Weggers v The State of Western Australia

[2014] WASCA 57

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   WEGGERS -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 57

CORAM:   MARTIN CJ

McLURE P
BUSS JA

HEARD:   2 OCTOBER 2013

DELIVERED          :   19 MARCH 2014

FILE NO/S:   CACR 61 of 2013

BETWEEN:   CHRISTOPHER PAUL WEGGERS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :BRADDOCK DCJ

File No  :IND 972 of 2012

Catchwords:

Criminal law - Appeal against conviction - Attempt to manufacture a prohibited drug - Whether open to the jury to conclude that appellant did an act more than merely preparatory to the commission of the offence - Whether verdict unreasonable - Whether it is necessary for the process of manufacture to have commenced for an attempt to have been committed - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Attempts Act 1981 (UK), s 1
Criminal Code (WA), s 4
Criminal Code Amendment Act (No 2) 1987 (WA)
Drug Misuse and Trafficking Act 1985 (NSW)
Misuse of Drugs Act 1981 (WA), s 6, s 33
Poisons Act 1964 (WA)

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr B S Hanbury

Respondent:     Mr L M Fox

Solicitors:

Appellant:     Beau Hanbury, Barrister & Solicitor

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469

Baini v The Queen [2013] VSCA 157

Commissioner of Stamp Duties (NSW) v Permanent Trustee Co Ltd (1987) 9 NSWLR 719

Deutsch v The Queen [1986] 2 SCR 2

Director of Public Prosecutions v Stonehouse [1978] AC 55; [1977] 2 All ER 909

Federal Commissioner of Taxation v Jack Zinader Pty Ltd [1949] HCA 42; (1949) 78 CLR 336

Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Marshall v Director‑General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603

McKeagg v The Queen [2006] WASCA 26

McNamara v Consumer Trading and Tenancy Tribunal [2005] HCA 55; (2005) 221 CLR 646

McNicol v Pinch [1906] 2 KB 352

Milenkovski v The State of Western Australia [2004] WASCA 85

Ogden Industries Pty Ltd v Lucas [1970] AC 113; (1968) 118 CLR 32

R v Barker (1924) NZGLR 393

R v BD [2001] NSWCCA 184

R v Bennett [2002] VSCA 226

R v Chellingworth [1954] QWN 35

R v Cline (1956) 115 CCC 18

R v De Silva [2007] QCA 301

R v English (1993) 10 WAR 355

R v Geddes (1996) 160 JP 697; [1996] Crim LR 894

R v Hill [2010] ACTSC 18

R v McCoy [2001] NSWCCA 255; (2001) 51 NSWLR 702

R v Nguyen [2010] HCA 38; (2010) 242 CLR 491

R v Randylle [2006] SASC 318; (2006) 95 SASR 574

R v Tennant (No 2) [2010] SASCFC 26

R v Williams; Ex parte Minister for Justice and Attorney-General [1965] Qd R 86

Re Avory [2003] SASC 430; (2003) 87 SASR 392

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

Thomas v The Queen (1993) 67 A Crim R 308

Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Table of Contents

Martin CJ's reasons................................................................................................................. 5

Summary
The charge and relevant statutory provisions
The trial
The ground of appeal
Legislative history
The Western Australian cases

Milenkovski v The State of Western Australia
McKeagg v The Queen

Other Australian decisions

R v Bennett
R v BD

English authorities
The proper construction and effect of s 4 of the Criminal Code
McLure P's reasons................................................................................................................ 25
Buss JA's reasons.................................................................................................................... 29
The evidence at trial
The State's case at trial
The appellant's case at trial
The critical issue at trial
The ground of appeal
The approach of this court to a ground of appeal which alleges that a verdict of guilty, on which a conviction is based, is unreasonable or cannot be supported
The ground of appeal:  the appellant's submissions
The ground of appeal:  the State's submissions
The ground of appeal:  the relevant scheme of the Act
The ground of appeal:  s 4 of the Code
The ground of appeal:  manufacturing a prohibited drug contrary to s 6(1)(b) of the Act
The ground of appeal: attempting to manufacture a prohibited drug contrary to s 6(1)(b) read with s 33(1) of the Act
The ground of appeal:  its merits

Conclusion

MARTIN CJ: 

Summary

1. The appellant, Mr Christopher Paul Weggers, was convicted of attempting to manufacture methylamphetamine, contrary to s 6(1)(b) and s 33(1) of the Misuse of Drugs Act 1981 (WA) (MDA), after trial by judge and jury in the District Court of Western Australia. He was granted leave to appeal from that conviction. There is only one ground of appeal. He contends that the evidence adduced at trial was incapable of establishing that he had committed any act that was more than merely preparatory to the commission of the offence of manufacturing methylamphetamine.

