Valerio v The State of Western Australia [No 2]
[2018] WASCA 158
•11 SEPTEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VALERIO -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2018] WASCA 158
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 12 MARCH 2018
DELIVERED : 11 SEPTEMBER 2018
FILE NO/S: CACR 107 of 2017
BETWEEN: SALVATORE VALERIO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE DCJ
File Number : IND 1663 of 2016
Catchwords:
Criminal law - Appeal against conviction - Manufacture of a prohibited drug - Dimethyltryptamine (DMT) - Circumstance of aggravation - Endangered the life, health or safety of a child under 16 years of age - Whether judge erred in determining there was a case to answer - Whether verdict of jury unreasonable and not supported by the evidence - Meaning of 'manufactures' in the Misuse of Drugs Act 1981 (WA) - Meaning of 'prepares' in the Misuse of Drugs Act
Practice and procedure - Application to adduce additional evidence - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 30(5)(c), s 39(1), s 40(1)(e)
Criminal Code (WA), s 4, s 10D
Misuse of Drugs Act 1981 (WA), s 3, s 4, s 6(1), s 7(1), s 33(1), s 34(1), s 34(4)
Poisons Act 1964 (WA), s 5
Therapeutic Goods Act 1989 (Cth), s 52A(1)
Result:
Leave to appeal granted on ground 2
Leave to appeal refused on grounds 1 and 3
Appeal allowed
Conviction set aside
Conviction substituted
Category: A
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Beqiri v The Queen [2013] VSCA 39; (2013) 37 VR 219
Comp Co Ltd v Blue Crest Music Inc [1980] 1 SCR 357
Director General of the Department of Transport v McKenzie [2016] WASCA 147; (2016) 77 MVR 306
Federal Commissioner of Taxation v Jack Zinader Pty Ltd [1949] HCA 42; (1949) 78 CLR 336
Federal Commissioner of Taxation v Jax Tyres Pty Ltd (1984) 5 FCR 257
McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51
McNicol v Pinch [1906] 2 KB 352
R v Bucic [2016] NSWCCA 297; (2016) 263 A Crim R 515
R v Francis-Wright [2005] VSCA 79; (2005) 11 VR 354
Re Avory [2003] SASC 430; (2003) 87 SASR 392
Ready Mixed Concrete (WA) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 293
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
Rumenos v The State of Western Australia [2011] WASCA 59
Tai v The State of Western Australia [2016] WASCA 234
TAL Life Ltd v Sheutrim [2016] NSWCA 68; (2016) 91 NSWLR 439
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Thomas v The Queen (1993) 67 A Crim R 308
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105
Weggers v The State of Western Australia [2014] WASCA 57; (2014) 240 A Crim R 205
TABLE OF CONTENTS
BUSS P
The grounds of appeal
The relevant facts and circumstances of the offending as alleged by the State at the trial, the evidence adduced at the trial and the proposed additional evidence in the appeal
The nature and characteristics of DMT and the method of producing DMT
The evidence of manufacturing relied upon by the State in its case against the appellant at the trial
The relevant provisions of the MD Act and the Poisons Act 1964 (WA)
Section 4 of the Criminal Code (WA)
The decision in McKeagg v The Queen
The merits of grounds 1 and 2 of the appeal
Ground 3 of the appeal and the appellant's application for leave to adduce additional evidence in the appeal
The identity of the appellant as the offender
Conclusion
MAZZA & MITCHELL JJA
Overview of the cases presented by the parties at trial
The evidence in detail and the no case submission
Paul Adrian Paardekooper
Aaron Heath Dean
Melanie Kate Cartwright
Ms A
Ann Cornelia Amoraal
Hannah Crisp
Jessica Marie Murdock
Michael Patrick Kelly
Statement of Dr Nikki Harmey
Close of State case and no case application
The appellant
Anna Valerio
The grounds of appeal
Ground 3
Grounds 1 and 2
Statutory provisions
Disposition - the construction issue
Disposition - was the evidence capable of proving that DMT had been manufactured?
Disposition - identity
Conclusion - grounds 1 and 2
Section 30(5)(c) of the CAA
Sentence
Orders
BUSS P:
The appellant appeals against conviction.
The appellant was charged on indictment with one count which alleged that on 2 April 2015, at Armadale, he manufactured a prohibited drug, namely dimethyltryptamine (DMT), contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA) (the MD Act). The count also pleaded, pursuant to s 34(4) of the MD Act, that the appellant was an adult and that the acts constituting the offence endangered the life, health or safety of IA, a child under the age of 16 years.
The appellant pleaded not guilty.
On 12 April 2017, after a trial in the District Court before Goetze DCJ and a jury, the appellant was convicted of the count.
On 18 April 2017, the appellant was sentenced to 3 years 4 months' immediate imprisonment. A parole eligibility order was made.
My view of the case is different from Mazza and Mitchell JJA's view. I would dismiss the appeal. My reasons are as follows.
The grounds of appeal
The appellant relies on three grounds of appeal.
Grounds 1 and 2 allege in substance that:
(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(b)further or alternatively, there was a miscarriage of justice,
in that the evidence adduced at the trial was incapable of establishing that the appellant had 'manufactured' DMT as alleged in the indictment.
Count 3 alleges in substance that additional evidence, which the appellant seeks leave to adduce in the appeal, demonstrates that a miscarriage of justice occurred at the trial.
On 25 September 2017, Mazza JA ordered that the application for leave to appeal on the grounds of appeal be referred to the hearing of the appeal. On 15 August 2017, his Honour ordered that the application for leave to adduce additional evidence be referred to the hearing of the appeal.
The relevant facts and circumstances of the offending as alleged by the State at the trial, the evidence adduced at the trial and the proposed additional evidence in the appeal
The relevant facts and circumstances of the offending as alleged by the State at the trial, the evidence adduced at the trial and the proposed additional evidence are summarised in Mazza and Mitchell JJA's reasons. I will not repeat their Honours' summary except to the extent necessary to explain my reasons.
The nature and characteristics of DMT and the method of producing DMT
The nature and characteristics of DMT and the method of producing DMT were explained by the State's witnesses, Jessica Murdock and Hannah Crisp, chemists employed by ChemCentre, in evidence they each gave at the trial.
DMT is an hallucinogenic drug.
DMT can be produced through extraction from plant material in which it occurs naturally. Alternatively, DMT can be produced by chemical synthesis.
Plants that contain DMT include some acacias (for example, some Australian wattles). The DMT content of those plants is usually less than 2.5% by weight.
The process of extracting DMT from plant material involves taking parts of the plant (for example, bark or roots) and chopping or shredding the plant material. The greater surface area caused by the chopping or the shredding facilitates the extraction of the DMT. The chopped or shredded plant material is soaked and heated in an appropriate weak acid, such as vinegar, to draw the DMT out of the plant material. The extracted DMT is then purified and concentrated by adding alkalis (for example, caustic soda) and then solvents (for example, shellite or toluene) to the liquid. After the DMT has been purified and concentrated, it can be crystallised by freezing it or allowing the solvent to evaporate. The DMT can be further refined by adding fumeric acid and converting it into fumerate salt.
The evidence of manufacturing relied upon by the State in its case against the appellant at the trial
The State's case at the trial was that on 2 April 2015, at a house in Armadale, the appellant manufactured DMT in the kitchen.
At about 8.30 pm on 2 April 2015, while the appellant was in the process of manufacturing the DMT, a fire occurred. The appellant suffered burns.
On the State's case, the appellant made admissions to an ambulance officer and a fire and emergency services officer that he had been 'cooking' shellite and caustic soda on the stove so that he could smoke 'it' with his marijuana. The appellant added that while he was 'cooking this stuff' it had ignited and burnt him.
In the early hours of 3 April 2015, police officers and Ms Crisp went to the house. When the police searched the house they found numerous items consistent with the manufacture of DMT. A clipseal bag containing a light brown powder was recovered. Later analysis showed the powder to be DMT. The police also found shredded plant material or bark and two large metal pots containing a red‑brown liquid. Later analysis of the liquid showed that it contained DMT. In addition, the police found numerous empty vinegar containers and two empty caustic soda containers.
Ms Murdock gave evidence that one of the large metal pots contained about 8.09 litres of a red‑brown liquid. A sample of the liquid was collected and tested. The volume of the tested liquid was 68 millilitres and the DMT content was about 1.07 milligrams per millilitre.
Ms Murdock also gave evidence that the other large metal pot contained about 5.28 litres of a red‑brown liquid. A sample of the liquid was collected and tested. The volume of the tested liquid was 73 millilitres and the DMT content was about 0.65 milligrams per millilitre.
The relevant provisions of the MD Act and the Poisons Act 1964 (WA)
The relevant provisions of the MD Act and the Poisons Act 1964 (WA), as at 2 April 2015 (being the date of the alleged offence pleaded in the count in the indictment), are as follows.
The long title of the MD Act states that it is an Act to prevent the misuse of certain drugs and plants and to provide for matters incidental thereto or connected therewith.
By s 3(1), in the MD Act, unless the contrary intention appears, 'prohibited drug' means 'drug to which this Act applies by virtue of section 4'.
Section 4(1) provides, relevantly, that the drugs to which the MD Act applies are:
(a)drugs of addiction; and
(b)specified drugs; and
(c)whether or not they are also drugs of addiction or specified drugs, the drugs specified in Schedule I.
By s 3(1), in the MD Act, unless the contrary intention appears, 'drug of addiction' means drug of addiction as defined by s 5 of the Poisons Act and 'specified drug' means specified drug as defined by s 5 of the Poisons Act.
Schedule I of the MD Act specifies a number of drugs and, also, preparations, admixtures, extracts or other substances containing not less than a specified percentage of particular drugs. It does not specify DMT.
DMT is, however, specified as a 'prohibited drug' in
Schedule V of the MD Act. By s 11(a) of the MD Act, for the purposes of s 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his or her possession a prohibited drug with intent to sell or supply it to another if he or she has in his or her possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug. The quantity specified in Schedule V in relation to DMT is 2 g.
At all material times, DMT has been listed in Schedule 9 to the current Poisons Standard, as defined in s 52A(1) of the Therapeutic Goods Act 1989 (Cth), and has consequently been a 'drug of addiction' as defined by s 5 of the Poisons Act and by s 3(1) of the MD Act.
DMT is therefore a drug to which the MD Act applies by virtue of s 4 of the MD Act. It follows that DMT is a 'prohibited drug' as defined in s 3(1) of the MD Act.
Section 6(1) provides, relevantly:
[A] person who -
(a)with intent to sell or supply it to another, has in his possession; or
(b)manufactures or prepares; or
(c)sells or supplies, or offers to sell or supply, to another,
a prohibited drug commits a crime, except when he is authorised by or under this Act or by or under the Poisons Act 1964 to do so and does so in accordance with that authority.
In the present case, the exception in s 6(1) to the offence created by s 6(1)(b) does not apply.
By s 3(1), in the MD Act, unless the contrary intention appears:
(a)'to supply' includes 'to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied'; and
(b)'to possess' includes 'to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb "to possess" have correlative meanings'.
The words 'manufactures' and 'prepares', within s 6(1)(b), and cognate forms of those words, are not defined in the MD Act.
