural derivation had an inherent difficulty. In effect he treated the word “structurally” as surplusage. Mr Turner appeared to do likewise. They assimilated the words “derived”, “chemically derived” and “structurally derived”. Emphasis was placed on being able to obtain, in a practical way without difficulty, one compound from another. On the approach of Dr Shulgin and Mr Turner (the word) “structurally” has no work to do. Effect should be given to every word used in a statute or statutory instrument unless there is some good reason not to do so, for example, the meaning produced may be absurd or the word may have been added for more abundant caution.
The legislature has used “structurally derived” once in the Schedule to the Act and in other places has used “derivative” and not “structural derivatives”. Professor Johnston’s approach gives effect to all the words used in the Schedule.
If the legislature had used the phrase “and other substances derived from methoxyphenylethylamine” the contentions of Dr Shulgin and Mr Turner would have had greater force. The provision is an embracing and an extending one controlled by the requirements of structural derivation.
Smart J held that the trial Judge had correctly explained to the jury that the issue of fact for its determination was whether “Nexus” was structurally derived from the precursor. Having agreed with that proposition (i.e. that the question of whether a chemical was structurally derived from another chemical was a question of fact), Smart J agreed with the directions given by the trial Judge reproduced (at page 435) as follows:
It is important to recognise that the phrase used in that part of the Schedule which defines what are prohibited drugs for the purposes of the law of this State is not “derived” nor indeed “chemically derived”, but “structurally derived”. That is the important phrase.
There is a rule of law and I so direct you that when Parliament uses an expression like this in an Act of Parliament we are not at liberty to treat one or more of the words used as superfluous or insignificant. We must proceed on the basis that at least prima facie all words in a statute such as these have some meaning and they are to be given some effect. I also direct you as a matter of law that the Crown does not have to prove that Nexus was in fact made from, in any practical sense, methoxyphenylethylamine. It does not have to prove that at all. Indeed, you may think in this case as demonstrated that the Nexus involved was not made from methoxyphenylethylamine nor indeed is it a requirement that the Crown prove that Nexus was manufactured by any particular method.
I direct you further as a matter of law that what is being referred to here in this part of the Schedule of the Drug Misuse and Trafficking Act so far as the expression “structurally derived” is concerned is a structural derivation of drugs including Nexus from methoxyphenylethylamine not limited in any practical sense as was referred to by Mr Turner and you may think by Dr Shulgin as a chemist producing substances in a laboratory but in a theoretical or structural sense.
Smart J summarised the position at pages 437-438 as follows:
The words “structurally derived” in the clause “and other substances structurally derived from methoxyphenylethylamine” need expert evidence in explanation. Without that evidence a court would not understand the issues which could arise.
In Collector of Customs v Agfa-Gevaeri Ltd (1997) 186 CLR 389 at 394-396, the High Court, whilst acknowledging that general expositions of the law were helpful when considering what were questions of law and fact and when evidence was admissible in dealing with the construction or meaning of a particular statutory or regulatory provision, warned against rigidity of approach and trying to lay down propositions or universal application. It was pointed out that such propositions lost much of their utility when the term or phrase is complex. That remark has particular force in the present case.
Nevertheless, there are some principles which are worth noting. In Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137 Jordan CJ said:
(l) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not law... This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence although evidence is receivable as to the meaning of technical terms . . . and the meaning of a technical legal term is a question of law.
(2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact.”
In both prior and subsequent cases it has been accepted that the meaning of a non legal technical term or phrase is a question of fact as to which evidence is admissible: see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Indeed, such evidence is frequently called in customs cases.
The effect of the evidence adduced was to explain the field of discourse in which the phrase “structurally derived” was used. The word “derived” was explained as was the phrase “structurally derived”. The evidence had the effect of pointing up the meaning of that word that phrase in the Schedule to the Statute. The evidence given would not have confused the jury – instead it would have helped them understand and undertake their task.
This discussion identifies a number of matters. The first is that the Court may receive evidence about the meaning of technical terms contained within a statute because, ipso facto, the terms are not to be considered as ordinary English words or phrases. The technical expressions fall within the rubric of technical legal terms. The meaning of such a term is a question of law. A direction may be given to the jury about the meaning of such a technical legal term as a matter of law. The content of that direction may be informed by expert evidence because, without such evidence, as in the words of Smart J (at p.428):
these words would mean relatively little except to those who have a technical or scientific knowledge of drugs, their composition, production and manufacture. The words would have a meaning for a chemist, a pharmacologist or a medical practitioner who is familiar with the field of discourse.
The other members of the Court agreed with the decision of Smart J.