2. The State conceded that the appeal should be allowed both in written submissions and at the hearing of the appeal.  However, for the reasons which follow, that concession should not be accepted and the appeal should be dismissed.

The charge and relevant statutory provisions

1. The indictment presented against Mr Weggers alleged that on 20 December 2011 at Rockingham he attempted to manufacture a prohibited drug, namely methylamphetamine, contrary to s 6(1)(b) and s 33(1) of the MDA.

2. Section 6(1)(b) of the MDA relevantly provides that a person who manufactures or prepares a prohibited drug commits a crime except when authorised to do so either under the MDA or under the Poisons Act 1964 (WA). Methylamphetamine is a prohibited drug, and there is no suggestion that Mr Weggers had any authority to manufacture or prepare that drug.

3. Section 33 of the MDA provides that a person who attempts to commit an offence against the Act commits an offence and is liable on conviction to the same penalty to which a person who commits the principal offence is liable.

4. The two sections operate to create the offence with which Mr Weggers was charged - namely, the offence of attempting to manufacture a prohibited drug, namely, methylamphetamine.

5. The MDA makes no attempt to define the actions or circumstances which constitute an attempt to commit an offence contrary to that Act. However, s 4 of the Criminal Code (WA) provides:

   4.       Term used: attempt to commit offence

   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.

6. It is apparent that the MDA forms part of a legislative scheme for the codification of the laws of Western Australia with respect to criminal offences. The Criminal Code is, of course, a central part of that legislative scheme.  In the absence of any attempt within the MDA to define what is meant by the expression 'attempt to commit an offence', it should be inferred that the legislature intended the meaning given to that expression by the Criminal Code to apply - see Commissioner of Stamp Duties (NSW) v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, 723 ‑ 724 (Kirby P); Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119 [50]; (2010) 41 WAR 105 (Buss JA, Owen JA agreeing); R v Tennant (No 2) [2010] SASCFC 26 [16]. Both parties to the appeal presented their arguments on this assumption.

The trial

1. The prosecutor commenced his opening remarks to the jury this way:

   Mr Weggers, in the early afternoon of 20 December 2011, spent his day preparing to manufacture methylamphetamine.  He was purchasing and collecting materials and chemicals needed to manufacture methylamphetamine.  His last stop was his home address at 36 Lewington Street in Rockingham.  With a car fully stocked with the chemicals, tools and some of his own clothing, Mr Weggers left home with the intention of manufacturing a prohibited drug.  To use a boating analogy, the ship was loaded with Mr Weggers and all of the chemicals and all of the equipment and the ship sailed, it left port. Mr Weggers was prevented from going any further.  He was blown off course, ladies and gentlemen.  Police stopped him.  Police stopped the car full of equipment, full of all the chemicals required to manufacture methylamphetamine and he was arrested.  His plan was stopped (ts 25).

2. So, the prosecutor clearly and explicitly put to the jury that they should conclude that Mr Weggers was travelling from his home to a place at which he was proposing to manufacture methylamphetamine armed with all the equipment and materials needed to achieve that purpose, at the time when the vehicle in which he was travelling was stopped by police.

3. That proposition was reiterated later in the prosecutor's opening address, when he put to the jury the basis upon which the State would contend that Mr Weggers' actions constituted an attempt to commit the offence of manufacturing methylamphetamine.  He stated:

   Now, the acts of the accused must amount to more than mere preparation.  Acts immediately connected to the offence are to be considered attempts to commit it. Now, the State case is the act of the accumulation and aggregation of all the raw material required to manufacture methylamphetamine, storing all of the material required to manufacture the methylamphetamine in a mobile drug laboratory all in the same location - and in this case the car - and having the knowledge and skill to manufacture the methylamphetamine are acts immediately connected to the manufacture process. This is the first step in the manufacture of methylamphetamine in circumstances where the accused intended to manufacture the methylamphetamine.  Now, Mr Weggers throughout the day either alone or with others packed the car with property including chemicals and apparatus to manufacture methylamphetamine. His last stop was his home.  And with the car loaded with everything required to manufacture the methylamphetamine, including some of his clothing, he set off to do exactly that.  The accused was actively participating in this offence.  But for the police stopping the vehicle when they did, the manufacture of methylamphetamine would have been carried out (ts 32).

