Tasmania v Daley and Shipp
[2011] TASSC 43
•23 August 2011
[2011] TASSC 43
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Daley and Shipp [2011] TASSC 43
PARTIES: STATE OF TASMANIA
v
DALEY, Timothy William
SHIPP, Allison Patricia
FILE NO/S: 496/2009
DELIVERED ON: 23 August 2011
DELIVERED AT: Hobart
HEARING DATE: 1, 2 August 2011
JUDGMENT OF: Evans J
CATCHWORDS:
Criminal Law – Particular offences – Drug offences – Identify of prohibited substance – Generally – Meaning of "derivative" - 4-methylmethcathinone a derivative of methcathinone.
Misuse of Drugs Act 2001 (Tas), Pt 2 of Sch 1.
Saraswati v R (1991) 172 CLR 1; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Beckwith v R (1976) 135 CLR 569; Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876; Reid v Kerr (1974) 9 SASR 367; Yager v McQueen (1977) 139 CLR 28; R v McEwen (1998) 99 A Crim R 421, referred to.
Aust Dig Criminal Law [2449]
REPRESENTATION:
Counsel:
State of Tasmania: J P Ransom
First Defendant: J F Pedder
Second Defendant: J Brown
Solicitors:
State of Tasmania: Director of Public Prosecutions
First Defendant: Grant Tucker
Second Defendant: Grant Tucker
Judgment Number: [2011] TASSC 43
Number of paragraphs: 22
Serial No 43/2011
File No 496/2009
STATE OF TASMANIA v TIMOTHY WILLIAM DALEY and
ALLISON PATRICIA SHIPP
REASONS FOR JUDGMENT EVANS J
23 August 2011
The issue before me, as advanced by counsel is whether 4-methylmethcathinone is a derivative of methcathinone for the purposes of the Misuse of Drugs Act 2001 ("the Act"), Sch 1. More accurately, the issue is whether, on the evidence before me, a jury could find that 4-methylmethcathinone is a derivative of methcathinone for the purposes of that Act. Whilst the meaning of the term "derivative" is a question of law, once that meaning is determined, the question whether a particular substance is a derivative is question of fact for a jury.
Pursuant to that Act, s3, a "controlled drug" means a substance, other than a growing plant, specified or described in Pt 2 of Sch 1. Methcathinone is item 161 in Pt 2. Until the day after the conclusion of this hearing, Part 1 of the Schedule relevantly provided:
"1 In this Schedule –
…
(c) a reference to a substance includes –
(i) that substance prepared from natural sources or artificially; and
(ii)every salt, active principle or derivative, including esters and ethers, and every salt of such an active principle or derivative; and
(iii) every alkaloid of the substance and every salt of such an alkaloid; and
(iv)except where the substance is levomethorphan or levorphanol, every stereo-isomer of the substance and every salt of the stereo-isomer; and
(v) a preparation or admixture containing any proportion of the substance."
I have heard evidence from the following experts:
·Dr Michael Manthey, a forensic scientist employed by Forensic Science Service, Tasmania. He has a PhD in organic chemistry.
·Dr Matthew Piggot from the University of Western Australia. He has a PhD in organic chemistry. He specialises in synthetic and medical chemistry and has extensive experience in the synthesis of amphetamines.
·Dr Robert Baker from the University of Sydney. He is a graduate of that university, having obtained a Bachelor of Science with First Class Honours in organic chemistry. He has since obtained a PhD.
From the evidence I conclude that:
(i) In simple form the structures of methcathinone and 4-methylmethcathinone are:
4-methylmethcathinone differs from methcathinone in that the former has a methyl group (H3C-unit) attached to the 4 position of the ring (hence the name 4-methylmethcathinone).
(ii)As suggested by their names, and as can be seen from the above diagrams, there is a great degree of similarity between the chemical structures of methcathinone and 4-methylmethcathinone.
(iii)Whilst in theory 4-methylmethcathinone can be made from methcathinone, this would be an extremely difficult multi-step process involving many stages. The likely means of making 4-methylmethcathinone are from toluene or by commencing with 4-methylpropiophenone.