In Daley & Anor. v Tasmania[4] the Court of Criminal Appeal of Tasmania considered an appeal from a decision of Crawford CJ as the trial judge who gave directions[5] to a jury that it was open to a jury to determine whether one drug was the derivative of another for s.12(1), Part 1 of Schedule 1 of the Misuse of Drugs Act (TAS) and whether the drug was consequently a controlled substance. The Court of Criminal Appeal was satisfied that the construction of Clause 1(c) of Schedule 1 of the Act was a question of law. The issue before the Court turned on the question of the meaning of the expression “derivative”. In so finding, the Tasmanian Court of Criminal Appeal approached the issue in the same way as the New South Wales Court of Criminal Appeal in McEwen and applied Yager v The Queen.[6]
[4] [2012] TASCCA 4; 21 Tas R 247.
[5] This direction accorded with the decision of Evans J on a voir dire hearing.
[6] (1977) 139 CLR 28.
At first instance, Evans J (on the voir dire hearing) received expert evidence on the molecular structure of the two chemicals, how theoretically they could be created and how the discipline of chemistry views what are commonly called derivatives and those described as analogues. Evans J also took into account dictionary definitions of the word “derivative” when used in the context of chemical compounds, the history of the legislation and the application of s.8A of the Tasmanian Acts Interpretation Act 1931 which may be viewed as the equivalent of s.15AA of the Acts Interpretation Act (Cth).[7]
[7] Section 15AA.
Interpretation best achieving Act's purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
The Tasmanian Court of Criminal Appeal agreed with the decision of Evans J (on the voir dire) and Crawford CJ (the trial Judge) that a broad interpretation of the word “derivative” should be used. This included that Parliament:
…was seeking to promote the objective of prohibiting the misuse of drugs by prohibiting activities not just in relation to the substances enumerated in the relevant Schedule, but to all sorts of similar substances, including salts, esters, ethers and derivatives. It follows that a wide interpretation of the word “derivative” would promote the purpose or object of the Act, whereas a narrow construction would not. It is possible that some analogues of some controlled drugs might be harmless but, in our view, that possibility does not detract from that conclusion.[8]
[8] The approach of the Tasmanian Court of Criminal Appeal is consistent with the decision of the New South Wales Court of Criminal Appeal in McEwen.
In the New South Wales District Court Criminal Division, Judge G.D. Woods QC in R (Cth) v David Archer Barber[9] has handed down judgment on a matter that factually deals with the same issues before me but in the context of an application by Barber for a reversal of the plea of guilty entered by him in the Court. His Honour refused the application. I have closely read his Honour’s decision and though it is not binding on me, it is persuasive. I respectfully agree with his Honour’s conclusions.
[9] Unreported decision, 18 June 2015.
Following my consideration of the decisions in McEwen, Daley and Barber, I have formed the view that the issue before me gives rise to a question of law and that any view that I have formed in deciding the question before me is a determination of the Court and does not amount to an advisory opinion. I am also of the view that the application made by the Director of Public Prosecutions (Cth) under Rule 49 of the District Court Criminal Rules (2006) is one appropriate method for the determination of this issue.
The Commonwealth Criminal Code
Chapter 9 of the Commonwealth Criminal Code (the Code) deals with dangers to the community and Part 9.1, commencing at Division 300, deals with serious drug offences. The purpose of the division is set out in s.300.1 which at the relevant time of the alleged offending read as follows:
300.1 Purpose
(1) The purpose of this Part is to create offences relating to drug trafficking and to give effect to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna on 20 December 1988 (the TINDAPS Convention ).
(2) Subsection (1) does not limit the legislative powers of the Parliament in relation to this Part.
In s.300.2 of the Code, the expression “border controlled drug” is defined as follows:
Border controlled drug means a substance, other than a growing plant:
(a) listed or described as a border controlled drug in s314.4; or
(b) prescribed by regulations under paragraph 301.3(1)(a); or
(c) specified in a determination under paragraph 301.8(1)((a).
I emphasise that the definition includes the expression “…or described…”.
The same section defines “border controlled precursor” as follows:
Border controlled precursor means a substance (including a growing plant):
(a) listed by a regulation as a border controlled precursor in s314.6; or
(b) prescribed by regulations under s301.4(1); or
(c) specified in a determination under s301.9(1).
Under Division 301, Parliament may prescribe interim regulations and the Minister may make emergency determinations about controlled drugs and plants. Division 302 prescribes offences for trafficking in controlled drugs, contains a prohibition against the commercial cultivation of controlled plants and controlled drugs and pre-trafficking controlled precursors. Division 307 addresses import-export offences and Division 308 deals with possession offences.