4. Four witnesses were called by the prosecution.  Constable Parker was one of the police officers who apprehended the vehicle in which Mr Weggers was travelling on the afternoon of 20 December 2011.  Her evidence was to the effect that the vehicle in question was first seen at 36 Lewington Street, Rockingham.  She and her partner then patrolled streets in the area waiting to see if the vehicle was leaving the premises.  When the vehicle left the premises in Lewington Street, they followed it and caused the driver to pull over.  Mr Weggers was in the front passenger seat of the vehicle.  The driver of the vehicle was the person registered as its owner.  Constable Parker observed a number of items in the back seat of the vehicle.  She saw a number of big white tubs with a capacity of perhaps 20 litres.  She also saw some clear tubing on the back seat of the vehicle, and piping that appeared to be made of copper.  The clear tubing had a hose connector on one end.

5. The driver of the vehicle consented to police searching the vehicle, which they did.  A number of items were found in the boot of the vehicle, and in a bag found in the foot well of the front passenger seat, where Mr Weggers had been sitting.  At one point Mr Weggers said words to the effect that the materials were, 'just stuff for the house'.

6. The bag found in the foot well of the front passenger seat contained five containers of caustic soda and other bottles which contained various chemicals or liquids.  Mr Weggers was then arrested and cautioned.  Police then undertook a more thorough search of the vehicle.

7. In the course of that search, additional materials were found including a bag of fertiliser, a gas bottle apparently containing LPG gas, filters of a kind ordinarily used with a coffee machine and various other items.

8. Constable Parker was not cross‑examined. 

9. The next witness called by the prosecution was Detective Kukura.  At the relevant time he was attached to the organised crime squad.  His duties included the investigation of clandestine drug laboratories.  He gave evidence to the effect that in his experience the most common method used for the production of methylamphetamine in clandestine settings was the method called the Birch reduction method, known more colloquially as the Nazi method, a process that does not require a heat source, nor laboratory grade glassware.

10. Detective Kukura gave evidence to the effect that at around 6.00 pm on 20 December 2011 he was called to attend the place in Rockingham at which Mr Weggers had been apprehended.  He attended in company with Ms Hannah Crisp, a chemist from the Chemistry Centre of Western Australia.  After undertaking a safety assessment in relation to the materials that were on site, a search was undertaken which was video recorded.  An edited version of the recording was played to the jury.

11. During cross‑examination, counsel for Mr Weggers drew attention to a receipt from a retail outlet known as Barbecues Galore which was amongst the items found in the vehicle, and which established that the gas bottle had been filled with gas at about 1.30 pm that day.

12. Detective Kukura was also asked in cross‑examination about a coffee percolator, which was amongst the materials found in the vehicle.  He gave evidence to the effect that coffee percolators and coffee grinders were often used in the first phase of manufacture of methylamphetamine; grinders can be used to reduce pseudoephedrine tablets down to a fine powder, and percolators can be used as a glass vessel for chemical extraction during the process of manufacture.

13. Ms Hannah Crisp was called, and gave evidence of her qualifications as a chemist, and of her experience in the investigation of clandestine drug laboratories.  Her evidence was to the effect that everything required to manufacture methylamphetamine was present at the vehicle at the time she inspected it during the afternoon and evening of 20 December 2011.

14. Ms Crisp expressed the view that the presence of chemicals that could be used to make ammonia, along with batteries containing lithium and tablets containing pseudoephedrine indicated to her that the method likely to be used to manufacture methylamphetamine utilising the materials she had seen was the method commonly known as the Nazi method but more properly described as the Birch reduction method.  She then described that method to the jury, with the aid of a flow chart which depicted the process.  As the methodology described by Ms Crisp is publicly available on the internet and elsewhere, there is no reason not to explain that process in these reasons.