In order to determine whether 4-methylmethcathinone can be a "derivative" of methcathinone within the meaning of that word as used in par1(c)(ii) in Pt 1 of Sch 1, I must adopt an interpretation of derivative, that promotes the purposes or object of the Act in preference to one that does not promote the purpose or object of the Act, the Acts Interpretation Act 1931, s8A. That provision and s8B of the same Act are in broadly similar terms to the Interpretation Act 1987 (NSW), ss33 and 34. As to the impact of those provisions, the following passage from the decision of McHugh J in Saraswati v R (1991) 172 CLR 1, at 21, is apposite:
"Section 33 of the Interpretation Act directs a court in interpreting a provision in an Act to give preference to a construction 'that would promote the purpose or object underlying the Act' over a construction 'that would not promote that purpose or object': cf Chugg v Pacific Dunlop Ltd. Moreover, the terms of s 34 of that Act, which provides for the use of extrinsic material, make it plain that 'the ordinary meaning conveyed by the text of the provision' is the meaning conveyed by that provision after 'taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule'. Hence, it is always necessary in determining 'the ordinary meaning' of a provision … to have regard to the purpose of the legislation and the context of the provision as well as the literal meaning of the provision. Sometimes the purpose of the legislation is expressly stated; sometimes it can be discerned only by inference after an examination of the legislation as a whole; and sometimes it can be discerned only by reference to the history of the legislation and the state of the law when it was enacted. It need hardly be said that a particular Act may have many purposes.
In many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation. Consequently, it will constitute the 'ordinary meaning' to be applied. "
With regard to the importance of the context of that which is to be interpreted, in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408, Brennan CJ, Dawson, Toohey and Gummow JJ said:
"Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy …"
In my approach to this matter I am conscious of the reduced impact of the former rule that a penal provision should be construed strictly. In Beckwith v R (1976) 135 CLR 569, Gibbs CJ said, at 576:
"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams; Craies on Statute Law, 7th ed (1971), pp 529-534. The rule is perhaps one of last resort."
I have been referred to many definitions of "derivative". A meaning of derivative when used in relation to chemicals that assists the prosecution is: "A substance or compound made from, or structurally related to, another substance or compound". This definition comes from the Macquarie Dictionary online. The same definition has been in the Macquarie Dictionary since at least the revised edition published in 1985. This definition serves the interests of the prosecution, as on the evidence before me there is no dispute that 4-methylmethcathinone is closely structurally related to methcathinone.
The meaning of derivative when used in relation to chemicals that is relied on by the defendants is that contained in the New Shorter Oxford Dictionary: "A compound obtained from another by substitution or other simple process". The same dictionary defines "analogue" when used in relation to chemicals as: "A compound with a molecular structure closely similar to that of another". The defendants contend that the Macquarie Dictionary definition of "derivative" is too broad, insofar as it includes "a substance or compound … structurally related to another substance or compound". They submit that this aspect of the Macquarie Dictionary definition more properly relates to an analogue, and should be so confined, with the result that structural relationship is excluded as a meaning of derivative. On the evidence, no such arbitrary restriction is universally applied to the meaning of derivative when used in the field of organic chemistry. Whilst there is an increasing tendency to distinguish between a derivative and an analogue, the word derivative is still used in this area in published papers and the like (as it was in the evidence before me) to refer to both a substance made from another, and a substance that is structurally related to another.
The Macquarie Dictionary is not alone in giving derivative a meaning which encompasses both the concept of being made from and the concept of being a related structure. Two of the meanings attributed to derivative in Butterworths Medical Dictionary, 2nd ed, London, 1978, are: "3 A compound formed by chemical means from a parent compound: 4 A compound closely related structurally to another compound, but not necessarily prepared from it". Similarly, the online edition of Merriam-Webster's Medical Dictionary gives the following meanings for derivative: "a : a chemical substance related structurally to another substance and theoretically derivable from it b : a substance than can be made from another substance". The evidence is that the same definition appears in that dictionary's, 10th ed, 1993.
In the course of submissions it was asserted that the Macquarie Dictionary did not include a meaning for analogue when used in relation to chemicals and for this reason it was, in effect, contended that its definition of derivative was suspect. That assertion is not strictly correct. The Macquarie Dictionary does include a definition for analogue when used in relation to chemicals, however this meaning is a comparatively recent inclusion. The meanings attributed to analogue when used in relation to chemicals in that dictionary online are: "a. an organic compound that is related to another compound by the substitution of hydrogen atoms with alkyl groups. b. an organic compound that has a similar structure to another compound." A meaning for analogue in the Macquarie International English Dictionary, 2nd ed, 2004, is: "a chemical with a similar structure to another but differing slightly in composition". Another reason advanced by the defendants for confining the meaning of a derivative to a substance made from another and excluding a substance with a related structure from its meaning is that drug control legislation in some Australian jurisdictions draws a distinction between a derivative and an analogue, or otherwise distinguishes between a substance that is made from another substance and a substance that is structurally related to another substance. I derive little assistance from these matters as I must construe the term derivative as used in the legislation under consideration.