Section 3(2) of the MD Act provides:
In the case of liquid preparations, percentages shall, unless other provision in that behalf is made by the regulations, be calculated on the basis that a preparation containing 1% of a substance means a preparation in which one gram of the substance, if a solid, or one ml of the substance, if a liquid, is contained in every 100 ml of the preparation, and so in proportion for any greater or lesser percentage.
By s 3(1), in the MD Act, unless the contrary intention appears, 'prohibited plant' means 'plant to which this Act applies by virtue of section 4, or part of that plant'.
Section 4(2) provides, relevantly, that the plants to which the MD Act applies are:
(a)prohibited plants as defined by section 5 of the Poisons Act 1964; and
(b)whether or not they are also prohibited plants as defined by section 5 of the Poisons Act 1964, the plants specified in Schedule II.
By s 5(1) of the Poisons Act, in the Poisons Act, unless the context requires otherwise, 'prohibited plant' means, relevantly, 'any plant from which a drug of addiction may be obtained, derived or manufactured … and includes any part of such a plant'.
Schedule II of the MD Act specifies three plants. The specified plants do not include any species of acacias.
Acacias containing DMT are plants from which a 'drug of addiction' (namely, DMT) may be 'obtained, derived or manufactured' within the definition of 'prohibited plant' in s 5(1) of the Poisons Act.
Acacias containing DMT are therefore plants to which the MD Act applies by virtue of s 4(2)(a) of the MD Act. It follows that acacias containing DMT and any part of those acacias are 'prohibited plants' as defined in s 3(1) of the MD Act.
Section 7(1) provides, relevantly:
[A] person who ‑
(a)with intent to sell or supply a prohibited plant or any prohibited drug obtainable therefrom to another, has in his possession or cultivates the prohibited plant; or
(b)sells or supplies, or offers to sell or supply, a prohibited plant to another,
commits a crime, except when he is authorised by or under this Act or by or under the Poisons Act 1964 to do so and does so in accordance with that authority.
Section 33(1)(a) provides, relevantly, that '[a] person who attempts to commit an offence (the principal offence) commits - if the principal offence is a crime, the crime', and is liable on conviction to the same penalty to which a person who commits the principal offence is liable. The MD Act does not specify the acts, matters or circumstances that constitute an attempt to commit an offence.
Section 4 of the Criminal Code (WA)
Section 4 of the Criminal Code (WA) (the Code) provides:
When a person, intending to commit an offence, begins to put his intention into execution by doing an act that is more than merely preparatory to the commission of the offence but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.
It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
It is immaterial that by reason of circumstances not known to the offender, it is impossible in fact to commit the offence.
The same facts may constitute one offence and an attempt to commit another offence.
The first paragraph of s 4 of the Code defines 'attempt'. It specifies three elements. First, an intention by a person to commit an offence. Secondly, the doing by the person of an act which is more than 'merely preparatory' to the commission of the offence, such act being done as the initial step in putting his or her intention into effect. Thirdly, non‑fulfilment by the person of his or her intention to commit the offence in question.
Section 4 of the Code supplements the provisions of s 6(1)(b) read with s 33(1) of the MD Act, which create the offence of attempting to manufacture or prepare a prohibited drug. See, generally, the reasoning in Trajkoski v Director of Public Prosecutions (WA).[1] See also Weggers v The State of Western Australia.[2]
[1] Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 [50] ‑ [63] (Buss JA; Owen JA agreeing).
[2] Weggers v The State of Western Australia [2014] WASCA 57; (2014) 240 A Crim R 205.
The decision in McKeagg v The Queen
The completed offence created by s 6(1)(b) of the MD Act refers to, relevantly, a person who 'manufactures' a prohibited drug.
In McKeagg v The Queen,[3] the appellant appealed against conviction and sentence. He was convicted, after a trial before a judge and jury, on two counts. Count 1 alleged that he had manufactured methylamphetamine. Count 2 alleged that he had attempted to manufacture methylamphetamine.
[3] McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51.
As to count 1, the appellant, using a false name, imported into Australia a 25 kg container of ma huang. Ma huang was not itself a prohibited import. However, ma huang can be used to make ephedrine and pseudoephedrine, which are precursors used in the manufacture of methylamphetamine.
The appellant's home was in Manjimup. Police searched his home pursuant to a warrant. In a bedroom they found a 25 kg container which had some ma huang in it, an invoice made out to the false name used by the appellant to import the ma huang, and a page downloaded from a computer site, headed 'Crystal Meth', being a common name or slang for methylamphetamine. The downloaded page related to the obtaining of chemicals for the manufacture of that drug. Also in the bedroom was a box containing various items of laboratory equipment. In a shed at the rear of the appellant's property were more laboratory equipment and a flask containing ma huang and another liquid. An analysis of the liquid revealed that it contained ephedrine and pseudoephedrine. A number of items in the shed contained traces of those substances.
A chemist, who gave expert evidence as part of the State's case at trial, said:
There was sufficient precursor (ephedrine/pseudoephedrine) located at the scene to conservatively produce 790 grams of high purity methylamphetamine. The glassware and equipment located at the scene were suitable for large-scale manufacture of methylamphetamine.
The laboratory appeared to have been recently set up with no previous preparations of methylamphetamine detected on the glassware. Although no methylamphetamine had been produced there was an ongoing extraction of ephedrine/pseudoephedrine from the ephedra extract to yield the precursor required for drug manufacture. Once the ephedrine/pseudoephedrine was isolated from the ephedra extract it would be in a form suitable for conversion into methylamphetamine [36]. (emphasis added)
The chemist said in evidence that a relatively small part of the overall process for manufacturing methylamphetamine was required to convert the liquid in the flask into methylamphetamine.
This court allowed the appellant's appeal against his conviction on count 1, set aside the conviction and entered a judgment of conviction for attempting to manufacture methylamphetamine. Murray AJA (Roberts-Smith JA agreeing generally and Pullin JA agreeing) said:
[W]hile you can be said to be manufacturing something while that process goes on and before the thing is finally created out of other material, you cannot, in my opinion, within the meaning of s 6(1)(b) of the Misuse of Drugs Act, be said to manufacture a prohibited drug until you make the prohibited drug. That is the completed offence, the production of the drug [49].
There was no evidence in McKeagg that the appellant had ever completed the process of manufacturing methylamphetamine as alleged in count 1.
So, on the authority of McKeagg, a person will not have manufactured methylamphetamine, for the purposes of the completed offence in s 6(1)(b) of the MD Act, unless the person has actually created or produced a substance that is or contains methylamphetamine.
The merits of grounds 1 and 2 of the appeal
The word 'manufacture', when used as a verb, is defined in the Macquarie Dictionary (5th ed, 2009) to mean, relevantly:
4. to make or produce by hand or machinery, especially on a large scale. 5. to make in any manner. 6. to work up (material) into form for use (1020).
It is apparent from the dictionary definition that the word 'manufacture', in contemporary times, includes 'make' by any manner or means, although it does not follow that 'manufactures' and 'makes' invariably have the same meaning. See Comp Co Ltd v Blue Crest Music Inc.[4]
[4] Comp Co Ltd v Blue Crest Music Inc [1980] 1 SCR 357, 377 - 378 (Estey J delivering the judgment of the Supreme Court of Canada).
It is also apparent from the dictionary definition that the word 'manufacture', in contemporary times, includes working up material into a form for use. See R v Bucic.[5]
[5] R v Bucic [2016] NSWCCA 297; (2016) 263 A Crim R 515 [32], [41] (Campbell J; Hoeben CJ at CL & Harrison J agreeing).
As Windeyer J observed in Ready Mixed Concrete (WA) Pty Ltd v Federal Commissioner of Taxation:[6]
All that can perhaps be said of the word [manufacture] is that its derivative and etymological sense no longer determines its meaning. No longer is it restricted to the handiwork of individual craftsmen (294).
See also Federal Commissioner of Taxation v Jax Tyres Pty Ltd.[7]
[6] Ready Mixed Concrete (WA) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 293.
[7] Federal Commissioner of Taxation v Jax Tyres Pty Ltd (1984) 5 FCR 257 (Lockhart J; Wilcox J agreeing).
The word 'manufactures' in modern usage has a broad connotation and a range of meanings. Its precise meaning in a particular case depends upon the connection in which it is used. In a statute, the meaning of 'manufactures', if undefined, depends to a substantial degree upon the context; in particular, upon its association with other words and upon the purpose or object of the provision in which it appears. In a statute, the meaning of 'manufactures', if undefined, is to be determined by applying the ordinary principles of statutory construction. The objective ascertainment of statutory purpose or object is integral to contextual construction. See Thiess v Collector of Customs;[8] s 18 of the Interpretation Act 1984 (WA).
[8] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [23] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
I will illustrate those propositions by reference to the case law.
In McNicol v Pinch,[9] the question was whether the appellants were bound to take out a licence as being manufacturers of saccharin within the meaning of the Finance Act 1901 (UK). The appellants subjected certain '330 saccharin' (that is, saccharin 330 times as sweet as sugar) to a chemical process, the result of which was that in some cases '550 saccharin' (that is, saccharin 550 times as sweet as sugar) was produced, in others a mixture sweeter than 330 but less sweet than 550 saccharin was produced, and in a few cases a mixture less sweet than 330 saccharin was produced. A majority of the court (Bray & Darling JJ; Ridley J dissenting) held that the appellants were not manufacturing saccharin, within the meaning of the Finance Act, so as to be compelled to take out a licence.
[9] McNicol v Pinch [1906] 2 KB 352.
Darling J reasoned towards his conclusion as follows:
The appellants, who, it is said, should have a licence, obtained something which was properly called saccharin when they got it, and they subjected it to a process at the end of which it differed in certain respects from what it was before; but it was saccharin still. It began by being saccharin, and it remained saccharin; it was not converted into something else, and to call it anything but saccharin after the process would be to misdescribe it (360).
After considering whether the word 'manufacture' is 'exactly synonymous' with the word 'make', in the context of the Finance Act, his Lordship continued:
Take the case of a carpenter. A carpenter uses wood; he begins with wood; he makes the wood into boxes. What would you say if you wanted to talk of his manufacturing? Ordinary people would not say that he manufactured wood; they would say he manufactured boxes. But I am not quite sure it might not be strictly said that he manufactures the wood. He applies a process to it. I suppose etymologically 'to manufacture' is 'to make by hand.' Everybody knows that you cannot absolutely make a thing by hand in the sense that you can create matter by hand, because in that sense you can make nothing: 'Ex nihilo nihil fit.' You can only make one thing out of another. I think the essence of making or of manufacturing is that what is made shall be a different thing from that out of which it is made. Even if it could be strictly said that the carpenter 'manufactures' wood it could not be said that he 'makes' wood. The same with a man who makes boots; he takes leather, and he makes it into boots. If he simply made leather into leather nobody could possibly say that he was a leather manufacturer, but it would be possible to say that a man who took leather and made it into boots manufactured leather but made boots. I think it would be possible to say that, and I am not sure it would not be strictly accurate, but I cannot read this statute in that way. Whether it would be possible to read 'manufacture' etymologically as something very different from 'make,' I think the Act of 1901 uses 'manufacture' and 'make' as being convertible terms, and that a man who manufactures saccharin under s 9 is doing the same thing as is called the making of saccharin under s 5, or the manufacturing of glucose or saccharin under sub-s 2 of s 5, and that the appellants did not make saccharin, because they began and ended with saccharin. They did not 'make' saccharin, and in my opinion, from the way in which the word is used by the statute, they did not manufacture saccharin, and therefore did not require a licence (361 ‑ 362). (emphasis added)
Federal Commissioner of Taxation v Jack Zinader Pty Ltd[10] was a sales tax case. A furrier received from customers fur garments which had become too badly worn and damaged to be repaired. After removing the defective parts, the furrier remodelled, by various processes, what remained of the garments into different styles of coats, capes, collars and stoles. The materials used by the furrier in remodelling were, apart from about 5% of the linings, confined to those available from the customer's garment. If new linings were required the customer supplied them. The High Court (Dixon & Williams JJ; Webb J dissenting) held the remodelled garments were goods manufactured and sold within the meaning of the Sales Tax Assessment Act (No 1) 1930 (Cth), and were liable to tax under that Act.