15. Ms Crisp's evidence was to the effect that the manufacturing process involves three distinct stages.  The first stage involves extracting pseudoephedrine from cold and flu tablets.  The second stage involves converting the pseudoephedrine into methylamphetamine.  The third stage involves converting the methylamphetamine into methylamphetamine powder ready for use.

16. Cold and flu tablets were amongst the items found in the vehicle.  Ms Crisp gave evidence to the effect that a common method for extracting pseudoephedrine from such tablets would be to crush them and then mix them with water and caustic soda.  Then a solvent such as toluene, that would not mix with water, would be added, and would float on top of the water.  The pseudoephedrine in the cold and flu tablets would then dissolve, becoming a liquid which would in turn dissolve into the solvent layer leaving the residue in the bottom layer of liquid.  The top layer of liquid, containing the pseudoephedrine, can then be ladled off into another container.  Toluene was found in the vehicle in which Mr Weggers was travelling.

17. Ms Crisp confirmed that cold and flu tablets containing pseudoephedrine had been found in the vehicle.  She also confirmed that batteries containing lithium were found in a coca cola cup within the vehicle, and that distilled water and caustic soda containers had also been found.  Ms Crisp gave evidence to the effect that caustic soda is used in a number of stages in the process - first to remove the pseudoephedrine from the cold and flu tablets, but also in the second stage of the process because it is one of the products used in a chemical reaction which produces ammonia gas during that second stage of the process.

18. Ms Crisp gave evidence to the effect that in order to convert the pseudoephedrine into solid form the mixture of toluene and pseudoephedrine could either be mixed with ammonia liquid and lithium metal, or alternatively be extracted by bubbling hydrogen chloride gas through the liquid.  Hydrogen chloride gas can be produced when battery acid, which is sulphuric acid, is mixed with table salt.  Sulphuric acid is contained in a drain cleaning product called Mo‑Flo.  Mo‑Flo was found within the vehicle in which Mr Weggers was travelling.

19. Ms Crisp gave evidence to the effect that the acid and table salt would commonly be mixed in a sealed container such as a coca cola bottle, to which a lid with tubing inserted would be applied, through which the hydrogen chloride gas would emerge.  As the gas bubbles through the liquid containing pseudoephedrine, pseudoephedrine hydrochloride is created, which takes a powder form.  The powder can then be collected by pouring the liquid mixture through a filter or a paper towel.  Ms Crisp gave evidence to the effect that a coffee filter would be appropriate for this purpose, of the kind found in the vehicle in which Mr Weggers was travelling.  Her evidence was also to the effect that a funnel could be used for the purposes of filtration, and a funnel was found in the vehicle in which Mr Weggers was travelling.

20. Ms Crisp gave evidence to the effect that ammonia gas could be produced by mixing a fertiliser containing ammonium sulphate and caustic soda with a little water in a sealed container, from which the gas could be extracted through tubing.  Further, Ms Crisp gave evidence to the effect that analysis of the fertiliser found in the vehicle in which Mr Weggers was travelling showed that it contained ammonium sulphate.

21. Ms Crisp gave evidence to the effect that liquid LPG can be used to convert ammonia gas into liquid form, by inverting a barbeque gas cylinder and opening the tap, allowing liquid to leave the cylinder.  The liquid would then be collected in a bucket through which the ammonia gas is then passed in a tube in order to cool the gas to the point at which it will become liquid.  She stated that commonly hosing would be attached to the gas cylinder with electrical tape of some kind, and noted that there was grey electrical tape around the opening of the gas cylinder found in the vehicle in which Mr Weggers was travelling.

22. Ms Crisp went on to describe the next stage in the process, which involves collecting the ammonia in liquid form in a glass vessel, such as the glass coffee percolator found in the vehicle in which Mr Weggers was travelling.  The ammonia is then mixed with the pseudoephedrine, either in liquid form or in powder form, and lithium metal.  Lithium metal is found inside batteries of the kind that were found in the vehicle in which Mr Weggers was travelling.  Those items combined will cause a chemical reaction which will create methylamphetamine in liquid form.