Whilst resort to dictionary definitions is a helpful and accepted practice when endeavouring to ascertain the common meaning of a word, "every word must be construed in the context of the legislation in which it appears and in accordance with its purpose", Llewellyn v The Resource Management and Planning Appeal Tribunal (2007) TASSC 21, Underwood CJ, at [36].
With regard to the role of dictionaries and the proposition that in Australia primacy should be given to a definition contained in the Macquarie Dictionary, Rares J said the following in Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876, pars[37] – [40]:
"37 An ordinary and natural meaning in Australian English usage of 'bathe' is 'swim'. It follows that the picture of a person swimming, taken by itself, matches the word 'bathe' on the ticket. Lotteries argued that because the Macquarie Dictionary used the qualification 'chiefly British' in relation to this meaning of 'bathe', I should not make this finding. It contended that I should accord primary regard to that dictionary because in House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at 506 [33 par 3] Mason P had described it as the “most authoritative Australian dictionary” following what Kirby P had said in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd(1991) 25 NSWLR 541 at 553. It also pointed to the methodology that the Macquarie Dictionary stated it had employed, of putting the central meaning of each part of speech first. Lotteries relied on the fact that the 'chiefly British' meaning was the second meaning the Macquarie Dictionary gave for the intransitive usage of 'bathe'.
38 The meaning of a word used in ordinary speech or writing is a question of fact. Dictionaries provide a useful and often important source or aid from which the answer to that question of fact can be determined. However, it is not legitimate to defer to one particular usage in one dictionary as the only meaning for a word. Here, the Macquarie Dictionary, and three others prepared for Australian use, as well as common experience of the use of 'bathe' as a word of ordinary speech, recognise that a natural and ordinary meaning of bathe was 'swim'. ...
39 In a passage quoted with approval by Black CJ, Jacobson and Perram JJ in Polo/Lauren Co LLP v Ziliani Holdings Pty Ltd[2008] FCAFC 195; (2008) 173 FCR 266 at 273 [24] Mason P, with whom Stein and Giles JJA agreed, said (House of Peace 48 NSWLR at 505 [28]):
'A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose.'
40 In Provincial Insurance 25 NSWLR at 560-561, Mahoney JA engaged in a valuable discussion about the use of dictionaries in construing words used in documents and statutes. He observed, and I agree, that dictionaries are not a substitute for the judicial determination of the interpretation and the construction of words used in such instruments: citing Life Insurance Co of Australia Ltd v Phillips[1925] HCA 18; (1925) 36 CLR 60 at 78 per Isaacs J. Mahoney JA also stated that there is no single authoritative dictionary and the Court would improperly restrict itself if it referred to only one dictionary and not another. He went so far as to say that it is '... dangerous, in interpreting or construing a document, to confine attention to a single dictionary': Provincial Insurance 25 NSWLR at 561."
Relative to the bulk of our criminal law, the history of the law in relation to drug offences is comparatively brief. Whilst drugs such as opium and cannabis have been used since almost the beginning of recorded history, it was not until the 1890s that steps were first taken in Australia to regulate the use of opium. It was not until the mid to late-1930s that various western countries banned the distribution and consumption of cannabis. See Dr Carney's paper, "The History of Australian Drug Laws: Commercialism to Confusion?" (1981) 7 Monash University Law Review 165.
A cursory perusal of legislation governing drugs, other than alcohol and tobacco, shows that over the years parliaments have become increasingly interested in regulating, controlling and prohibiting the use of an ever expanding range of drugs. They have done so by greatly increasing the number of proscribed drugs and by broadening, rather than confining, the means of identifying a substance as a prohibited drug. The following illustrates these developments. In 1851, concern about one poison, arsenic, resulted in legislation to regulate its sale, the Arsenic Act 1851 (UK). By 1868 there was concern about more poisons than arsenic, so legislation was passed that extended to "several articles … deemed to be poisons", which included arsenic, the Pharmacy Act 1868 (UK). In this jurisdiction the relevant legislation was the Sale and Use of Poisons Act 1886. It regulated the sale and use of 23 designated poisons including "Arsenic and its preparations" and "Opium, and all preparations of Opium or of Poppies". That Act was replaced by the Poisons Act 1916, the Schedule of which listed some 53 poisons including "Arsenical preparations … except Paris Green and other coloured paints and pigments", and "Opium and all preparations and admixtures …". With regard to some other poisons the Schedule also referred to salts and derivatives of the poison. An example is cocaine, the reference to which included "its salts and derivatives, and any preparation or admixture …". By the time that Act was replaced by the Poisons Act 1971, its Schedule of poisons had grown to five pages. The current Act relates to a poisons list contained in a statutory rule, the Poisons List Order 2001, which exceeds 300 pages.