Division 314 deals with drugs, plants, precursors and quantities. Section 314.1 lists controlled drugs and quantifies the amount that is sufficient to be described as a trafficable quantity, a marketable quantity and a commercial quantity. Section 314.2 prescribes what constitutes controlled plants and s.314.3 describes what constitutes controlled precursors and the amount defined as a marketable quantity and a commercial quantity (of controlled precursors). That section reads as follows:
314.3 Controlled precursors
(1) The following table lists controlled precursors and sets out quantities:
Controlled precursors and quantities Controlled precursor Marketable quantity
(grams)Commercial quantity
(kilograms)1 Ephedrine 400.0 1.2 2 Ergometrine 0.15 0.006 3 Ergotamine 0.25 0.01 4 Isosafrole 290.0 1.45 5 Lysergic acid 0.075 0.003 6 3,4‑Methylenedioxyphenylacetic acid 300.0 1.5 7 3,4‑Methylenedioxyphenyl‑2‑propanone 150.0 0.75 8 Phenylacetic acid 1,350.0 4.05 8A Phenylpropanolamine 400.0 1.2 9 Phenyl‑2‑propanone 675.0 2.03 10 Piperonal 320.0 1.6 11 Pseudoephedrine 400.0 1.2 12 Safrole 570.0 2.85 (2) A substance is a controlled precursor if the substance is a salt or ester of a precursor listed in the table in subsection (1).
Section 314.4(1) of the Code lists border controlled drugs and quantities; 155 separate border controlled drugs are there set out. The two charges the subject of these relevant charges are not found within the list of 155 border controlled drugs described in s.314.4(1).
Subsection 314.4(2) of the Code[10] is therefore pivotal to the prosecution of both accused, and consequently, the decision that I am required to make in this matter. It reads as follows:
[10] The references hereunder to s.314.4 are all references to the Code. The references to “the Code” will not be repeated.
Section 314.4(2)
(2)A substance is also a border controlled drug if the substance (the drug analogue) is, in relation to a border controlled drug listed in subsection (1) (or a stereoisomer, a structural isomer (with the same constituent groups) or an alkaloid of such a border controlled drug):
(a) a stereoisomer; or
(b) a structural isomer having the same constituent groups; or
(c) an alkaloid; or
(d) a structural modification obtained by the addition of one or more of the following groups:
(i)alkoxy, cyclic diether, acyl, acyloxy, mono‑amino or dialkylamino groups with up to 6 carbon atoms in any alkyl residue;
(ii)alkyl, alkenyl or alkynyl groups with up to 6 carbon atoms in the group, where the group is attached to oxygen (for example, an ester or an ether group), nitrogen, sulphur or carbon;
(iii) halogen, hydroxy, nitro or amino groups; or
(e) a structural modification obtained in one or more of the following ways:
(i)by the replacement of up to 2 carbocyclic or heterocyclic ring structures with different carbocyclic or heterocyclic ring structures;
(ii) by the addition of hydrogen atoms to one or more unsaturated bonds;
(iii)by the replacement of one or more of the groups specified in paragraph (d) with another such group or groups;
(iv) by the conversion of a carboxyl or an ester group into an amide group; or
(f) otherwise a homologue, analogue, chemical derivative or substance substantially similar in chemical structure;
however obtained, except where the drug analogue is separately listed in subsection (1).
The use of the expression “a substance is also…” in the chapeau of this section indicates that Parliament intends to deal with a substance that is not listed in s.314.4(1). The expression “in relation to a border controlled drug” self evidently is a broad form of expression and includes the situation where the substance is relative to a border controlled substance.
A number of questions arise for consideration. For present purposes, the most important are: the meaning of the expression “addition” in s.314.4(2)(d) and how that meaning affects the words found in (i) and (ii); the meaning(s) of the words in s.314.4(2)(f) and in particular the expression “analogue”, “chemical derivative” and “substantially similar” as well as identifying the intention of the legislature by the use of the expression “however obtained”.
Earlier in these reasons, I have summarised the scheme of Chapter 9 of the Code. There are a number of points that require re-emphasis in light of the content of s.314.4(2). In s.300.2 of the Code in the dictionary provision, the definition of a border controlled drug appears to be intentionally broad. It means a substance listed or described as a border controlled drug in s.314.4 (my emphasis). It also includes a substance prescribed by Regulation or specified in a determination for s.301.8(1)(a). Under s.301.8, the Minister may by an emergency determination, by a legislative instrument, determine that a substance is a border controlled drug subject to the requirements of s.301.8(2). It is apparent that this is a significant and broad power.
The border controlled drug may be listed or described in s314.4 and so it appears that Parliament intended that any determination of a particular substance described as a border controlled drug is not to be circumscribed by the name of the substance as it is listed, or by the description of the substance (my emphasis). A description may or may not fall into the list of substances. The intention of Parliament appears to be that broad forms of description are deliberately used so that the legislation is intended to cover substances as they develop over time. It appears to recognise that the process is not static.