[10] Federal Commissioner of Taxation v Jack Zinader Pty Ltd [1949] HCA 42; (1949) 78 CLR 336.
Dixon J cited (at 343) Darling J's statement in McNicol that '[t]he essence of making or of manufacturing is that what is made shall be a different thing from that out of which it is made' (361). His Honour indicated that 'the decisive question' in Jack Zinader was therefore 'whether the garments which result from the process of remodelling are different things, that is are different "goods", from the garments that the customer hands over' (343). His Honour determined that question as follows:
The work of the furrier is to use skins to form garments. In skins he works with materials often of great value and usually of some permanence. His skill lies in the use he can make of them and the descriptions of garment he produces. Fashion, commercial usage and his customer's tastes combine to distinguish the various descriptions of garment he makes and to compel the recognization of them as separate categories of 'goods.' When he takes skins made up into one description of fur garment and produces another, he cannot be treated as having altered an existing thing without producing a new one. He has made a different article (344 ‑ 345). (emphasis added)
Williams J approached and resolved the decisive question in this manner:
The purpose of the customer in leaving an old fur garment with the defendant is not to have that garment repaired or made to fit the wearer but to provide the material required for the making and fashioning of the remodelled garment. It is immaterial whether the customer leaves the old garment complete as a garment or first unpicks the old garment and leaves the pieces of fur and linings with the defendant. The defendant is not concerned to repair or alter the old garment, it is concerned to fashion a different garment out of the serviceable pieces of the old garment or, in other words, to work up this material into a new form suitable for use. This is manufacture within the ordinary meaning of the word (350 ‑ 351). (emphasis added)
In Ready Mixed Concrete, the appellant was, among other activities, engaged in producing aggregates (that is, quantities of small pieces of stone formed by breaking up large stones), the particles being discrete, geologically homogenous and generally uniform in size and shape. The appellant used crushing plants to produce the aggregates. It claimed deductions for investment allowance in respect of several items which made up a crushing plant. The Commissioner disallowed the claimed deductions. The appellant's appeals were brought before the High Court.
The first of two questions which Windeyer J determined was whether 'the crushing of large pieces of stone to make aggregates [was] an operation by means of which manufactured goods [were] derived from other goods' (294). His Honour concluded that aggregate was, in a relevant sense, a new and different thing from blocks of stone:
It is all very well to say that it is still stone and only in small pieces instead of in big pieces. That I think is too facile a solution of the problem (294).
Windeyer J explained his view that the aggregates were new goods derived from other goods (namely, the blocks of quarried stone) and that the aggregates were aptly described as 'manufactured', as follows:
The difficulties of that word are not removed by saying that one looks at its use in ordinary parlance. In ordinary parlance a shipwright would not be called a manufacturer of ships, although a maker of motor cars is a manufacturer. All that can perhaps be said of the word is that its derivative and etymological sense no longer determines its meaning. No longer is it restricted to the handiwork of individual craftsmen. The old silversmith no doubt was a manufacturer of his wares: he manufactured them because he made them by hand. But today the phrases 'manufacturing plant' and 'manufactured goods' used in the Act connote I consider the production of goods in quantity. The question is not solved by saying that cutting up things and grinding things is not manufacturing. That is too general a proposition. A flour miller who grinds wheat is, I would have no doubt, a manufacturer. But a man who fells trees, cuts them into lengths and sells firewood for use in the domestic hearth is not, I think, properly called a manufacturer of firewood. Yet, on the other hand, a sawmiller who converts logs to lengths and forms to be used as architraves or flooring boards does, I would think, fall within the description of a person who is engaged in a process by means of which manufactured goods are derived from other goods. The question is in one sense one of mixed fact and law: or it may be said that strictly it is a question of law being a question of whether or not the facts answer a statutory description. Whether fact or law my answer is that the production of aggregates by crushing stone in a crushing plant is a manufacturing process (294 ‑ 295).
In Federal Commissioner of Taxation v Jax Tyres Pty Ltd,[11] a Full Court of the Federal Court held that the retreading of tyres was not 'manufacturing' within the meaning of the definition of 'manufacture' in s 3(1) of the Sales Tax Assessment Act (No 1) 1930 (Cth). The word 'manufacture' was defined in s 3(1) to include (a) 'production' and (b) the combination of parts or ingredients whereby an article or substance is formed which is commercially distinct from those parts or ingredients, subject to a qualification that was not relevant to the circumstances of the case. The Full Court decided (applying McNicol and Jack Zinader) that both 'manufacture' and 'production', within the definition of 'manufacture' in s 3(1), involve the element of making a different thing from that out of which it is made. The emerging article is 'different' if it has a character or use distinctive from its components. Lockhart J (Wilcox J agreeing) said:
The manufacturer knows that once a tyre is fitted it must meet and continue to meet the safety standards which are prescribed by law and that once the tyre becomes bald it can continue to be used on public roads only if it is retreaded. A new tread has no identity or existence apart from the tyre. The original tyre has not become a component or part of a new product; rather the tread rubber and other substances have become components or parts of the tyre. There has not been the manufacture of a new article but the repair or remodelling of an old one. Retreading is not manufacturing as that word is generally understood or as the extended statutory definition provides. The essence of manufacturing implies a change from which a new and different article must emerge having a distinctive character or use. This is not what happens with a retreaded tyre. The fact that the taxpayer's activities appear to be conducted on a fairly large scale does not affect my conclusions in this case. It is a relevant, though by no means a decisive, consideration.
The trial judge correctly concluded that the retreaded tyres in this case did not result from a process of manufacture (264). (emphasis added)
[11] Federal Commissioner of Taxation v Jax Tyres Pty Ltd (1984) 5 FCR 257.
In McKeagg, Murray AJA made these comments about the word 'manufactures' in s 6(1)(b) of the MD Act:
Section 6(1)(b) of the Misuse of Drugs Act provides for an offence committed by, 'a person who ‑ manufactures or prepares ‑ a prohibited drug ‑ '. Neither the word 'manufactures' nor the word 'prepares' is a word defined in the Act, although the term 'to possess' is given an extended meaning in s 3(1), as is the term 'to supply': as to which see Pinkstone v The Queen (2004) 219 CLR 444, where it was pointed out that under the extended definition a prohibited drug is supplied to another when the drug is forwarded or sent to the other person, regardless of whether or not it gets to the intended recipient.
It is therefore appropriate, I think, to give the word 'manufacture' its ordinary English meaning of making something out of something different: cf Federal Commissioner of Taxation v Jack Zinader Pty Ltd (1949) 78 CLR 336, 343. Further, while you can be said to be manufacturing something while that process goes on and before the thing is finally created out of other material, you cannot, in my opinion, within the meaning of s 6(1)(b) of the Misuse of Drugs Act, be said to manufacture a prohibited drug until you make the prohibited drug. That is the completed offence, the production of the drug [48] ‑ [49].
The meaning of the word 'manufacture' in statutory provisions concerned with prohibiting the manufacture of illicit or dangerous drugs has been considered in numerous decisions in other States. See, for example, Thomas v The Queen;[12] Re Avory;[13] Beqiri v The Queen,[14] and Bucic. Those decisions must be approached with caution because they have concerned provisions which have defined the word 'manufacture'.
[12] Thomas v The Queen (1993) 67 A Crim R 308.
[13] Re Avory [2003] SASC 430; (2003) 87 SASR 392.
[14] Beqiri v The Queen [2013] VSCA 39; (2013) 37 VR 219.
In Thomas, Gleeson CJ (Cripps JA & Allen J agreeing) held, in the context of a statute concerned with prohibiting the manufacture of illicit or dangerous drugs, that where a person manufactures something with a view to going on to use it in the manufacture of a desired end product, it is normally appropriate to characterise that as a step in the process of manufacturing the end product (311). His Honour distinguished taxing statutes from criminal statutes, in the context of whether a particular activity is a step in the manufacture of goods, on the basis that the purpose or object of a revenue statute is different from the purpose or object of a statute concerned with prohibiting the manufacture of illicit or dangerous drugs (310 ‑ 311).
In Re Avory, the Full Court of the Supreme Court of South Australia construed the phrase 'take part in the manufacture' in s 32(1)(b) of the Controlled Substances Act 1984 (SA). Perry J (Mullighan J agreeing & Besanko J agreeing substantially) held that 'take part in the manufacture' in s 32(1)(b) does not include acts taking place before the process of manufacture has commenced, but does include the transportation of all or some of the materials required for manufacture where they are knowingly intended for manufacture, and the transportation of those materials assists manufacture in an existing manufacturing process [96] ‑ [100]. Besanko J cited McNicol (361) and Jack Zinader and expressed the view that the critical question is 'whether the accused's acts are part of, or a step in, a systematic or planned or pre‑arranged series of actions or operations which involve the making of a substance or material which is different from the substances or materials out of which it is made' [105].
In Beqiri, the appellant had pleaded guilty to two offences under the Criminal Code Act 1995 (Cth) (the Commonwealth Code) including one of manufacturing a marketable quantity of a controlled drug, namely cocaine. Section 305.1 of the Commonwealth Code provided, relevantly, that 'manufacture' meant 'any process by which a substance is produced' and that included 'the process of extracting or refining a substance'. The appellant had participated in extracting cocaine from towels and clothes impregnated with cocaine. When police searched the appellant's premises they found liquid being evaporated from a number of tubs in which clothing and towels were immersed and, also, a number of tubs containing rags and clothing scraps. It was apparent that the cocaine was being subjected to a process of removal. The appellant and his co‑offenders had, for that purpose, previously obtain chemicals and equipment including dry chlorine. The Court of Appeal of Victoria (Priest JA; Warren CJ & Vickery AJA agreeing) allowed the appeal against conviction in relation to the count of manufacturing a marketable quantity of a controlled drug. Priest JA said that the word 'manufacture', in the relevant statutory context, 'ordinarily would convey a method of operation by which a "substance", cocaine, was brought into existence from other materials' [29]. The language of s 305.1, when given its ordinary, natural and grammatical meaning, conveyed that 'for a person to be guilty of an offence under that section the person must bring a substance into existence from other materials having chemical or physical properties resulting in a new substance' [32]. His Honour continued:
In this case, the relevant 'substance', cocaine, was already in existence in the impregnated towels and clothing. Thus, in employing a process to retrieve the cocaine from the towels and clothing the appellant was not extracting any new 'substance' ‑ the substance had already been manufactured. As counsel for the respondent agreed in oral argument on the appeal, the substance that was in the towels and clothing was cocaine, and the substance that came out of the towels and clothing was cocaine.