1. Ms Crisp described the next stage in the process, which involves converting the methylamphetamine in liquid form into a powder, which is carried out in much the same way as the pseudoephedrine is extracted in the first stage of the process.  So, water is added and then a solvent such as toluene applied, in which the liquid methylamphetamine would dissolve, leaving other materials dissolved in the water.  The solvent containing the methylamphetamine is then separated from the water, and again hydrogen chloride gas bubbled through the solvent and methylamphetamine mixture so as to produce methylamphetamine powder.

2. Ms Crisp stated that in her experience it was quite common for the lid used to seal the container in which the hydrogen chloride was created to contain two tubes, one for the extraction of the hydrogen chloride gas, and one to enable air to be pushed into the container so as to force the hydrogen chloride gas from the container.  A lid into which two tubes had been inserted was found amongst the materials in the vehicle in which Mr Weggers was travelling.

3. After the hydrogen chloride has been used to convert the methylamphetamine into its solid form, the powder produced is then collected using filter paper, and dried.

4. Ms Crisp gave evidence to the effect that clandestine laboratories had been found in many locations, including in remote bushland, houses, or the boots of motor vehicles.  She confirmed that because the process did not require a heat source or proper laboratory glassware, the materials required were readily affordable and highly transportable.

5. Ms Crisp also observed that she had attended laboratories where there had been fires on a number of occasions.  She testified that the process of manufacture could be undertaken relatively quickly, and completed within a couple of hours.

6. During cross‑examination Ms Crisp was asked questions relating to the lid into which two tubes had been inserted and which was found in the vehicle in which Mr Weggers was travelling.  Her evidence was to the effect that an apparatus of that kind would be used in the process of generating hydrogen chloride gas, which would be extracted through one of the tubes, with air being injected into the container through another of the tubes so as to expedite the process of extraction.

7. The last witness called by the prosecution was Constable Sadlier, a forensic crime scene examiner.  She gave evidence of the analysis of fingerprints found on items within the motor vehicle in which Mr Weggers was travelling.  Her evidence was to the effect that fingerprints found on the coffee plunger within the vehicle matched Mr Weggers' fingerprints.

8. The final component of the State's case involved the prosecutor reading to the jury, by consent, a statement of the circumstances giving rise to Mr Weggers earlier conviction for attempting to manufacture methylamphetamine.  Generally speaking, those circumstances were to the effect that at about 3.00 am on 20 July 2010 police attended 36 Lewington Street, Rockingham as a result of an explosion and fire which occurred in and around the rear shed located at those premises.  I digress to observe that these are the same premises at which police first noticed the vehicle in which Mr Weggers was subsequently apprehended on 20 December 2011.  Mr Weggers and others were found at the scene of the fire.  Also found was a 10 litre tub containing ammonium sulphate and caustic soda which was generating ammonia gas which was being converted into a liquid in coiled tubing.  The materials found were consistent with the production of methylamphetamine using the Birch reduction method.  Also found in the shed at the rear of 36 Lewington Street, Rockingham on 20 July 2010 were containers of caustic soda, both full and empty, fertiliser containing ammonium sulphate, batteries containing lithium, empty lithium battery packets, sacks of salt, empty packets of pseudoephedrine tablets, filter papers, glass jars, and a plastic bottle containing sulphuric acid.  In the rear yard, Mo‑Flo sulphuric acid and a bottle that had been converted to a hydrogen chloride gas generator were also found.

9. A search of Mr Weggers' utility in July 2010 revealed a wallet which contained a partial list of items required to manufacture methylamphetamine and a container of caustic soda.

10. After the prosecution closed its case, counsel on behalf of Mr Weggers made a submission to the effect that there was no case to answer.  That submission was rejected.  Mr Weggers then elected not to give evidence.  Following the addresses of counsel and the trial judge and the deliberations of the jury, a verdict of guilty was returned.

The ground of appeal

1. As I have noted, there is only one ground of appeal. Consistently with s 30(3)(a) of the Criminal Appeals Act 2004 (WA), the ground asserts that 'the verdict of guilty is unreasonable or cannot be supported by the evidence'. Particulars to the ground assert that 'the evidence did not establish that there was an "attempt" within the meaning of s 4 of the Criminal Code 1902'.