Section 15AA of the Acts Interpretation Act (Cth) reads as follows:
SECTION 15AA
Interpretation best achieving Act's purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
The principles that guide the ascertainment of the purpose or object of the Act are now well settled. In its decision in ICAC (NSW) v Cunneen[11] the High Court made particular reference to the need for the maintenance of the unity of the statutory provision. The Acts Interpretation Act (Cth) requires me to identify the ordinary meaning of the words of the text but I must do so in the content of the whole of the Act and having regard to the purpose or object of the Act. I have attempted to set out a consideration of such matters in para [23] et seq of this decision. In Cunneen the plurality referred again to the Court’s decision in Project Blue Sky Inc v Australian Broadcasting Authority[12] on this topic. It is only necessary for me here to repeat what fell from the High Court in Cunneen as follows:
[31] As was said in Project Blue Sky Inc v Australian Broadcasting Authority:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole” …
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. (emphasis added, footnotes omitted).[13]
[11] [2015] 89 ALJR 475 at 483.
[12] (1998) 1914 CLR 335 at 381-392 [69]-[70] per McHugh, Gummow, Kirby and Hayne JJ.
[13] See also Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378 at 389 [24]; Plaintiff S4/2014 v Minister of Immigration and Border Protection (2014 98 ALJR 847 at 855 [42].
Section 15AB of the Acts Interpretation Act (Cth) 1901 relevantly reads as follows:
SECTION 15AB
Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:
(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;
(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted;
(c) any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted;
(d) any treaty or other international agreement that is referred to in the Act;
(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;
(f) the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;
(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and
(h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament.
(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.
In 1990, the Parliament of the Commonwealth of Australia published an explanatory memorandum that related in part, to the amendments now to be found in the Criminal Code. The relevant portion of that memorandum reads as follows:
Drug analogues are structural variations of an existing narcotic substance. The inclusion of a general drug provision in the new schedule will adequately cover newly synthesised drugs…[14]
[14] 1990 the Parliament of the Commonwealth of Australia House of Representatives Customs and Excise Legislation Amendment Bill 1990 explanatory memorandum page 44.
The matters for determination
The matters for determination that arise on this application fall generally into the following issues and questions:
1. Whether the reference to a structural modification obtained by an addition is to be interpreted broadly so that it is meant to be referrable to a comparison of molecular structures of the substance and the border controlled drug and if so whether that substance is any one of those substances described in s.314.4(2)(a), (b) or (c) of that border controlled drug;
2. Whether in ascertaining that the substance is, when compared to a border controlled drug, a structural modification by the addition of the groups in s.314.4(2)(d)(i)(ii) and (iii), the expression addition means an addition reaction or an addition in the structural sense of those matters;
3. Whether for s.314.4(2)(f) the determination of whether the substance compared to the border controlled drug is an “… analogue, chemical derivative or substance substantially similar in chemical structure (however obtained)” requires a comparison of molecular structures rather than a comparison of a chemical process.
These questions largely raise the same issue: whether the words used in the legislation are to be read narrowly and whether a substance must be identifiable by a process of chemical reaction so that the question to be addressed turns on the ascertainment of how particular chemicals may be combined (which is described on the narrow approach); or conversely whether the proper approach is to make a comparison of chemical structures (described as the broad approach) to show how chemicals may be combined.
I have earlier described that the questions for determination in this proceeding arise in relation to two chemicals – α‑PVP and MPPP. It was common ground between the parties that any decision that I make on one of those chemicals would produce a same decision on the other. In the application before me, the principal focus was upon α-PVP. The defendants did not seek to agitate a separate or different set of issues, matters or questions concerning MPPP and I will proceed to make my decision on the basis of both chemicals on the bases as agreed between the parties.
Before considering the evidence it is necessary to state that these are legal questions involved with the interpretation of a Commonwealth Statute. The approach of the Court to that task is that which I have set out above. I am not bound by the expert opinions expressed by persons who are distinguished in the field of chemistry. Such views may well not intersect with the legal task before me. Conversely, I am also guided by the approach of the Court in McEwen that when technical terms are used within statutory provisions the Court may be assisted in its task by the receipt of expert evidence upon the meaning of those technical terms. The task before me is, to an extent, one step further removed. Even so, I think that the process to be adopted is the same. It is for me to ascertain whether in light of the questions to be answered under the directions sought, I am assisted by the expert evidence led by the Director. In order for me to make that decision it is necessary for me to closely analyse both the statutory provisions and the evidence and to then reach any appropriate conclusions.
In the application before me, the Director led evidence from three witnesses: Emeritus Professor Graham Johnston, Dr Michael Joseph Collins and Ms Helen Salouras. Two of those witnesses, Professor Johnston and Dr Collins were cross examined. Each witness provided witness statements that were tendered in evidence.[15]
[15] Exhibits VDP2, VDP5 and VDP6.
Professor Johnston is an Emeritus Professor of Pharmacology and Medicinal Chemistry at the University of Sydney. His field of expertise is organic chemistry, pharmacology and medicinal chemistry. He has studied and worked in those fields for 50 years. His CV is Exhibit VDP1; there was no challenge to the expertise of Professor Johnston.