However, despite acknowledging that cocaine existed in the towels, counsel for the respondent nevertheless submitted that the cocaine in this case was 'manufactured', since it was changed from a state where it was inaccessible and unusable into one where it was accessible and usable. In my opinion, however, that submission cannot be accepted, since, properly characterised, the relevant process was not one where cocaine was brought into existence from other materials, but one where there was the physical removal of an impediment to the use of the cocaine (which was already in existence).
It is easy to imagine hypothetical cases to attempt to illustrate that, as a matter of ordinary language, 'extracting' is not necessarily incidental to 'manufacturing'. To break open a container by force in order to retrieve a substance and to place it into alternative packaging might, on one view … be considered 'extracting' the substance, but it would not be to bring the substance into existence. Similarly, to beat a Oriental carpet in order to release an illicit drug suspended within it might be 'extracting' the drug, but it would not be to produce the drug.
One thing is clear. At all relevant times during the process which was under way at the unit, the 'substance' concerned was cocaine. It did not change from cocaine into another substance, or from another substance into cocaine. Taken at its highest, therefore, the prosecution evidence was incapable of establishing that the appellant was guilty of manufacturing cocaine [33] ‑ [36]. (emphasis added)
In Bucic, the respondent was charged with 'knowingly taking part in the manufacture of a prohibited drug', namely cocaine. The trial judge directed a verdict of acquittal. The Crown appealed. The appeal was allowed. The Crown's case was that the respondent and his co‑accused had possession of a number of sheets of paper impregnated with cocaine. The Crown alleged that the respondent and his co‑accused took a number of steps to separate the cocaine from the paper. On the Crown's case, the respondent and the co‑accused had purchased items for that purpose. The items included a large bucket, some smaller buckets, disposable gloves, test tubes, 2.5 litres of iso‑Propyl alcohol, a funnel and some filter paper. The co‑accused had obtained written instructions setting out the requisite steps. The steps included cutting the paper into small pieces, immersing them in the alcohol, stirring from time to time over a period of three or four hours, mixing the material with boiling water, and providing for evaporation. Those steps, or some of them, had to be repeated on three occasions.
Campbell J recounted the expert evidence that had been given at the trial:
Evidence was given at the trial by a member of the Australian Federal Police with a bachelor’s degree in applied chemistry with honours in forensic science conferred by the University of Technology, Sydney. His evidence in chief included (reading from his statement):
21.Cocaine hydrochloride (the form in which cocaine is most commonly encountered) is freely soluble in water or alcohol.
22.If the instructions on the handwritten page were followed, utilising [alcohol] as the solvent, cocaine would be extracted from impregnated paper. This would result in cocaine dissolved in a liquid solvent (water and alcohol mixture). Evaporating the liquid solvent (either through simple evaporation or heating) would result in the deposition of a quantity of solid cocaine in a container. No specialised equipment or control chemicals are required to effect the extraction.
In cross-examination the witness agreed that 'the cocaine hydrochloride goes into that paper in that form as the cocaine hydrochloride, and comes out again in exactly the same form' (136.10 -.45T). He was asked the following question:
Q. … presupposing the extraction of which you have just given some evidence. So if its impregnated, it goes in and comes out and it is exactly the same going in and coming out?
A.It would remain cocaine hydrochloride, yes.
He confirmed that no specialised equipment or controlled chemicals are required to effect the extraction (137.35T) [7] ‑ [8].
In Bucic, the trial judge had decided that the ordinary English meaning of 'manufacture' is 'making something out of something different' and that, as in Beqiri, the evidence established that 'the substance was the same substance before it was absorbed into the paper and after it was extracted from the paper' and, therefore, 'nothing different was being made' [16].
Campbell J accepted that 'making something out of something different' is an ordinary English meaning of 'manufacture', but it is not the ordinary English meaning. Rather, there are a range of possible meanings of 'manufacture' [31].
Campbell J concluded that, in the context of the applicable statutory provisions which, amongst other things, prohibited the manufacture, production and supply of drugs, the definition derived from McNichol was too narrow [41]. His Honour said, without attempting to be exhaustive, that the legal meaning of 'manufacture' in the applicable statutory provisions included 'to work up material into a form for use' [41]. On the Crown's case, it was open to the jury, as a matter of law, to be satisfied beyond reasonable doubt that the respondent and his co‑accused were engaged in an activity of that kind [41]. His Honour distinguished Beqiri on the basis that the statutory provisions under consideration in that case were materially different [46] ‑ [49].
In the present case, I am satisfied that the evidence adduced at the trial established that DMT had been 'manufactured' as alleged by the State in the indictment and in its case at the trial. I am of that opinion for the following reasons.
First, the MD Act distinguishes between a 'prohibited drug' and a 'prohibited plant'. Each is separate and distinct from the other. Section 6 creates offences relating to prohibited drugs. Section 7 creates offences relating to prohibited plants.
Secondly, as I have explained, DMT is a 'drug of addiction' and a 'prohibited drug' for the purposes of the MD Act.
Thirdly, as I have explained, by s 4(2)(a) of the MD Act read with the definition of 'prohibited plant' in s 5(1) of the Poisons Act, the plants to which the MD Act applies include plants from which a 'drug of addiction' may be 'obtained, derived or manufactured'. By s 3(1), in the MD Act, unless the contrary intention appears, 'prohibited plant' means 'plant to which this Act applies by virtue of section 4, or part of that plant'.
Fourthly, the word 'plant', in the context of the definition of 'prohibited plant' in s 5(1) of the Poisons Act and the definition of 'prohibited plant' in s 3(1) of the MD Act, bears its ordinary and natural meaning, namely any living organism, of the kind exemplified by trees, shrubs, herbs, grasses, ferns and mosses, which is characterised by the capacity to synthesise food from inorganic substances and by the presence of cellulose in its cell walls.[15] The statutory context and an apparent purpose or object of the MD Act (namely to prohibit the misuse of certain drugs and plants including by prohibiting the production and cultivation of those drugs and plants) indicate that the plants to which the MD Act applies include dead plants and parts of dead plants. Drugs of addiction may be obtained, derived or manufactured from certain plants or parts of plants that are dead. See, generally, R v Francis‑Wright.[16]
[15] See the Macquarie Dictionary (5th ed, 2009) 1274.
[16] R v Francis-Wright [2005] VSCA 79; (2005) 11 VR 354.
Fifthly, as I have explained, acacias containing DMT and any parts of those acacias (including dead acacias containing DMT and any parts of those acacias) are 'prohibited plants' for the purposes of the MD Act.
Sixthly, the word 'obtained', in the phrase 'obtained, derived or manufactured' within the definition of 'prohibited plant' in s 5(1) of the Poisons Act, has a broad connotation.[17] Its meaning includes, relevantly, 'to get hold of or to acquire' a drug of addiction, by any manner or means, from any plant. The word 'derived', in the phrase 'obtained, derived or manufactured' within the definition of 'prohibited plant' in s 5(1) of the Poisons Act, also has a broad connotation.[18] Its meaning includes, relevantly, 'to obtain, to get or to acquire' a drug of addiction, by any manner or means, from any plant. The word 'manufactured', in the phrase 'obtained, derived or manufactured' within the definition of 'prohibited plant' in s 5(1) of the Poisons Act, also has a broad connotation.[19] Its meaning includes, relevantly, 'to make' a drug of addiction, by any manner or means, from any plant. The meaning of each critical word in the phrase 'obtained, derived or manufactured' is not unrelated to the meaning of the others. There is significant overlap, especially between the word 'obtained' and the word 'derived'. This indicates the intended breadth of the operation of the phrase.
[17] See the Macquarie Dictionary (5th ed, 2009) 1155.
[18] See the Macquarie Dictionary (5th ed, 2009) 455.
[19] [57] - [61] above.
Seventhly, in my opinion, the term 'manufactures' in s 6(1)(b) of the MD Act, in the context of the offence of manufacturing a 'prohibited drug', includes making a prohibited drug by any manner or means. In particular, the term 'manufactures' in s 6(1)(b) includes making, by any manner or means, a 'prohibited drug' from a 'prohibited plant'. The term 'manufacture' in s 6(1)(b) is not confined to 'making something out of something different' (in the sense adopted and applied in McNichol and Jack Zinader) or to 'working up material into a form for use' (in the sense adopted and applied in Bucic). The meaning that I have said is included within the term 'manufactures' in s 6(1)(b) is an ordinary and natural meaning of the term and gives effect to an apparent purpose or object of the provision, in the context of the MD Act as a whole, namely to prevent the misuse of certain drugs including by prohibiting the production of drugs of addiction.
Eighthly, the jury was entitled to be satisfied beyond reasonable doubt that shredded plant material or bark from acacias containing DMT had been used in making the red‑brown liquid found by the police in the two large metal pots.
Ninthly, the DMT in the red‑brown liquid had been 'manufactured', contrary to s 6(1)(b) of the MD Act, in that:
(a)the shredded plant material or bark used in making the red‑brown liquid was a 'prohibited plant' for the purposes of the MD Act;
(b)the DMT in the shredded plant material or bark was a natural constituent and an integral part of the plant;
(c)the DMT in the red‑brown liquid had been extracted from the shredded plant material or bark by soaking the shredded plant material or bark in acid and heating the mixture;
(d)the character of the red‑brown liquid was separate and distinct from the shredded plant material or bark; and
(e)the structure of the shredded plant material or bark was irrevocably transformed by its saturation in acid and the heating of the mixture.
Tenthly, the fact that the manufacturing process had not been completed and the fact that the DMT in the red‑brown liquid was not in a form that was able to be smoked, ingested or injected, in the customary manner, by a human being who wanted to use the drug, does not preclude my conclusion that the DMT in the red‑brown liquid had been 'manufactured', contrary to s 6(1)(b) of the MD Act. Neither the completion of the manufacturing process nor the production of DMT in a form that is able to be used by a human being in the customary manner is an essential feature of the concept of manufacturing a prohibited drug within s 6(1)(b).
Eleventhly, the decision in Beqiri turned on the proper construction and application of legislative provisions that are materially different from those which govern the present case. In any event, I am satisfied that the term 'manufactures', in s 6(1)(b) of the MD Act, has a more expansive meaning than the meaning ascribed by the Court of Appeal of Victoria to the term 'manufacture' in the statutory provisions under consideration in Beqiri.
I am satisfied that the verdict of guilty on which the conviction is based is not unreasonable. The verdict can be supported having regard to the evidence. No miscarriage of justice, as alleged in grounds 1 and 2 of the appeal, occurred at the trial.
Grounds 1 and 2 of the appeal fail.
Ground 3 of the appeal and the appellant's application for leave to adduce additional evidence in the appeal
I agree with Mazza and Mitchell JJA, generally for the reasons they give, that ground 3 of the appeal fails and that the appellant's application for leave to adduce additional evidence in the appeal should be dismissed.