2. The oral and written argument advanced in support of the appeal did not contest the proposition that it was open to the jury to be satisfied beyond reasonable doubt that Mr Weggers intended to manufacture methylamphetamine, or that he had begun to put his intention into execution. The argument was advanced on the basis that the evidence did not enable the jury to find that he had begun to put his intention into execution by doing any act that was more than merely preparatory to the commission of the offence of manufacturing methylamphetamine. As I have noted, the State was prepared to concede the appeal put on this basis. As all parties appreciated, that concession was not determinative because, under s 30(3)(a) of the Criminal Appeals Act, it is the opinion of this court which determines whether or not the appeal must be allowed.

Legislative history

1. Prior to the codification of the criminal law of Western Australia by the passage of the Criminal Code Act 1902 (WA), a number of different tests had been propounded at common law for the purpose of ascertaining whether or not an offence had been attempted. Over time, the weight of authority at common law favoured the 'proximity test' - see Director of Public Prosecutions v Stonehouse [1978] AC 55; [1977] 2 All ER 909, 917 ‑ 918 (Diplock LJ).

2. Section 4 of the Criminal Code, as enacted, provided:

   When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, 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 notion 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.

3. The various tests which have been propounded at common law were replaced, for the purposes of the law of England and Wales, by s 1 of the Criminal Attempts Act 1981 (UK).  That section provides:

   If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.

4. This provision attracted the attention of the then Mr Michael Murray QC, Crown Counsel, at the time he conducted a general review of the Criminal Code at the request of the then Attorney General. In his report of that review, Mr Murray QC referred to s 4 of the Criminal Code, which remained in the terms in which it had been enacted, in the following terms:

   The section defines what the Code means by an attempt to commit an offence, and it does so in terms which are rather complex.  Certainly the section creates difficulties when the judge has to explain the law to a jury.  Yet the concept I think can be simply expressed, as has been done recently in the UK in the Criminal Attempts Act 1981, upon which legislation I base the recommendation that in the first paragraph of the section the words 'begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act,' should be deleted and replaced with 'does an act which is more than merely preparatory to the commission of the offence':  M Murray, The Criminal Code: A General Review (1980) 7 .

5. Section 4 was enacted in its current form by the Criminal Code Amendment Act (No 2) 1987 (WA). The amendments effected by that Act were based in large part upon the recommendations made by Mr Murray QC. The Second Reading Speech described the amendment to s 4 of the Criminal Code in these terms:

   The present definition of an attempt in section 4 of the Code is cumbersome, and tends to make the task of a jury more difficult than necessary.  It is proposed to amend the definition while preserving the existing effect.  The model followed is the definition in the Criminal Attempts Act of the United Kingdom.

   Western Australia, Parliamentary Debates, Legislative Council, 24 November 1987, 6309 (J M Berinson)

6. Although s 4, in its current form, uses some of the terminology found in s 1 of the Criminal Attempts Act 1981, there are a number of material distinctions between the two provisions. Perhaps the most material distinction, for the purposes of this case, is the requirement, contained within s 4 of the Criminal Code but not within s 1 of the Criminal Attempts Act 1981, to the effect that the person must have begun to put his intention into execution which, in s 4 of the Criminal Code, provides the context for the reference to 'an act that is more than merely preparatory to the commission of the offence'.

7. Because of this and other material differences between the two provisions in accordance with the general principles of statutory construction, I do not accept the submission made by all parties in this case, to the effect that particular weight and attention should be given to the authorities dealing with the application of s 1 of the Criminal Attempts Act 1981 when considering the operation and effect of s 4 of the Criminal Code. Rather, it seems to me to be preferable to give primary attention to the authorities dealing with the proper construction and effect of s 4 of the Criminal Code in this jurisdiction, supplemented, where appropriate, by decisions in other Australian jurisdictions and in England and Wales, to the extent that decisions in those jurisdictions shed light upon the proper construction and effect of s 4, having regard to any material differences in the relevant statutory provisions:  Ogden Industries Pty Ltd v Lucas [1970] AC 113; (1968) 118 CLR 32, 127; McNamara v Consumer Trading and Tenancy Tribunal [2005] HCA 55; (2005) 221 CLR 646, 661; Marshall v Director‑General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603, 632 – 633 (McHugh J)

The Western Australian cases

Milenkovski v The State of Western Australia

1. In Milenkovski v The State of Western Australia [2004] WASCA 85 the appellant had been charged and convicted of attempting to possess a drug with intent to sell or supply contrary to s 6(1)(a) of the MDA. One ground of appeal against that conviction was in essentially the same terms as the ground of appeal in this case, in that it was contended that it was not open for the jury to conclude that the appellant had done any act that was more than merely preparatory to the commission of the offence.