Professor Johnston informed the Court that the role of a chemist in the manufacture of chemical substances is to achieve the desired result by the simplest chemical procedures possible. That procedure commences with the design of a chemical structure using what he described as a “white board” process. This process involves identifying the appropriate structure chemically and subsequently deciding which are the optimal chemical precursors to be used to obtain that desired structure. This is a process concerned with the chemical structures of the particular chemical precursors. That process, in turn, assumes a knowledge of the chemical structures and an ability to identify the differences in those chemical structures. As I will later explain, the process of comparison assumes a working knowledge of atomic and molecular structures with the result that the focus of the comparison falls upon the differences, if any, in those structures.
Professor Johnston expressed the view that an analogue (as the ordinary meaning of that word suggests) of a substance is one that is closely related to another substance. In order to make a decision about whether a substance is an analogue of another, it is necessary to compare the molecular structures of the two substances. This is a process that occurs on paper or by the white board process as previously described. The focus therefore is upon the comparison of substances said to be analogues by way of comparing their molecular structures. This does not mean that the chemicals may be readily synthesised from one another, but that both may be produced from the same chemical precursors.
In giving evidence, Professor Johnston said that in contrast to the little used expression of an “addition reaction”, amongst chemists, pharmacologists and others, the expression “addition” is a well understood term. It generally means that a particular structure is being considered on a white board and thus consideration is given to the addition of, for example, a methyl group or a methylene dioxy group or another dioxy group to a particular chemical with a known molecular structure. Professor Johnston said that it may be misleading to speak of an addition in a chemical sense because, ordinarily, it is a broad expression that is used in the most general of senses. Professor Johnston used an example: the expression may be seen in the same context as an addition to a house. In so doing, the owner of the house knocks out a wall or a window with the result that the final home that is achieved cannot be measured as the sum of the original parts. That is because in undertaking the addition, something is lost in the process.
Professor Johnston said that in contradistinction, an “addition reaction” is a structural modification of a chemical by the addition of one or more chemical groups but in that combination no atoms such as carbon or hydrogen are lost. The product of an addition reaction would constitute the combination in the purest sense because nothing would be lost in the combination.
When discussing an “addition”, chemists generally are speaking of chemical structures and the addition of what may be described as a reagent. Structural modifications are also done with chemical groups and not merely chemicals. In assessing an addition of a chemical group, there will generally always be a loss of a part of the reagent being added. For example, if the addition to a chemical structure being considered is an alkyl, that generally will be found attached to a chloride. Chemists will know intuitively that the chloride will very often be lost in the addition.
There are also a number of features of this process of “addition” to a chemical structure that must be understood. In the process of what is described as the “white board” consideration, chemists do not commonly include a description of every atom or molecule in the structure. The process is more inclined towards a focus upon the addition itself and that the balance of the structure is not described or displayed in any details. An example is Exhibit VDP4 which displays methcathione and α-PVP in a standard short hand structure and then as a comparison including all of the atoms and molecules involved. Chemists generally use the short hand structure when discussing additions. This is because chemists actually and intuitively know the atoms that are present and those that are lost in the addition process. That is the skill of the chemist.
A second feature is that in giving consideration to matters on a white board, a chemist would rarely write up all of the references to, for example, hydrogen atoms because the loss of those hydrogen atoms is something that is taken for granted. Professor Johnston described them as being part of a trivial aspect of considerations here that are ignored.[16] He said that the loss of such atoms is taken for granted. Exhibit VDP4 discloses the amount of information that would be required if the whole detail of the chemical was disclosed, compared to the usual process employed by chemists. The same Exhibit displays graphically the comparison of chemical structures on a white board basis. This process is simpler and less detailed because the chemist using such a process of comparison of chemical structures does not need to continually restate the existence of atoms and molecules that are part and parcel of the chemist’s usual working knowledge.
[16] T23.
A third feature is that in considering s.314.4(2)(d), there is no feasible way of adding, for example, a cyclic diether in a reaction. The process required is complicated and difficult. In order to achieve a chemical reaction involving a cyclic diether, it would always be necessary to lose the atoms of the chemicals to which such a diether may be attached. That process is not an “addition reaction” process because, in that process, two chemicals are combined but without the loss of any atoms of the two constituent chemicals.
Similarly, when addressing s.314.4(2)(e), and the reference to a structural modification, Professor Johnston opined that this expression is used in a broad sense. A replacement of a ring structure is something that can be described on a white board but it is a process that is quite difficult to bring about as it is not simply a matter of replacing ring structures in the ordinary course of things. So when considering such a process, it is also necessary to consider the use of any number of precursors in order to achieve a result. It is not possible to convert one ring structure to another. That is a process that may be proposed on a white board as part of a broader discussion of structures but its practical implementation is much more involved. Thus the concept is a broad one and it is not to be construed narrowly.