The identity of the appellant as the offender
I agree with Mazza and Mitchell JJA, generally for the reasons they give, that the jury was entitled to be satisfied beyond reasonable doubt that the appellant was the offender.
Conclusion
I would grant leave to appeal on grounds 1 and 2 of the appeal, but refuse leave on ground 3.
The appeal should be dismissed.
MAZZA & MITCHELL JJA:
This is an appeal against conviction.
The appellant was charged in the District Court on indictment with one offence against s 6(1)(b) of the Misuse of Drugs Act 1981 (WA) (MDA). The charge alleged that on 2 April 2015, at Armadale, he manufactured a prohibited drug, namely dimethyltryptamine (DMT) and that at the time he was an adult and that the acts constituting the offence endangered the life, health or safety of IA, a child under 16 years of age.
On 12 April 2017, the appellant was convicted of this charge after a trial before Goetze DCJ and a jury.[20] On 18 April 2017, he was sentenced to 3 years 4 months' imprisonment with eligibility for parole.[21]
[20] ts 284.
[21] Blue green AB 2, ts 313.
The appellant, who is self‑represented, relies upon three grounds of appeal, as follows:
1.The learned trial Judge erred in law in determining that there was a case to answer when dealing with a no case submission by concluding that there was sufficient evidence upon which it could be concluded that there was a 'manufacture' (t 190).
2.The verdict of the jury was unreasonable and not supported by the evidence at trial.
3.Additional evidence demonstrates that there has been a miscarriage of justice.
The question of leave to appeal on these grounds was referred to the hearing of the appeal.[22]
[22] Order of Mazza JA, 25 September 2017.
Overview of the cases presented by the parties at trial
DMT is a hallucinogenic prohibited drug which may be found naturally in the bark and roots of certain species of tree.[23] In order to produce the drug in a form in which it can be used, the plant material must be subjected to a process in which the DMT is extracted, isolated and concentrated. This process requires a number of steps including the use of various solvents and the application of heat. The end result of this process is the production of DMT, usually in powder form. It is in this form that the drug may be consumed.[24]
[23] ts 110.
[24] ts 111 ‑ 113.
The State's case, as opened to the jury, was that, on 2 April 2015, the appellant manufactured DMT in the kitchen of a house situated at 33 Cordelia Road, Armadale (the house). The house was occupied by Ms A and her then 6‑year‑old daughter, IA. Ms A leased the house from Homeswest.[25]
[25] ts 38 ‑ 40.
The State's case was that, earlier on 2 April 2015, the appellant had manufactured a quantity of DMT in the kitchen, using various pieces of equipment and chemicals. The finished product was given to Ms A.[26]
[26] ts 40.
At about 8.30 pm on 2 April 2015, while the appellant was in the process of manufacturing more of the drug in the kitchen, a fire broke out in which the appellant suffered burns to his body. At the time of the fire, Ms A and her daughter were asleep. They were awoken by the appellant yelling out Ms A's name. Ms A went into the kitchen and saw that the appellant was on fire. She grabbed IA and took her out of the house. She then went back inside. She and the appellant attempted to extinguish the fire. Ms A saw that the appellant was burnt. At some point, the appellant went into the bathroom and showered in order to relieve his burns.[27]
[27] ts 38 ‑ 39.
Meanwhile, Ms A called triple zero. Ambulance officers arrived on the scene first, followed shortly after that by fire and emergency service officers.[28]
[28] ts 39 ‑ 41.
Two ambulance officers helped the appellant out of the shower and treated his burns. The appellant was spoken to by both ambulance and fire and emergency services officers.[29]
[29] ts 40 ‑ 41.
The State's case was that the appellant told an ambulance officer, Mr Aaron Dean, that he had been 'cooking' shellite (a solvent) and caustic soda on the stove so that he could smoke 'it' with his marijuana. He told the second ambulance officer, Ms Melanie Cartwright, essentially the same thing. He said that while he was 'cooking this stuff' it caught fire and it had poured over him, burning various parts of his body.[30]
[30] ts 40.
Later, according to the State, a fire and emergency services officer, Mr Paul Paardekooper, spoke to the appellant. The appellant told Mr Paardekooper he had been cooking shellite on the stove. Officers from the fire and emergency services then entered the house and saw a pot on the kitchen floor that was on fire. After the house was safe to enter, Mr Paardekooper again approached the appellant, who allegedly told him that he had been making DMT. The appellant told Mr Paardekooper that DMT was a hallucinogenic which he would mix with his marijuana.[31]
[31] ts 41.
In the early hours of 3 April 2015, officers from the Organised Crime Squad attended the house, along with Ms Hannah Crisp, a chemist employed by the Chemistry Centre of Western Australia.[32]
[32] ts 41.
The house was searched and numerous items consistent with the manufacture of DMT were located. A clipseal bag containing a light brown powder was recovered from Ms A's handbag. Later analysis of this substance showed it to be DMT. The police also found shredded plant material or bark and two large metal pots containing a red‑brown liquid which, on later analysis, tested positive for DMT. In addition, police located and recovered numerous empty vinegar containers and two empty caustic soda containers. Both these substances are used in the process of 'cooking' DMT.[33]
[33] ts 41.
On 18 May 2015, the appellant took part in a video‑recorded interview with Detective Senior Constable Kelly. He acknowledged he was present at Ms A's house on 2 April 2015 and that he had sustained burns attempting to put the fire out. While he admitted knowing about DMT and that he had heard how it was made, he denied making it or attempting to make it on 2 April 2015 or on any other occasion. He said that another man, Byron Harvey, had been in the house 'cooking' DMT but he (Mr Harvey) 'had taken off'.[34]
[34] ts 42; blue green AB 10 ‑ 11; interview ts 8 ‑ 9.
The appellant elected to give evidence in his defence. He admitted being at Ms A's house on 2 April 2015.[35] He said that he had seen Ms A and Mr Harvey 'cook' DMT at the house on previous occasions.[36] He testified that on the day in question he arrived at Ms A's house between 8.00 pm and 9.00 pm. Upon arriving, Mr Harvey opened the door and allowed him in. The appellant said that he smelled smoke and other odours coming from the kitchen. The appellant testified that he went into the kitchen and saw that it was on fire. He tried to extinguish the fire and was burnt in the process.[37]
[35] ts 197.
[36] ts 201.
[37] ts 197 - 200.
The appellant testified that Mr Harvey left the premises.[38] He denied telling any of the emergency service workers that he had been 'cooking' DMT.[39] He admitted having used the drug in a cigarette in the past.[40]
[38] ts 198.
[39] ts 202.
[40] ts 206 ‑ 207.
In essence, the appellant's defence was that he did not manufacture or attempt to manufacture DMT at Ms A's house on 2 April 2015 or at any other time. His case was that on 2 April 2015, Mr Harvey and Ms A manufactured, or were in the process of manufacturing, DMT. He said that he sustained burns extinguishing the fire that they had caused.
The evidence in detail and the no case submission
As the resolution of ground 2 requires this court to consider the trial record, it is necessary to set out, in some detail, the evidence that was adduced at trial. We will also refer to the appellant's unsuccessful no case submission which is the subject of ground 1.
Paul Adrian Paardekooper
Mr Paardekooper led a crew of fire and emergency officers who attended Ms A's premises on 2 April 2015.[41] Mr Paardekooper observed a fire predominantly in the kitchen area of the house. He then spoke to the appellant, who was being cared for by ambulance officers. Mr Paardekooper asked the appellant if he had been 'cooking' methylamphetamine.[42] The appellant told him 'he didn't do ice'.[43] Mr Paardekooper thought that he told him that he had been making a substance called 'DV8'. In addition to the reference to DV8, Mr Paardekooper said he heard 'caustic and shellite and mineral earth'.[44] Mr Paardekooper later went back to speak again with the appellant. He wanted to know what DV8 was. The appellant explained that it was DMT. The appellant told him that DMT was a hallucinogen that he added to his marijuana 'so that he could get high'.[45]
[41] ts 47.
[42] ts 48.
[43] ts 49.
[44] ts 49.
[45] ts 49 ‑ 50.
Under cross‑examination, Mr Paardekooper said that he did not remember the appellant saying 'they' or 'that people were making DMT'.[46] Mr Paardekooper denied the suggestion that the appellant did not tell him that he was making DMT. In responding to this suggestion, Mr Paardekooper said:[47]
My second visit to the ambulance was no longer querying what he was doing, it was querying what DV8 was and that's when he clarified that it was DMT and then I asked what DMT was and that's when he explained it was a substance that he took from a root and then they smoked it with their marijuana to be a hallucinogen. So I was just on a learning curve trying to understand what a possible new drug fire was that I was being faced with.
Aaron Heath Dean
[46] ts 55.
[47] ts 55.
Mr Dean testified that at about 8.40 pm on 2 April 2015, he and a fellow St John Ambulance WA (St John's) paramedic, Ms Cartwright, attended at Ms A's house in response to a call.[48]
[48] ts 88.
Mr Dean said that he saw a man (the appellant) with burns in the shower. When asked how he got the burns, the appellant replied that he had been 'cooking' shellite and caustic soda on the stove when it caught fire. The appellant said that this material was 'poured all over him'.[49] Mr Dean said that the appellant did not say what he had been making, but whatever it was would be smoked with his marijuana.[50]
[49] ts 88.
[50] ts 88.
Mr Dean recalled that the appellant spoke to 'one of the DFES guys'.[51] Mr Dean did not recall what the appellant had said to this man, but did recall him saying 'similar things', including that he was cooking shellite and caustic soda.[52]
[51] ts 90.
[52] ts 90.
In cross‑examination, Mr Dean denied the suggestion of defence counsel that the appellant had never said anything in the bathroom about 'cooking' shellite and caustic soda.[53] Mr Dean's account of the appellant's conversation with 'one of the DFES guys' was not challenged.
Melanie Kate Cartwright
[53] ts 92.
Ms Cartwright testified that she overheard part of a conversation that Mr Dean had with the appellant in the shower in which the appellant 'admitted to using some chemicals in the kitchen to smoke with his marijuana'.[54]
[54] ts 99.
After the fire officers arrived she recalled the 'fire chief' asking the appellant, who was by then in the back of the ambulance, 'what was going on' and 'if there was anything in the house that could hurt his officers'.[55] She testified that the appellant told the fire officer that there was nothing in the house that could hurt his officers and that he had been 'baking shellite' or 'shellac' and 'caustic soda to smoke with marijuana'.[56]
[55] ts 100.
[56] ts 100.
In cross‑examination, Ms Cartwright agreed that when she saw the appellant in the bathroom he was in a lot of pain,[57] and that, in the ambulance, he had been given pain relief, including fentanyl.[58]
Ms A
[57] ts 105.
[58] ts 105.
Ms A testified that the appellant had been living at her house on 2 April 2015 and that he had been there for approximately a year.[59] She described his relationship to her as 'my friend only'.[60]
[59] ts 56 ‑ 57.
[60] ts 57.
Ms A said that at about 4.30 pm on 2 April 2015, she and her daughter, IA, were in the lounge room watching cartoons. She said the only male person at the house was the appellant, though he was not at the house when Ms A and IA were watching cartoons.[61] At some point, she and her daughter fell asleep. When she woke up it was dark. She heard the appellant scream her name. She went to the kitchen and saw what she described as 'a wall of flames'.[62] She then put IA outside and ran back into the house.[63]
[61] ts 57.
