Tasmania v Bourke - [2014] TASSC 38

[2014] TASSC 38

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Bourke [2014] TASSC 38

PARTIES:  STATE OF TASMANIA
  v
  BOURKE, Leigh Mathew

FILE NO:  437/2013
DELIVERED ON:  28 July 2014
DELIVERED AT:  Burnie
HEARING DATE/S:  22, 23, 24 July 2014
JUDGMENT OF:  Pearce J

CATCHWORDS:

Criminal Law – Particular offences – Drug offences – Procedure – Other matters – Proof of evidence – Trafficable quantity – Aggregated trafficable quantity.

Misuse of Drugs Act 2001 (Tas), ss3A, 12(2).
Aust Dig Criminal Law [2475]

REPRESENTATION:

Counsel:
             Appellant:  M S Wilson
             Respondent:  G A Richardson
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Greg Richardson

Judgment Number: [2014] TASSC 38
Number of paragraphs: 15

Serial No 38/2014
File No 437/2013

TASMANIA v LEIGH MATHEW BOURKE

REASONS FOR JUDGMENT PEARCE J

28 July 2014

Leigh Mathew Bourke pleaded not guilty to one count of trafficking in controlled substances contrary to s12(1) of the Misuse of Drugs Act 2001 ("the Act"). The indictment alleged trafficking in methylamphetamine and MDMA. In the course of the trial an issue arose about how the quantity of methylamphetamine was to be determined in calculating whether there was an "aggregated trafficable quantity" of the controlled substances. I ruled that the reverse onus provision in s12(2) of the Act could apply because it was open to the jury to find there was an "aggregated trafficable quantity" of the controlled substances. These are the reasons for that ruling.
In the early hours of the morning on 5 July 2013, Mr Bourke was driving a car that was intercepted by the police in Devonport and searched. The police found a total of 15 capsules or tablets with a total mass, excluding the weight of the capsules themselves, of 3.2 grams of MDMA. The police also found a heat sealed bag containing 24.7 grams of slightly damp tan coloured crystals, later discovered on analysis to contain 60.4% weight by weight methylamphetamine.
The definition of "trafficking" in s3 of the Act includes possessing a controlled substance with the intention of selling it. The term controlled substance is defined in s3 to include a controlled drug. Methylamphetamine and MDMA are both controlled drugs; see the Act, s3, Schedule 1, Part 2, items 172 and 177. It was the Crown case that Mr Bourke possessed the controlled drugs with the intention of selling them. Under s12(2) of the Act, if it is proved that a person charged with trafficking has possession of a trafficable quantity of a controlled substance, the accused then bears the burden of proving on the balance of probabilities that he or she did not have the intention to sell the substance.
Section 12(2) had effect if the Crown proved beyond reasonable doubt that Mr Bourke possessed a "trafficable quantity" of a controlled substance. The Crown contended that Mr Bourke possessed an "aggregated trafficable quantity" of controlled drugs as determined by s3A. Section 3A of the Act is entitled "Meaning of trafficable quantity and determining aggregated trafficable quantity" and provides:
"(1) In this Act —
trafficable quantity, of a controlled substance, means —
(a)in the case of a controlled drug that is not mixed with or contained in any other substance, a quantity of the controlled drug that is not less than the quantity specified in column 3 of the table in Part 2 of Schedule 1 in relation to the controlled drug; and
(b)in the case of a controlled drug that is mixed with or contained in another substance where the combined quantity of the substances is not less than the quantity specified in column 3 of the table in Part 2 of Schedule 1 in relation to the controlled drug, any quantity; and
(c)in the case of a controlled plant, a quantity of the controlled plant that is not less than the quantity specified in column 3 of the table in Part 3 of Schedule 1 in relation to the controlled plant; and
(d)in the case of a controlled precursor, a quantity of the controlled precursor that is not less than the quantity specified in column 3 of the table in Part 4 of Schedule 1 in relation to the controlled precursor; and
(e)in the case of 2 or more controlled substances together, an aggregated trafficable quantity of the controlled substances.
(2) To determine, for the purpose of this Act, whether a quantity of 2 or more controlled substances together constitutes an aggregated trafficable quantity —
(a)the quantity of each of the controlled substances is to be calculated as a fraction of the trafficable quantity of that controlled substance; and
(b)the fractions calculated under paragraph (a) are to be added together; and
(c)the quantity is to be taken to constitute an aggregated trafficable quantity if the total of those fractions so added together is equal to or greater than the number '1'."
In the case of methylamphetamine, the specified trafficable quantity is, in individual packages, 20 packages, and in any other form, 25 grams, and in the case of MDMA, the specified trafficable quantity is 10 grams. Because Mr Bourke had possession of neither controlled drug, taken separately, in a trafficable quantity, he could only have possessed a trafficable quantity of a controlled drug if the aggregation provision in s3A(1)(e) applied.