Similar considerations are apt when considering s.314.4(2)(e)(iv) and the reference to a “conversion (of a) carboxyl or an ester group into an amide group”. Professor Johnston said that the focus is not upon the conversion of one thing into another when speaking of a “conversion reaction”. He gave the example of making chemical (A) into chemical (B). But the expression “conversion” is rarely used in a white board discussion. This is because the focus is upon the structural similarities between (A) and (B) and not the process of how you would get from chemical (A) to chemical (B). Thus a discussion about replacement of ring structures will be familiar to a chemist using a white board process. In the view of Professor Johnston, this is the process envisaged in s.314.4(2)(e).
When considering s.314.4(2)(f), Professor Johnston said that a homologue is a group of chemicals that represents a progression. As an example, consider methanol, ethanol and propenyl which are differentiated by 1, 2 and then 3 carbon atoms. The addition of a carbon atom creates a new homologue.
The term analogue is used to describe the structural similarities between chemicals. There are variations and gradients but generally it is necessary for there to be some close relation between the structures in order for them to be described as analogues. That process of comparison is something that may occur in a white board process but intuitively, a chemist can create a mental picture of a structure in two and then three dimensions. Similarly, derivatisation occurs because substances are very similar: usually it is a one-step conversion from one substance to another, the second substance becoming the derivative of the first.
The concept of what may be described as ‘substantially similar in chemical structure’ to another chemical is susceptible of the same approach although some subjective value judgments may be involved. Professor Johnston gave evidence[17] that the correct approach is to assess the structures as a whole and he considered that properly construed the question becomes: at what level is similarity to be measured? Having considered the question in a number of contexts, Professor Johnston said that if two thirds of the molecules of each substance can be superimposed so that they are in exactly the same space then the two substances may be said to be substantially similar. The expression of that opinion is concerned with the position of the atoms and their nature. As an example, Professor Johnston referred to exhibit VDP 4 which discloses a comparison of methcathinone in a standard shorthand structure, α-PVP in a standard shorthand structure and then both including all of the atoms in their separate structures. The shorthand structure is in that form because it largely ignores non-essential hydrogen atoms. This shorthand method is the way that a chemist would usually draw the molecular structure of the two substances. Professor Johnston explained that α-PVP is obtained by the addition of two carbon alkyl groups attached to a carbon in the methcathinone structure. The alkyl is either a CH2 or a CH3 (a methyl or a methylene) that is added. In the process, a hydrogen atom is lost, that atom having been formerly attached to the nitrogen. The three carbon alkyl group is then attached to the nitrogen and in that process, the two hydrogen atoms are lost from CH3 as well as from the nitrogen.
[17] T30.
Professor Johnston said that a comparison of the two structures discloses five carbon atoms have been added to the structure (viz s.314.4(d)(ii)). Professor Johnston opined that as the chemical formula differs by the addition of five carbon atoms, α-PVP is a drug analogue of methcathinone as they are analogous and substantially similar in chemical structure (viz s.314.4(2)(d) and (f)).
Professor Johnston expressed the opinion that α-PVP is a drug analogue of methcathinone; it is commonly described as a second-generation cathinone. He said that the substance α-PVP has a very similar structure to methcathinone and that the structural formula (set out below) is informative.
At paragraphs 58-61 of his statement (VDP 2) Professor Johnston explained this view when he said the following:
58. α -PVP is very similar in structure to Methcathinone. Methcathinone has a methyl group whereas α-PVP has a propyl group (shown on top right of the structural formula above) and the pyrrolidine ring structure shown at the bottom as formed by a three carbons added to form a ring structure. Thus α-PVP contains 5 extra methylene (CH2) groups over Methcathinone. This is consistent with α -PVP being a “substance substantially similar in chemical structre” to Methcathinone according to the Commonwealth Criminal Code, s.314.4(2f).
59. This also accords with s.314.4(2d): “a structural modification obtained by the addition of one or more of the following groups: (i) alkoxy, cyclic diether, acyl, acyloxy, mono-amino or dialkylamino groups with up to 6 carbon atoms in any alkyl residue; (ii) alkyl, alkenyl or alkynyl groups with up to 6 carbon atoms in the group, where the group is attached to oxygen (for example, an ester or an ether group), nigrogen, sulpur or carbon;”.
60. In the present case α-PVP is obtained by the addition of a two carbon alkyl group (propyl) attached to a carbon and a three carbon alkyl group attached to a nitrogen to form a pyrrolidine ring structure. Essentially a methyl group in Methcathinone has been replaced by a propyl group in α-PVP, and a methylamino group in Methcathinone by a pyrrolidine group in α‑PVP.
61. I have used a pyrrolidine group in preparing an analogue of the neurotransmitter GABA substituting for an amino group (Publication number 49 “Acetylenic analogues of g-aminobutyric acid”, Beart and Johnston, Australian Journal of Chemistry, 1873, 25, 1359-1361). It is a relatively common replacement in preparing analogues of substances containing an amino group.