[62] ts 57.
[63] ts 57 ‑ 58.
On the appellant's instructions she attempted to smother the fire. At this stage, there was no one else in the house apart from her and the appellant.[64]
[64] ts 59.
Ms A testified that there was no discussion between her and the appellant about the source of the fire.[65]
[65] ts 60.
Ms A recalled that, at one point, she was the only person in the kitchen trying to put the fire out. Soon after, she found the appellant, 'badly burnt', in the shower.[66]
[66] ts 60 ‑ 61.
Against the appellant's wishes, Ms A called for an ambulance.[67] Eventually, some police officers and firefighters came to the house.[68]
[67] ts 61.
[68] ts 62.
Ms A said that, after the incident on 2 April 2015, she was charged with attempted manufacture of DMT. Eventually, that charge was 'downgraded' to allege an offence of allowing a person to manufacture DMT in the house. She pleaded guilty to this offence.[69] She had not been sentenced at the time of the appellant's trial.
[69] ts 62.
Under cross‑examination, she denied that the police proposed to her that they would downgrade the charge if she gave evidence for the prosecution against the appellant.[70]
[70] ts 63.
Ms A said that she knew a man named 'Byron'. She denied that she had been in a relationship with him. She said that Byron came to her house once, 'stole something from [her]' and that he was not welcome there again.[71]
[71] ts 65.
Ms A denied that Byron had been in the house on 2 April 2015. As far as she was aware, Byron was in New Zealand at the time.[72]
[72] ts 66.
Ms A recalled the appellant telling the ambulance officers that there were chemicals in the house and to inform the firefighters of this when they arrived.[73] She also recalled telling the firefighters that there was vinegar in the kitchen for making chips.[74]
[73] ts 69 ‑ 70.
[74] ts 70.
She admitted that the police found a clipseal bag containing a powdery substance in her handbag.[75]
[75] ts 71.
Defence counsel showed Ms A a transcript of a conversation she had with police officers at her house in the early hours of 3 April 2015. She accepted that she told the police officers that she had smoked DMT on one occasion,[76] and that 'it tasted disgusting'.[77] She agreed that the police found, in addition to the clipseal bag containing the powdery substance, some empty clipseal bags and a syringe.[78]
[76] ts 76.
[77] ts 77.
[78] ts 77.
When defence counsel suggested to Ms A that she and Byron Harvey had been making DMT at her house, she said that suggestion was 'absolutely absurd'.[79] She denied the fire at her house was caused by Mr Harvey making DMT.[80]
[79] ts 77.
[80] ts 77.
When she was asked by defence counsel why she had pleaded guilty to a charge of knowingly allowing her premises to be used for the manufacture of DMT when her evidence was that, at the time the drug was being manufactured, she was asleep and did not know what was going on in the kitchen, she said:[81]
I did not have a drug lab in my kitchen. I was not responsible for cooking up drugs in my kitchen and I did - do not want to go to gaol for up to 25 years for something that I had no part in.
[81] ts 78.
Ms A reiterated that there was no agreement between her and the prosecution that the charge of attempted manufacture of DMT would be downgraded in exchange for her giving evidence against the appellant.[82]
[82] ts 78.
In re‑examination, she said that, on the occasion Byron Harvey visited her house, he was brought there by the appellant.[83] She confirmed that Mr Harvey had been to her house once only. She said that visit was 'a few weeks, maybe even a couple of months prior to the … fire'.[84]
Ann Cornelia Amoraal
[83] ts 78 ‑ 79.
[84] ts 79.
Ms Amoraal testified that, at the time of the alleged offence, she lived in the house next door to Ms A.[85]
[85] ts 80.
Ms Amoraal testified that in the afternoon of 2 April 2015, Ms A came to her house and asked for some caustic soda to unblock a drain. Although Ms Amoraal regarded the request as 'odd', she gave Ms A the caustic soda.[86]
[86] ts 82.
That evening, at about 8.15 pm, she detected a 'strange smell' coming from Ms A's house.[87] She went inside the house to investigate and found Ms A trying to put out a fire in her kitchen. Ms A told her, '[The appellant's] in the shower and he's all burnt and I've called the ambulance'.[88]
[87] ts 82.
[88] ts 83.
Ms Amoraal saw no other men in the house at the time.[89]
[89] ts 83.
Ms Amoraal recalled that, when the ambulance officers brought the appellant out of the house, she did not speak to him because he was in pain.[90]
[90] ts 83 ‑ 84.
In cross‑examination, Ms Amoraal said she had a vague recollection of someone called Byron being at Ms A's house in the months leading up to the fire.[91]
[91] ts 84.
In re‑examination, Ms Amoraal said that her recollection of Byron was 'very vague' and was based on a conversation she had with Ms A. Ms Amoraal said that she did not meet Byron.[92]
Hannah Crisp
[92] ts 87.
Ms Crisp holds a Bachelor of Science degree with Honours in forensic science from Curtin University and is an approved analyst under the MDA.[93] She is employed at the ChemCentre and is the team leader of the clandestine laboratory section.[94]
[93] ts 107.
[94] ts 106 ‑ 107.
In the early hours of 3 April 2015, at the request of Detective Michael Kelly from the Organised Crime Squad, she attended at the house, both the inside and outside. She located various items and took a number of samples for subsequent forensic analysis. She conducted a 'video walk‑through' of the premises, which was shown to the jury and marked exhibit 1.[95]
[95] ts 107 ‑ 109.
Ms Crisp testified that DMT can be produced either by chemical synthesis or through extraction from plant material.[96]
[96] ts 117.
Ms Crisp explained that DMT occurs naturally 'in very low doses'[97] in certain species of tree. However, it can be extracted and concentrated from that plant material and rendered into a powder or paste.[98] It is unnecessary to describe in minute detail all of the steps necessary to produce these forms of DMT. The process begins with the plant material being shredded or 'powdered up'. Typically, this material is placed in a large container with a weak acid such as vinegar to which heat is applied. This draws the DMT from the plant material. Once this step is completed, caustic soda or some similar substance is added in order to increase the pH. Following this, an organic solvent such as shellite or toluene is added. As a result, two layers of liquid will form. The top layer comprises the DMT and solvent. This layer is then removed and the solvent is evaporated off, leaving the DMT.[99]
[97] ts 110.
[98] ts 121.
[99] ts 111.
Ms Crisp testified to the effect that once the DMT is in its powdered form, it could be smoked, ingested or injected.[100]
[100] ts 112.
Ms Crisp explained that the process she described ran the risk of explosion or fire because of the presence of a flammable solvent such as shellite or toluene near an open flame. The substance might spill onto the floor or, if the solvent becomes warm and forms a gas, it may come into contact with an open flame and ignite.[101]
[101] ts 112 ‑ 113.
In the course of her inspection of the house, Ms Crisp found a number of items consistent with the production of DMT from plant material, including shredded bark, numerous empty bottles of vinegar, caustic soda containers, and large cooking pots containing a red or brown stained liquid, one of which contained two layers of liquid consistent with the process she described.[102] Ms Crisp noted the presence of a colander or strainer which she said could be used to strain the liquid to remove the plant material.[103] She also noted the presence of a small hatchet or axe which she said could be used to cut bark into smaller pieces.[104]
[102] ts 113 ‑ 116.
[103] ts 115.
[104] ts 116. Ms Crisp's observations were recorded in a video walk‑through of the house (exhibit 1). A number of photographs were also taken (exhibits 2.1 ‑ 2.8).
Ms Crisp was unable to be precise as to how long the process of obtaining DMT from plant material might take. The step of extracting DMT by immersing the plant material in vinegar and applying heat ‑ referred to in Ms Crisp's evidence as 'boiling' - could take about two hours or longer.[105] The whole process could take from three to six hours.[106]
[105] ts 118.
[106] ts 119.
In cross‑examination, Ms Crisp said that, as soon as vinegar was added to the plant material and heat was applied, the extraction process had begun. However, in order to obtain DMT, she said 'you would still need to add a solvent to isolate the DMT from the plant material'.[107] She reiterated in cross‑examination that the final form in which DMT is produced is either as a powder or a paste.[108]
Jessica Marie Murdock
[107] ts 121.
[108] ts 121.
Ms Murdock is a chemist, employed by the ChemCentre. She has a Bachelor of Technology in forensic and analytical chemistry from Flinders University. Like her colleague, Ms Crisp, she is an approved analyst under the MDA. Ms Murdock analysed the samples taken by Ms Crisp from the house.[109] That analysis revealed:
1.Plant material discovered at the premises contained DMT.[110]
2.The red/brown liquid taken from one of the large cooking pots had a pH of approximately 14, and contained DMT and water. A pH of 14 'is a highly basic liquid'. Ms Murdock said, in effect, that this was indicative of the addition of a substance such as caustic soda, and was consistent with the extraction of DMT.[111]
3.Another sample of red/brown liquid taken from another large cooking pot also revealed DMT, with a pH of approximately 14.[112]
[109] ts 123.
[110] ts 127.
[111] ts 128 - 129.
[112] ts 129 ‑ 130.
Further samples were analysed by Ms Murdock, but it is unnecessary to set out her findings. Ms Murdock estimated in her report that 12.09 g of DMT could have been manufactured.[113]
[113] ts 128, 130, 295 ‑ 297.
Ms Murdock expressed her conclusions as follows:[114]
The conclusions that I formed were that the presence of [DMT] on a number of items, together with the presence of various liquids, bark and wood shavings indicates that [DMT] has been manufactured previously by extraction and isolation from plant material.
[114] ts 133.
The prosecutor then asked Ms Murdock a number of questions to clarify what she meant by the use of the word 'manufactured'. The relevant portion of examination‑in‑chief is as follows:[115]
Okay. So you formed the view that DMT had been manufactured previously by extraction, isolation from plant material? That's correct, yes.
Okay. So you - your view was that the actual substance had been made previously? It's my view that the DMT had been extracted from plant material. The plant material forms DMT naturally.
Okay. But you've said here that it - the presence of all these items indicates it has been manufactured previously? Manufactured into a form that it can be used.
Okay. Well, what do you mean by that? Does - did you form a view the actual drug had been manufactured, say the powder, the final product or? The - my view is that the manufacture process which includes the extraction of DMT from plant material has taken place.
Okay. So it has been made as - as a result of these items on your - in your opinion? It's been extracted from the plant material.
Okay. So you can't say whether the actual final product, the white powder, has been made? There was no - no powder submitted to me for analysis that was identified as - as DMT. However, there were liquids that contained DMT.
Okay? Based on the items that were located at the scene and the items that were submitted to me for analysis it's my opinion that the DMT had been extracted from plant material.
[115] ts 133 ‑ 134.
In cross‑examination, defence counsel elicited from Ms Murdock that she was not familiar with the way in which DMT was ingested.[116] She reiterated that, based on the items that she had been given to analyse, it was her opinion:[117]
that DMT was extracted from plant material that originally contained DMT.
She was unable to say when that extraction had taken place.[118]
Michael Patrick Kelly
[116] ts 135.
[117] ts 135.
[118] ts 135 - 136.
Dectective Kelly is a detective senior constable of police, stationed at the Organised Crime Squad.[119]
[119] ts 136.