2. The prosecution case relied upon a number of intercepted telephone conversations with the appellant.  It was contended that those telephone conversations established that the appellant went to Perth airport for the purpose of meeting a courier carrying a prohibited drug with the intention of taking possession of that drug.  In fact, the courier was intercepted by police at the time he arrived in Perth, and the prohibited drug which he was carrying was taken from him, and replaced with substitute packages of innocuous substances.  The courier was met at the airport by the appellant and driven away.  Some time thereafter, the appellant and the courier were apprehended by police, at which time the substitute packages were still in the possession of the courier.

3. Miller J (Murray & Wheeler JJ agreeing), referred to s 4 of the Criminal Code in these terms:

   The words of the Code are clear.  An attempt to commit an offence is established if it is proven that the offender (a) had an intention to commit an offence; (b) began to put that intention into execution by doing an act that is more than merely preparatory to the commission of the offence, and (c) did not fulfil his intention to the extent of committing the offence.

   It can be accepted that the acts relied on as constituting the attempt must be proximate to the commission of the offence, that is, immediately and not remotely connected with the completed offence.  Perhaps it can also be accepted (as Lord Diplock put it in DPP v Stonehouse) that the offender 'must have crossed the Rubicon and burnt his boats,' but in the end it is a question of fact whether the offender had an intention to commit the offence, began to put that intention into execution by doing an act more than merely preparatory to the commission of the offence, and did not fulfil his intention to the extent of committing the offence [22] ‑ [23].

4. In that case the court concluded that the telephone intercept material was capable of satisfying the jury to the requisite standard that the appellant attended the airport for the purpose of taking possession of the prohibited drug which he knew was to be carried by the courier, which actions were, in the view of the court, more than merely preparatory to the commission of the offence.

5. So, in Milenkovski, it was held that the acts of travelling to the airport, meeting and leaving with a courier believed to be carrying a prohibited drug were acts which were more than merely preparatory to the commission of the offence of possessing a prohibited drug, and were sufficient to sustain a conviction for attempting to possess the drug.

McKeagg v The Queen

1. In McKeagg v The Queen [2006] WASCA 26, the appellant was charged with one count of manufacturing methylamphetamine, and another count of attempting to manufacture methylamphetamine. After trial by judge and jury he was convicted on both counts. The evidence in relation to the first count, of manufacturing methylamphetamine, established that the appellant had used a false name to import a 25 kg container of a substance called ma huang. Ma huang was not a prohibited import, but can be used to create precursor drugs, ephedrine and pseudoephedrine, which are used in the manufacture of methylamphetamine. The Court of Appeal concluded that the evidence was sufficient to satisfy the jury that such precursor drugs had in fact been manufactured by the appellant from the ma huang which had been imported. Liquid containing ephedrine and pseudoephedrine was found on the property occupied by the appellant, together with various items of laboratory equipment.

2. The evidence relating to the second count, of attempting to manufacture methylamphetamine, established that the appellant had caused four 25 kg containers of ma huang to be imported into Australia and had arranged for that material to be transported to his home, where he accepted their delivery.  When a search warrant was executed at the appellant's home, the four containers were found intact.  So, the acts of the appellant which were said to constitute the attempt to manufacture methylamphetamine were the acts of arranging for the importation of ma huang, and for its transport to the appellant's premises, and his acceptance of delivery.

3. In relation to count 1, the trial judge directed the jury that it was sufficient to establish that count if the State had satisfied the jury to the requisite standard that the appellant had engaged in the process of manufacture with the intention of making methylamphetamine.  This court held that the direction was erroneous, because, on its proper construction, the offence of manufacturing methylamphetamine created by s 6 of the MDA was not committed unless and until methylamphetamine had been created, and that merely engaging in a process directed towards the production of methylamphetamine was not sufficient to constitute commission of the offence.  Accordingly, the appellant's conviction on count 1 was quashed.  No retrial was ordered, but a conviction of attempting to manufacture methylamphetamine was substituted on that count.