On the Crown case Mr Bourke had possession of 3.2 grams of MDMA, the trafficable quantity being 10 grams. On the Crown case Mr Bourke also had possession of 24.7 grams of methylamphetamine. If possession of those amounts were accepted by the jury then the provisions of s3A(2) result in the following calculation of the fraction of trafficable quantity for the purposes of determining an aggregated trafficable quantity:
MDMA 3.2 grams/trafficable quantity 10 grams ³²/₁₀₀
Methylamphetamine 24.7 grams/trafficable quantity 25 grams ^98.8/₁₀₀
Total ^130.8/₁₀₀
which is greater than 1 and thus an aggregated trafficable quantity.
Subject to some matters of no consequence for the purpose of these reasons, there was no real issue with the quantity of MDMA used in the Crown's calculation. However an issue arose with the weight of the methylamphetamine to be used in the calculation of the aggregated trafficable quantity. The evidence about the weight and constitution of the substance referred to as methylamphetamine was given at the trial by a forensic scientist, Mr Michael Manthey. Mr Manthey's evidence was that he, in the course of his duty as a forensic scientist at Forensic Science Service Tasmania, received the heat sealed plastic container containing the slightly damp tan coloured crystals for analysis. He weighed the contents at 24.7 grams. He then analysed the contents. His analysis resulted in a finding that the substance he received contained 60.4% weight for weight methylamphetamine, so that in every 100 grams of the substance, there was 60.4 grams of methylamphetamine present. Mr Manthey's evidence was that the substance that he received for analysis also contained water and other substances. He said that pure methylamphetamine is an oil, is very hard to cut or dispense, and so is usually converted to methylamphetamine hydrochloride by treating the methylamphetamine with hydrochloric acid. Thus, a sample of 100% pure methylamphetamine hydrochloride is constituted as 80% methylamphetamine and 20% hydrochloric acid. Methylamphetamine hydrochloride is then often mixed, or "cut", with other substances for various reasons. As to the sample that he received, Mr Manthey's evidence was that there was also another substance present, diamethylsulphate, which is a cutting agent, as well as water, such that the percentage of methylamphetamine in the substance he analysed was reduced to 60.4%.
Section 3A(1)(b) of the Act refers to a circumstance in which a controlled drug is "mixed with or contained in another substance". It provides that if the combined quantity of the substances is not less than the trafficable quantity, then the controlled drug in any quantity constitutes a "trafficable quantity". However, according to a literal reading of its terms, that provision has no application to this case and does not assist the Crown's contention that it was the combined weight of the methylamphetamine and the substances it was mixed with or contained in that was to be used in the calculation of the fraction of the trafficable quantity. That is so because the total weight of the combined quantity of substances was 24.7 grams, less than the trafficable quantity of 25 grams, and s3A(1)(b) has application only when the combined weight exceeds the trafficable quantity. If only the weight of the methylamphetamine itself, 60.4% of 24.7 grams or 14.918, is used, the calculation of the fraction of trafficable quantity for the purposes of determining an aggregated trafficable quantity is as follows:
MDMA 3.2 grams/trafficable quantity 10 grams ³²/₁₀₀
Methylamphetamine 14.919 grams/trafficable quantity 25 grams ^59.676/₁₀₀
Total ^91.676/₁₀₀
If the terms of s3A are so construed, the aggregated quantity of methylamphetamine and MDMA could not result in a fraction that was equal to or greater than the number "1". As a result, there could not be, on the Crown case, an aggregated trafficable quantity of methylamphetamine and MDMA, and the reverse onus provisions in s12(2) of the Act could not have application.
However I concluded that the Act should not be so construed and that it is the total combined weight of the methylamphetamine and the substances with which it was mixed that was to be used in the calculation.
The Act is expressed to be an Act to "prohibit the misuse of drugs and activities associated with the misuse of drugs and for related purposes". Section 3A was inserted by the Misuse of Drugs Amendment Act 2005. It expanded the definition of trafficable quantity to provide for an "aggregated quantity" and inserted subs(2) to provide for how an aggregated trafficable quantity is to be calculated. Thus, relevant to this case, a controlled substance may constitute a trafficable quantity by the weight of the drug alone or "in the case of two or more controlled substances together", by their aggregate weight calculated in accordance with subs(2). I considered the operation of s3A in State of Tasmania v Freeman [2013] TASSC 38 in a different context. In that decision I referred to an extract from the second reading speech of the then Minister, Mrs Jackson, in the House of Assembly on 23 November 2005:
"The Misuse of Drugs Act 2001 has now been in operation for four years. In that time police officers who have been responsible for enforcing it have become aware of areas where the act fails to achieve its stated purpose of prohibiting the use of drugs and activities associated with the misuse of drugs. This bill seeks to correct certain anomalies in the act, to allow for a trafficable quantity to be made up of a combination of different types of drugs …