At about 12.40 am on 3 April 2015, he attended at the house with other officers and Ms Hannah Crisp. There he met Ms A and executed a search warrant.[120]
[120] ts 137.
Detective Kelly testified that a plastic bag which contained wet, brown powder that had been seized from Ms A, was sent for analysis.[121] Through Detective Kelly, the prosecutor tendered a certificate of approved analyst with respect to the wet, brown powder, which said that the powder weighed 0.15 g and that DMT was a component of it.[122]
[121] ts 141.
[122] ts 143 ‑ 144; exhibit 4.
Without objection, Detective Kelly testified that a forensic officer had lifted the appellant's palm print from a vinegar bottle found in the back bedroom of the house.[123]
[123] ts 148 - 149; exhibits 5.1, 5.2.
Detective Kelly interviewed the appellant under caution on 18 May 2016. The interview was recorded on video. With the agreement of defence counsel, an edited version of that interview was tendered in evidence and played to the jury.[124] In the record of interview, the appellant said:
[124] ts 153 ‑ 155.
1.On the day in question he rode to Ms A's house on a bike, after 'riding around for a couple hours'.[125]
[125] Blue green AB 50 - 51; interview ts 48 ‑ 49.
2.When he got there he saw 'the owner of the property' and her daughter 'out the front'.[126]
3.He entered the house and saw two pots 'smouldering, burning away'.[127]
4.By then, Byron Harvey 'had taken off'.[128]
5.He had seen Byron Harvey make DMT at Ms A's address 'maybe a couple of months before that'.[129]
6.The appellant did not see Byron Harvey at the house that night.[130]
7.When he went into the house he saw, 'basically, a fire smouldering underneath … a couple of … blankets'.[131]
8.He attempted to extinguish the fire and, in the process, he was burnt.[132]
9.He had tried DMT by smoking it in a cigarette, but he did not like it.[133]
10.Byron Harvey had gone back to New Zealand. The appellant said that he had 'people looking for him'.[134] Later, the appellant said that he had heard that Byron Harvey had left 'within a week, two' of the fire.[135]
11.He was not involved in the production of drugs at Ms A's house on 2 April 2015 and that it was a case of being at the 'wrong place at the wrong time'.[136]
[126] Blue green AB 10; interview ts 8.
[127] Blue green AB 10 ‑ 11; interview ts 8 ‑ 9.
[128] Blue green AB 11; interview ts 9.
[129] Blue green AB 15; interview ts 13.
[130] Blue green AB 19; interview ts 17.
[131] Blue green AB 20; interview ts 18.
[132] Blue green AB 65 ‑ 66; interview ts 63 ‑ 64.
[133] Blue green AB 24 ‑ 25; interview ts 22 ‑ 23.
[134] Blue green AB 48; interview ts 48.
[135] Blue green AB 53; interview ts 51.
[136] Blue green AB 51; interview ts 49.
Detective Kelly said that a Byron Harvey was identified on the police database system. A detective was assigned to attend his last known address, but it was found that he was not living there. An alert was placed on the database in the event that he had contact with the police. Detective Kelly had not spoken to Mr Harvey.[137]
[137] ts 156.
In cross‑examination, Detective Kelly was asked questions about the decision to downgrade the charge originally laid against Ms A of attempting to manufacture DMT, to knowingly allowing a premises to be used for the manufacture of drugs. He denied saying anything to Ms A to the effect that if she assisted or gave evidence for the prosecution, the charge would be downgraded. Further, he did not say to Ms A that if she gave evidence or assisted the prosecution, it would be relevant to her sentencing for the downgraded charge.[138]
[138] ts 161.
Defence counsel also cross‑examined Detective Kelly about Mr Harvey. Detective Kelly said that the police database revealed that Mr Harvey had committed 'some traffic offences',[139] and that he had been convicted of possession of methylamphetamine, possession of a weapon, trespass, disorderly conduct and breach of bail. Detective Kelly said that no enquiry had been made as to whether Mr Harvey had left Australia.[140]
Roberts‑Smith JA analysed analogous statutory provisions and cases from elsewhere in Australia. His Honour made the point that the relevant legislation in these jurisdictions have, unlike Western Australia, an extended definition of the word 'manufacture' which embraces the processes and other preparatory steps leading to the completion of the production of the manufactured substance.[195] Roberts‑Smith JA concluded that as there was no extended definition of 'manufactures' in the MDA, it was necessary for the Crown to prove that the process of manufacture had been completed and methylamphetamine had been produced.[196]
[195] McKeagg [5] - [16].
[196] McKeagg [18].
The meaning of the word 'manufacture' has recently been considered by the Court of Appeal of Victoria in Beqiri v The Queen,[197] and by the Court of Criminal Appeal of New South Wales in R v Bucic.[198] Beqiri raised a question as to the proper construction of 'manufacture' as defined in s 305.1(1) of the Criminal Code Act 1995 (Cth) (the Code), which provides:
[197] Beqiri v The Queen [2013] VSCA 39; (2013) 37 VR 219.
[198] R v Bucic [2016] NSWCCA 297; (2016) 263 A Crim R 515.
(1)For the purposes of this Part, manufacture means:
(a)any process by which a substance is produced (other than the cultivation of a plant), and includes the following:
(i)the process of extracting or refining a substance;
(ii)the process of transforming a substance into a different substance; or
(b)any process by which a substance is converted from one form to another, including the process of extracting or refining a substance.
Bucic raised a question of the meaning of 'manufacture' as defined in s 3 of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA), which provides:
manufacture, in relation to a prohibited drug, includes the process of extracting or refining the prohibited drug.
In each of these cases, the accused was convicted of an offence relating to the manufacture of cocaine in circumstances where he had extracted cocaine that had been impregnated in towels and clothes (Beqiri) and paper (Bucic).
The outcomes in each case depended upon the particular statutory provisions under consideration. In Beqiri, Priest JA (with whom Warren CJ and Vickery AJA agreed) held that the process of retrieving, from towels and clothing, cocaine, a substance that had already been manufactured, was not extracting any new substance. At all times, the substance concerned was cocaine. In these circumstances, there was no manufacture for the purpose of s 305.1(1) of the Code.[199] Priest JA held that the ordinary meaning of the word 'manufacture' was 'to make something out of something else', and cited Jack Zinader and McKeagg with apparent approval.
[199] Beqiri [33] - [36].
In Bucic, Campbell J (with whom Hoeben CJ at CL and Harrison J agreed) found that the process of extracting cocaine from paper was a step in the process of extracting the drug within the definition in s 3 of the DMTA. Campbell J held that Beqiri had no application to the construction of s 3 of the DMTA, having regard to the differences between the definition in that section and the definition in the Code.[200]
[200] Bucic [47].
The facts of these cases have some similarity to the present case in the sense that they concern the extraction of a prohibited drug. Doubtless, this is why the cases were brought to the attention of the trial judge and were cited and analysed in the written submissions in this court. Ultimately, however, they do not greatly assist in the task of construing s 6(1)(b) of the MDA. This is because the legislation under consideration in Beqiri and Bucic is very different to the MDA.
However, in Bucic, Campbell J discussed the ordinary meaning of the word 'manufacture'. Campbell J made the following observations about the ordinary meaning of the word 'manufacture', with which we respectfully agree:[201]
1.While 'making something out of something different' is an ordinary English meaning of 'manufacture', it is not the only ordinary meaning of the word.
2.Although dictionary definitions assist in the interpretation process in identifying the range of possible meanings a word may bear in various contexts, it will not assist in ascertaining the precise meaning a word bears in a particular context. Dictionaries are no substitute for the interpretative process.[202]
3.Insofar as dictionary meanings are able to assist, none of the range of meanings of the word 'manufacture' in the Macquarie Dictionary or the Oxford English Online Dictionary include 'to make something from something different'. The Oxford English Dictionary speaks of making something from raw materials or 'converting' something. Amongst the definitions in the Macquarie Dictionary is to work up (material) into a form of use.
4.Jack Zinader (the case relied upon by Murray AJA in McKeagg, and later by Priest JA in Beqiri) was a revenue case. In that case, Dixon J approved the definition of 'manufacture' given by Darling J in McNicol v Pinch,[203] who said:
The essence of making or of manufacturing is that what is made shall be a different thing from that out of which it is made.
The purpose of a revenue statute is different from a statute the purpose of which is to prohibit the manufacture, distribution and supply of harmful illicit drugs. A revenue statute is a very different context for interpreting the word 'manufacture'.
[201] Bucic [31] - [40].
[202] Bucic [31], citing TAL Life Ltd v Sheutrim [2016] NSWCA 68; (2016) 91 NSWLR 439 [80] (Leeming JA).
[203] McNicol v Pinch [1906] 2 KB 352, 361.
As we have said, the word 'manufactures' in s 6(1)(b) of the MDA must be construed in context. Part of that context is that the word does not appear alone in that subparagraph. The word 'prepares' also appears. The two words are, as we have observed, separated by the disjunctive 'or'. It must be inferred that Parliament in prohibiting the preparation of a prohibited drug, intended to prohibit conduct different to the manufacture of a prohibited drug.
Neither this court nor its predecessor has been required to construe the word 'prepares' in s 6(1)(b) of the MDA.
The range of possible meanings of the word 'prepare' includes 'to make ready, or put in due condition, for something' or 'to manufacture, compound or compose'.[204] The Macquarie Online Dictionary defines the verb 'compound' in a number of ways, including 'to make up or constitute'. Among other meanings, the Oxford English Online Dictionary defines 'prepare' as 'to produce, form, or make, especially by bringing together ingredients or components; to manufacture; to synthesise, concoct, compound'. It may be seen that the dictionary meaning of the verb 'prepares' overlaps with that of 'manufactures'.
[204] See Macquarie Online Dictionary.
While the concepts of manufacture and preparation overlap, the terms also have distinct areas of application. For example, the combination of other chemicals to create methylamphetamine might be regarded as a 'manufacture' but not a 'preparation' of methylamphetamine. Conversely, taking methylamphetamine which is already in usable form, diluting it with a cutting agent and placing it in packages ready for sale may involve preparation, but not manufacture, of methylamphetamine.
The purpose of the MDA is to prevent the misuse of harmful illicit drugs and plants by, amongst other things, prohibiting their possession, sale, supply, preparation and, in the case of illicit plants, cultivation. Having regard to purpose and context, we see no reason why the verb 'manufactures', in s 6(1)(b) of the MDA, should be construed narrowly. In our view, the meaning of the word includes, as Murray AJA held, to make something out of something different, but also to make the material into a usable form. Thus, while the word 'manufactures' embraces, for example, such processes as the manufacture of methylamphetamine by the Birch reduction method, it also embraces an extraction process of the kind described by Ms Crisp and Ms Murdock in their evidence. That process began with DMT in low concentrations in plant material which was, at that point, in a completely unusable form. By the process they described, the DMT was extracted and concentrated using chemicals and heat. Once completed, the DMT in the plant material which had existed in low concentration and was unusable, was made into a form for which it could be used.
Further, the extraction process used in this case also constituted the preparation of DMT in that the process made ready the prohibited drug for use.