In cross-examination, Professor Johnston accepted that by making an addition to methcathinone a substance in common use could be produced. An example is the chemical phenylalanine which is an analogue of amphetamine and would be in common use and that substance may be covered under s.314.4(2)(d). Another example of the same type was melatonin. It was suggested by the defendants that the capture of these chemicals in the net of operation of s.314.4(2) was at least one reason why a broad meaning should not be given to the forms of expression in the subsection. Professor Johnston disagreed with this proposition even though he accepted the “capture” of these two chemicals. The same proposition was generally considered by the Tasmanian Court of Criminal Appeal in Daley at paragraph [25] where the court said:
It is possible that some analogues of some controlled drugs might be harmless but in our view that possibility does not detract from the conclusion.
The same process of reasoning applies to substances such as phenylalanine and melatonin by parity of reasoning.
The views expressed by Professor Johnston were similarly expressed by Dr Collins in his evidence and by Ms Salouras in her opinion statement of 25 July 2013 (VDP 6). Professor Johnston concluded that α-PVP is a drug analogue of methcathinone and this conclusion is consistent with the treatment of both of these subsections in scientific literature.
Professor Johnston, Dr Collins and Ms Salouras expressed the same views based largely upon the same process of reasoning and logic and scientific method in respect of the product for methyl-alpha-pyrrolidinopropiophenone (known as MPPP). At paragraphs [57]-[61] of his witness statement VDP 3 dated 30 April 2015, Professor Johnston said as follows:
57. The following structural formula shows a comparison between MPPP and Methcathinone:
58. MPPP is very similar in structure to Methcathinone. MPPP has a methyl group on the lower right on the benzene ring whereas Methcathinone lacks this methyl group and the pyrrolidine ring structure shown at the lower right as formed by a three carbons added to form a ring structure replacing the aminomethyl group. Thus MPPP contains 4 extra methylene (CH2) groups over Methcathinone. This is consistent with MPPP being a “substance substantially similar in chemical structure” to Methcathinone according to the Commonwealth Criminal Code, s.314.4(2f).
59. This also accords with s.314.4(2d): “a structural modification obtained by the addition of one or more of the following groups: (i) alkoxy, cyclic diether, acyl, acyloxy, mono-amino or dialkylamino groups with up to 6 carbon atoms in any alkyl residue; (ii) alkyl, alkenyl or alkynyl groups with up to 6 carbon atoms in the group, where the group is attached to oxygen (for example, an ester or an ether group), nigrogen, sulpur or carbon;”.
60. In the present case MPPP is obtained by the addition of an alkyl group (methyl) attached to a carbone in the benzene ring and a three carbon alkyl group attached to a nitrogen to form a pyrrolidine ring structure.
61. I have used a pyrrolidine group in preparing an analogue of the neurotransmitter GABA substituting for an amino group (Publication number 49 “Acetylenic analogues of g-aminobutyric acid”, Beart and Johnston, Australian Journal of Chemistry, 1873, 25, 1359-1361). It is a relatively common replacement in preparing analogues of substances containing an amino group.
Professor Johnston said that the view that MPPP is a drug analogue of methcathinone for the purposes of the Criminal Code is consistent with scientific literature. The parties did not address MPPP in their submissions and were content for that matter to be resolved on the basis of any findings that I make in relation to α-PVP.
In making my decision, and giving my directions in this matter, I have accepted the viva voce evidence of Professor Johnston and Dr Collins, their witness statements and the witness opinion of Ms Salouras. Professor Johnston and Dr Collins were both cross examined. The defendants did not require Ms Salouras to be presentend for cross examination. Professor Johnston and Mr Collins were not seriously challenged in cross examination.
Decision
The evidence given by the experts reflects the plain commonsense approach that is apparent on the face of the section and also the whole Division of the Criminal Code as I have previously described. I have reached my conclusion having applied the purposive approach to the task of statutory interpretation.
I have earlier also discussed the structure of the Act, its stated purpose, the proposive method of interpretation, the meaning that may be given to the forms of expression in the sub-sections having regard to the Act overall and the dictionary provision of the Act. That dictionary provision in s.300.2 defines a border controlled drug broadly. The substance may be listed in s.314.4(1) or described in s.314.4(2) and includes any drug that may be specified in any determination of the Minister under s.300.8(1)(a). The structure of the Act suggests a broad reading of the forms of expression used in s.314.4(2). Read alone or together, those forms of expression in the same sub-section are, by their nature, of broad import when understood in the background of accepted scientific knowledge and method.
The phrase “addition reaction” has not been used by Parliament in the sub-section. Parliament has chosen to use the word “addition” in the statute. This is the broader form of expression. This approach was favoured by the Courts of Criminal Appeal of New South Wales and Tasmania in their decisions in McEwen and Daley respectively.