…
Trafficking charges under the Act are generally based on the possession of a quantity of drugs above a certain stated trafficable quantity. Currently, stated trafficable quantities only apply to a quantity of a single substance. However, drug dealers are opportunists and will buy any controlled substance they can have access to, to sell to their clientele. As a consequence they are often found with a combination of drugs for sale. This is also done deliberately so they possess no single substance in a quantity at or above the trafficable quantity.
The bill amends the act to provide for trafficking charges to be available if a person is in possession of more than an aggregated trafficable quantity. This will prevent drug dealers from escaping trafficking charges by offering a range of substances in quantities just below the trafficable quantities for each individual substance. To find the aggregated trafficable quantity, the amount of each illicit substance is calculated as a percentage of the trafficable quantity for that substance. If the percentages added together come to more than 100 per cent then the aggregated trafficable quantity is reached."
In s3 the term "controlled drug" is defined as "a substance, other than a growing plant, specified or described in Part 2 of Schedule 1". The definition of the term "trafficable quantity" is contained in s3A, set out in full earlier in these reasons. As it applies to a controlled drug it means "the quantity specified in column 3 of the table in Part 2 of Schedule 1". Schedule 1 of the Act is entitled "Controlled substances and trafficable quantities". Part 2 of the Schedule lists the specified controlled drugs and, as to some of the specified controlled drugs, the trafficable quantity of that drug. Reference to "the quantity specified in column 3 of the table in Part 2 of Schedule 1" is made only in s3A(1)(a) and (b) and not in s3A(1)(e). However both s3A(1)(e) and (2) refer to the term trafficable quantity. The reference in those provisions to the trafficable quantity for a particular drug could only be a reference to the trafficable quantity as that term is used in pars(a) and (b) of the definition. Section 3A(1)(e) and (2) necessarily incorporate s3A(1)(a) and (b). Thus, when s3A is read as a whole, the calculation of the "aggregate" for the purposes of par(e) and subs(2) can only be made by reference to the trafficable quantity as defined in pars(a) and (b). It would offend common sense, and in my view the intention of the legislature, were a different method of calculation of weight, and thus fractions of weight, apply according to whether pars(a) and (b) on the one hand, or par(e) on the other hand, operate. I concluded that, on the proper construction of s3A, the calculation of the quantity of a controlled substance for the purposes of s3A(2) includes, as it does in s3A(1)(b), the combined quantity of the controlled drug and any substance it is mixed with or contained in.
My conclusion is reinforced by the Interpretation Provision in Schedule 1 of the Act. The definitions of both "controlled drug" and "trafficable quantity" incorporate reference to Schedule 1. It provides:
"1 In this Schedule —
(a)…
(b)the letter 'S', followed immediately by a number, is a reference to the schedule to the Poisons List having that number; and
(c)a reference to a substance ('the relevant substance') includes —
(i)every salt, active principle or derivative of the relevant substance and every salt of such an active principle or derivative; and
(ii)a preparation or admixture containing any proportion of the relevant substance; and
(iii)every ester or ether of the relevant substance and every salt of such an ester or ether; and
(iv)every substance that is, in relation to the relevant substance, a stereoisomer or structural isomer (with the same constituent groups); and
(v)every substance that is, in relation to a substance referred to in paragraph (iv), a substance of a kind described in paragraph (i), (ii) or (iii); and
(vi)any substance that is otherwise a homologue, analogue or chemical derivative of, or substantially similar in chemical structure to, the relevant substance."
The relevant part extracted, the provision means that a reference in the Schedule to a "substance" includes "a preparation or admixture containing any proportion of the relevant substance". Thus a reference in the Schedule to "methylamphetamine" includes a mixture containing any proportion of methylamphetamine. Applying that provision to this case, the "substance" is the 24.7 grams of substance found in the defendant's possession, including as it did 60.4% weight for weight methylamphetamine. In turn, the term "substance" as defined in the Schedule is incorporated in the definition of "controlled substance" in s3.
The effect of my ruling was that, if the jury was satisfied beyond reasonable doubt of possession of the total quantities of substances asserted by the Crown, then the aggregate quantity of methylamphetamine and MDMA constituted, in this case, an "aggregated trafficable quantity" of controlled substances. The jury was directed accordingly.