To sum up, reference to 'manufacture' in the MDA encompasses both aspects of the ordinary meaning of the term - making a prohibited drug out of something different and working up a prohibited drug into a form for use. In the present case, the first aspect of the ordinary meaning of 'manufacture' is not relevant - the DMT always existed and was not made by the process undertaken in the kitchen of the house. However, the second aspect of the ordinary meaning of 'manufacture' was applicable to the process being undertaken in the kitchen of the house. In our opinion, to manufacture a prohibited drug, within the meaning of the MDA, includes extracting the drug from a natural source by using chemicals and heat, as a result of which the drug in question is produced in a usable form. The process used in the present case was a process of manufacturing. It was also a process of preparation.
Disposition - was the evidence capable of proving that DMT had been manufactured?
The State did not, on appeal, maintain the position that the DMT found in Ms A's possession was the subject of the charge in the indictment.
There was no evidence that DMT, in its powder or paste form, had been produced as a result of the process in which the appellant was allegedly burnt. Ms Crisp testified to the effect that, once the DMT is in its final form, it could be smoked, ingested or injected.[205] Ms Crisp did not say that the layer of liquid in which extracted DMT and solvent were present could be used in any of the ways she mentioned.
[205] ts 112
Ms Murdock equated the manufacture of DMT with the extraction of the drug into liquid. However, she was not familiar with the way in which DMT was ingested.[206] She did not say that DMT, which had been extracted into the liquid used in the manufacture process, was capable of use.
[206] ts 135.
In his reasons for rejecting the no case submission, his Honour concluded that there was sufficient evidence that the liquid in the pot found in Ms A's kitchen 'could be ingested or injected'.[207] With respect, this was a misunderstanding of Ms Crisp's evidence. She did not testify to this effect, and neither did Ms Murdock. While the manufacture of DMT had well and truly begun, it was incomplete at the time the appellant was burnt. There was no evidence that DMT in a usable form had been produced. There was no evidence that the DMT was usable in the solution, where its concentration would be low and the toxic caustic soda and solvent would preclude the ingestion or injecting the drug. As the court held in McKeagg, the offence of manufacture is only committed when manufacture has occurred. In this case, that would occur only when the DMT was converted into a usable form, which the evidence did not establish to occur before completion of the process of extraction, isolation and concentration of DMT into a paste or powder. The process of manufacture was not complete at the time the fire started, when the DMT was still in solution.
[207] ts 190.
In our opinion, having regard to all of the evidence, it was not open to either his Honour or the jury to conclude that DMT had been manufactured.
However, there was ample evidence to establish that the process of manufacturing DMT had commenced and had proceeded to a reasonably advanced stage whereby DMT, which originated from the bark, had been extracted into a solvent. The next stage in the process, which involved the evaporation of the solvent, had not commenced. Until that stage was completed, no usable DMT could be produced. In our opinion, the evidence clearly showed that someone attempted to manufacture DMT. The acts which we have described were more than merely preparatory and they were plainly done with the intention of manufacturing DMT and thereby committing an offence contrary to s 6(1)(b) of the MDA.[208]
[208] Section 4 Criminal Code (WA) and see Weggers v The State of Western Australia [2014] WASCA 57; (2014) 240 A Crim R 205.
Disposition - identity
Finally, we turn to the question of whether it was open to the jury to conclude that the appellant was the offender. In our opinion, it was well open for the jury to be satisfied beyond reasonable doubt that the appellant was the offender, having regard to the combined weight of the following factors.
1.DMT was being manufactured in Ms A's kitchen on the evening of 2 April 2015.
2.The appellant had consumed DMT and had some knowledge of how it was produced.
3.There was evidence that the appellant was at Ms A's house at the time that the drug was being produced.
4.The appellant suffered burns as a result of solvent, or gas created by solvents, igniting during the extraction process.
5.It was well open to the jury to accept Mr Paardekooper's testimony that the appellant admitted to him that he had been making DMT. Having regard to:
(a)the fact that Mr Paardekooper was an independent witness;
(b)Mr Paardekooper was told, correctly, by the appellant that DMT was a substance taken from 'a root' and then smoked;
(c)in the first conversation that Mr Paardekooper had with the appellant, he heard the appellant refer to 'caustic' and some mineral …';[209] and
(d)both Mr Dean and Ms Cartwright also heard the appellant refer to shellite and caustic soda.
5.Although the appellant was spoken to by ambulance and fire and emergency services officers on the night, he did not say anything to the effect that the fire had been caused by the activities of Mr Harvey and/or Ms A, and that he had been burnt putting out a fire caused by others.
6.It was well open to the jury to reject the exculpatory statements made by the appellant in his record of interview with the police and his sworn testimony, having regard to the admissions made to Mr Paardekooper and the other ambulance officers. Further, the account the appellant gave in his sworn testimony, that he saw and spoke to Mr Harvey at Ms A's address, does not sit well with the statement he made in the video recorded interview to the effect that, when he entered the house, Mr Harvey 'had taken off'.
[209] ts 48 - 49.
As to the evidence of the appellant's mother, it does not, to our minds, raise a doubt as to the capacity of the appellant to travel to Ms A's house and begin the process of manufacturing DMT.
We have approached the evidence of Ms A with some caution. She was also present at the house at all material times on 2 April 2015 and was found in possession of DMT. However, there is no evidence of any agreement between her and the prosecution to downgrade the charge originally laid against her to a lesser charge. Upon our reading of the transcript of her evidence, she did not appear to be shifted in any significant way in cross‑examination. Her denials of being involved in the manufacture of DMT in her house on the night in question appear capable of belief.
Conclusion - grounds 1 and 2
We would uphold ground 2 because, as a matter of law, the appellant could not have been found guilty of the offence for which he was charged, being that he manufactured a prohibited drug. In these circumstances, it is unnecessary to decide ground 1. The conviction must be set aside.
This leaves for consideration the question of whether s 30(5)(c) of the CAA should be applied, and a judgment of conviction for attempting to manufacture DMT should be entered.
Section 30(5)(c) of the CAA
Section 30(5)(c) of the CAA is in these terms:
if -
(i)the offender could have been found guilty of some other offence (offence B) instead of offence A; and
(ii)the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A[.]
In our opinion, the conditions in subparagraphs (c)(i) and (ii) of subsection 5 have been complied with. The appellant could have been found guilty of attempting to manufacture DMT because of the operation of s 10D of the Criminal Code Act Compilation Act 1913 (WA) which provides that 'If a person is charged with committing an offence … instead of being convicted as charged, may be convicted of (a) attempting to commit … the principal offence …'. Further, we are satisfied that the jury in the present case must have been satisfied of the facts that prove the offender was guilty of an attempted manufacture of DMT.
In these circumstances, it is appropriate to enter a judgment of conviction for the offence of attempting to manufacture a prohibited drug.
Sentence
This court must now impose a sentence upon the appellant for this offence. The sentence must be no more severe than the sentence that was imposed after trial.
By an application filed on 19 March 2018, the appellant applied for leave to adduce additional evidence relating to his resentencing, pursuant to s 40(1)(e) of the CAA. The additional evidence comprises, in substance, evidence which shows that the appellant has completed a number of treatment and educational programs, and has not been subject to any prison charges while in custody. We would grant leave to the appellant to adduce the additional evidence in his affidavit.
The appellant submitted that if he was convicted of attempted manufacture of a prohibited drug, he should be sentenced to a lesser term of imprisonment or he should receive a partially suspended term of imprisonment.[210] The respondent submits that no different sentence should be imposed.[211]
[210] Appellant's supplementary submissions filed 19 March 2018, pars 10 ‑ 11.
[211] Respondent's supplementary submissions filed 21 March 2018, pars 3, 14.
By s 33(1) of the MDA, a person who attempts to commit an offence is liable on conviction to the same penalty to which a person who commits the principal offence is liable. By s 34(1) of the MDA, the maximum penalty for an offence under s 6(1) is 25 years' imprisonment, or a fine not exceeding $100,000, or both. It will be remembered that the appellant was charged with an offence under s 6(1)(b) that also alleged an aggravating circumstance, namely that, at the time of the offence, he was an adult and that the acts constituting the offence endangered the life, health or safety of IA, a child under 16 years of age. By reason of s 34(4), a court sentencing a person for an offence under s 6(1)(b), in the circumstance of aggravation we have mentioned, must, for a first offence, impose only an immediate term of imprisonment, or a conditionally suspended term of imprisonment, or suspended imprisonment.
In Tai v The State of Western Australia,[212] the court (Newnes & Mazza JJA & Beech J) said:[213]
The offence of attempting to manufacture carries the same 25 year maximum as the completed offence. While it has been said that the conventional approach is nevertheless to generally treat an attempt as less serious than a completed offence, whether that is so depends on the circumstances of the case. In some cases, the circumstances of an attempt may be no less serious than the circumstances of a completed offence. This will often be so when the offender has all the necessary materials to undertake the manufacturing process. Thus, the sentences imposed for attempts to manufacture are broadly consistent with the sentences for completed offences. (citations omitted)
[212] Tai v The State of Western Australia [2016] WASCA 234.
[213] Tai [31].
In our opinion, the circumstances of the attempted offence committed by the appellant are not materially less serious than the circumstances of the completed offence. The appellant had begun and was well advanced in the process of manufacturing DMT. The process involved the use of dangerous chemicals. The dangers of the process came to pass. A fire broke out which inflicted injury upon the appellant and had the potential to inflict injury upon others, including a very young child. Fire and emergency personnel were called to the scene. They were exposed to the dangers posed by the fire and the chemicals that were used in the manufacturing process.
The dominant sentencing consideration in offences such as this is general deterrence.[214] Personal circumstances, while not irrelevant, are given less weight.
[214] Rumenos v The State of Western Australia [2011] WASCA 59 [26].
At the time he was sentenced, the appellant was 47 years of age. He does not have youth on his side. He has a lengthy record of convictions, including for the possession of drugs and other offences, including various offences of dishonesty and traffic offences. It cannot be said that the appellant is a person of good character.
There are few mitigating circumstances. Plainly, the appellant does not have the benefit that a plea of guilty would have brought. While the additional evidence shows that the appellant has made efforts towards rehabilitation while in prison, and as commendable as these efforts are, the appellant continues to refuse to accept responsibility for his offending.
Having regard to all relevant circumstances, the only appropriate penalty is to impose a term of imprisonment. In our opinion, that term of imprisonment should be no different to the term imposed by the trial judge.
Having regard to the serious nature of the offence, it would be entirely inappropriate to impose any kind of suspended term of imprisonment. The appellant remains eligible for parole, and the sentence should be backdated to commence on 9 January 2017.
Orders
The orders we would make are as follows:
1.Leave to appeal is granted on ground 2.
2.Leave to appeal is refused on grounds 1 and 3.
3.The appeal is allowed.
4.The conviction for the offence of manufacturing a prohibited drug in a circumstance of aggravation is set aside and substituted with a conviction for an offence of attempted manufacture of a prohibited drug in a circumstance of aggravation.
5.The appellant's application to adduce additional evidence filed 31 July 2017 is dismissed.
6.The appellant's application to adduce additional evidence filed 19 March 2018 is allowed.
7.The sentence imposed by Goetze DCJ on 18 April 2017 stands.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICES MURPHY & MAZZA11 SEPTEMBER 2018
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