The correct approach requires the comparison of the molecular structure of for example, α-PVP and methcathinone. It is not necessary that α-PVP be made from methcathinone through some recognised process of structural modification (with or without the loss of atoms). The content and plain meaning of the section contradicts any such contention because the contents of s.314.4(2)(a)(b) and (c) do not describe any process but are a means of comparing molecular structures. This is because the substance is, in relation to a border controlled drug, a steriosomer or a structural isomer having the same constituent groups as an alkaloid.
Section 314.4(2)(d) refers to a structural modification by an addition of one or more groups as in (i), (ii) and (iii). The word “addition” is to be read broadly and not narrowly. A broad reading of that word facilitates a comparison between the structures of the substance and the border controlled drug - viz s.314.4(c). That comparison should be consistent with an analysis of the structure made on paper or on a whiteboard. I accept the evidence of Professor Johnston that if the word ‘addition’ was to be read down as meaning “addition reaction” then the content of s.314.4(d)(i)(ii)(iii) would be rendered nugatory because those words would be otiose and no meaning would be given to them. This is contrary to the basic tenets of statutory construction.
For the reasons that I have discussed, s.314.4(e) is concerned with structural modifications obtained in one of four ways. That process in turn requires a similar whiteboard approach and is not concerned with what has been described as an “addition reaction”. The structural modifications are referred to generally, and apart from the matters referred to in s.314.4(e)(ii) (which I have also separately addressed above), the process contemplated may involve the loss of atoms in the modification process. Such changes are not usually spelt out because they are part and parcel of the stock of knowledge of any chemist and are intuitively understood and accepted. This approach is not moderated by the fact that Parliament has specified and identified that which maybe replaced and the substance which replaces it. The same approach is applicable to the use of the expression “conversion” in s.314.4(e)(iv) because it is necessary to consider these modifications on paper or on a whiteboard.
Conversely, the achievement of the process contemplated by the structures described on the whiteboard is, in most instances, complex, time consuming, multi-layered and requires a considerable use of precursors and chemicals. It is a process that is well understood. Chemists may intuitively create two and three dimensional models of the structure in their own minds with a focus upon the structural modifications obtained that is based upon a whiteboard assessment not upon a series of chemical reactions using reagents and precursors.
I have already dealt with the fact that in considering s.314.4(2)(e) and (f), some common substances such as phenylalanine and melatonin may fall within the scope of those subparagraphs. The Director submitted that other parts of the Criminal Code, such as s.313.1 and s.10.5 may apply to those common substances such that importation or possession of them would not offend the statute. It is not necessary for me to express the concluded view on that submission. The views expressed by the Tasmanian Court of Criminal Appeal in Daley at [25] are sufficient answer to that submission and I respectfully adopt the same approach.
I address the questions formulated in para 38 hereof and provide the following answers:
1.The reference to a structural modification by an addition is to be interpreted broadly and involves a comparison of the molecular structure of the allegely prohibited imported substance and the border controlled drug described in s.314.4(1) of the Code for the purpose of determining that such substance is described in s.314.4(2)(a)(b) and (c).
2.In order to ascertain if a particular substance is a border controlled drug for s.314.4(2)(d)(i)(ii) and (iii) of the Code by means of a comparison with a border controlled drug described in s.314.4(1) of the Code, an “addition” for s.314.4(2)(d) means an addition in a broad structural sense. The expression “addition” is not to be read narrowly, meaning “addition reaction” because a structural modification, properly understood ordinarily results in the loss of hydrogen or carbon atoms in that process.
3.The determination for s.314.4(2)(f) of the Code whether a substance, when compared to a border controlled drug for s.314.4(1), is an analogue chemical derivative or substance structurally similar in chemical structure of the border controlled drug requires a comparison of the molecular structures of the two chemicals themselves.
I address the application for directions of the Commonwealth DPP.
1.The legal meaning of the definition of a border controlled drug for s.314.4(2)(d)(ii) of the Code turns on the meaning of the word “addition” as contained therein. That term is to be construed broadly rather than in a narrow manner which is restricted to an addition reaction of chemicals or groups of chemicals.
2.The legal meaning of the definition of a border controlled drug for s.314.4(2)(f) of the Code turns on the meaning of the phrase “substance substantially similar in chemical structure” contained therein. In order to be satisfied that the substance is substantially similar in chemical structure (to a border controlled drug) it is necessary to make a comparison of the molecular structure of the two substances and to decide whether one is substantially similar to the other. A decision about that question may involve value judgements such as for example, that there is an identity to the extent of 66 per cent of the molecules of each substance that can be superimposed so that they are in the same sphere. However it is not necessary to show that any one of the substances is produced from the other.
3.It is not necessary to answer para 3 of the application. Any directions to the jury will be dependent upon a number of obvious variables. The directions to the jury by the trial judge will largely follow the decision that I have set out herein. The structure of those directions will generally follow the example set out in McEwen on page 438 which is reproduced in paragraph [15] of this decision.
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