In 1997, the Australian Health Ministers' Advisory Council published a volume titled "Standard for the uniform scheduling of drugs and poisons, No 12". The Standard is a consolidation of recommendations made by the National Drugs and Poisons Schedule Committee of the Australian Health Ministers' Advisory Council up to its twelfth meeting in February 1997. The Standard, Part 4, which sets out recommended schedules, is relevantly as follows:
"PART 4
RECOMMENDED SCHEDULES
Interpretation of Schedule entries
76Unless the contrary intention appears a reference to a poison in a Schedule includes:
(1) that poison prepared from natural sources or artificially; and
(2)…; and
(3)every salt, active principle or derivative of the poison, including esters and ethers, and every salt of such an active principle or derivative; and
(4) every alkaloid of the poison and every salt of such an alkaloid; and
(5)except where the poison is levomethorphan or levorphanol, every stereoisomer of the poison and every salt of such a steroisomer; and
(6) a preparation or admixture containing any proportion of the poison; …"
It can be seen that Part 1 of Sch 1 of the Misuse of Drugs Act, which is set out in par[2] of these reasons, largely mirrors the above portions of the Schedule recommended in the Standard.
From what I very loosely describe as the history of the Misuse of Drugs Act and the mischief it is intended to address, I conclude that when construing terms in it that describe, categorise or otherwise identify the substances to which it applies, those terms should be construed broadly and not narrowly.
In the course of the evidence it was said that one reason for the creation of designer drugs, such as ecstasy and 4-methylmethcathinone, is a belief by some that drug control legislation such as the Misuse of Drugs Act can be circumvented by modifying the structure of a substance without altering the critical parts of the structure that are responsible for its biological activity. It would not serve the purposes of the Misuse of Drugs Act to adopt a construction for derivative that gave credence to such a belief. I can find nothing in the Act or the matters that are ordinarily considered to be relevant to ascertaining the purpose of an Act to suggest that terms such as derivative should be given an unduly restrictive or technical meaning. I use the qualification unduly as the evidence is that theoretically, given time and resources, virtually every compound could be converted into every other compound. Again, theoretically, virtually every compound is structurally related to every other compound.
For these reasons I conclude that the meaning of derivative when used in relation to chemicals encompasses both the concept of a substance made from another and the concept of a substance that is structurally related to another, but that the meaning should be qualified so as to exclude such an association that is no more than theoretical. I conclude that derivative means a substance or compound that can readily be made from another substance or compound, as well as a substance or compound that is closely related structurally to another substance or compound.
The meaning of a term used in legislation to describe a drug as being within a proscribed category is a question of law. Once the meaning is determined, the further question of whether a particular substance falls within that meaning is a question of fact for the jury, Reid v Kerr (1974) 9 SASR 367, Wells J, at 376, and Yager v McQueen (1977) 139 CLR 28, at 33 – 34, and 44 – 45. On the evidence before me there is a great degree of similarity between the chemical structures of 4-methylmethcathinone and methcathinone. Accordingly there is simply no issue that the former can be (and indeed is) a derivative of the latter. If there was disagreement about whether 4-methylmethcathinone is closely related structurally to methcathinone, then that issue would need to be determined by a jury.
On 3 August 2011, the day following the conclusion of the hearing of this matter, the Misuse of Drugs Order 2011 came into effect. It added some 67 substances to those proscribed under Sch 1 of the Act. One of those substances, item 180A, is 4-methylmethcathinone. The inclusion of this item in the Schedule has had no bearing on my decision. The amendment of the Schedule to include a named drug does not imply that the drug was previously not proscribed. The Schedule must be construed as it stood at the relevant time. Where, as I have found, the named drug was previously covered by the general terms of the Schedule, the addition of the named drug simply obviates the future need to call expert evidence to satisfy a jury that it is a proscribed drug: R v McEwen (1998) 99 A Crim R 421, Smart J, agreed with by Hunt CJ at CL and Simpson J at 429.
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