4. In relation to the second count of attempting to manufacture methylamphetamine, the trial judge directed the jury with respect to the relevant portions of s 4 of the Criminal Code.  He concluded his directions on the second count in the following terms:

   Was the collecting of the four drums of what the State says Mr McKeagg thought to be ma huang and the taking of them to his home where the laboratory was situated out the back in the shed, the first step in the manufacture of methylamphetamine in circumstances where he intended to manufacture methylamphetamine [45]?

5. This court held that there was no error in the direction given in those terms and that there was 'no possibility that there has been a miscarriage of justice in the guilty verdict returned on count 2' [51] (Murray AJA, Roberts‑Smith & Pullin JJ agreeing).

6. So, in McKeagg, this court held that arranging for the importation of a substance from which precursor drugs could be manufactured, with the intention of using that substance in the process of manufacturing methylamphetamine, and arranging for, and taking delivery of that substance were acts which were sufficient in law to constitute the offence of attempting to manufacture methylamphetamine.  Implicit in that ruling is the conclusion that those acts were 'more than merely preparatory' to the commission of the substantive offence.

Other Australian decisions

R v Bennett

1. In R v Bennett [2002] VSCA 226, the Court of Appeal held, in a joint decision, that the act of sending by facsimile an order for the delivery of 25 kg of pseudoephedrine to a specified address was sufficient to constitute the act of attempting to possess that drug, because it was an act which was 'more than merely preparatory'. In the view of the court, 'the lodgment of a written order to obtain the substance could not be appropriately described as a preparatory step, but rather as a necessary and integral part of the process of doing so'.

2. The decision in Bennett, and a number of other Australian cases including R v Hill [2010] ACTSC 18 establish that legislative provisions such as s 4 of the Criminal Code, which provide that an attempt can be committed by the commission of an act which is 'more than merely preparatory' to the commission of the substantive offence are inconsistent with, and do not reflect, any of the tests which had evolved at common law, including in particular tests formulated in terms of requiring the offender take 'the last act' prior to commission of the offence, or acts which are 'unequivocally referrable' to the commission of the substantive offence:  Hill [47] (Gray J). It follows that it is not appropriate to rely upon those common law tests in order to determine what acts contribute an attempt.

R v BD

1. Each of the appellant and respondent placed significant reliance upon the decision of the Court of Criminal Appeal of New South Wales in R v BD [2001] NSWCCA 184. In that case the respondent was driving a vehicle when stopped by police for the purpose of a random breath test. A search of the respondent's vehicle revealed a total of 27,180 Sudafed tablets (which contain pseudoephedrine), a 500 ml bottle of orthophosphoric acid, and a bag containing red phosphorous (a material commonly used in the manufacture of methylamphetamine). Other items found included articles of glassware commonly used in chemistry laboratories. However, not all of the chemicals necessary for the production of methylamphetamine were found in the vehicle.

1. Significantly, the respondent in that case was not charged with attempting to manufacture methylamphetamine. Rather, he was charged with an offence created by s 6 of the Drug Misuse and Trafficking Act 1985 (NSW) prohibiting the taking of any step in the process of manufacture of a prohibited drug.

2. The trial judge ruled that the evidence was incapable of establishing that the respondent had taken any step in the process of manufacture of methylamphetamine.  The Director of Public Prosecutions submitted a question of law to the Court of Criminal Appeal, essentially asking whether that ruling was correct.

3. In the course of the ruling of the trial judge, and in the reasons of Bell J (Greg James J & Stein JJ agreeing), a distinction is drawn between acts which were merely preparatory to the act of manufacture, and acts which constituted a step in the process of manufacture. However, it is significant that this distinction was not occasioned by any requirement to construe a statutory provision referring to acts 'more than merely preparatory', and no reference was made to cases dealing with the proper construction of that expression in the context of provisions relating to attempted offences. For that reason, contrary to the submission of the parties, this decision is of limited assistance in the resolution of the question in this appeal, which concerns the proper construction and effect of s 4 of the Criminal Code.

4. That conclusion is reinforced by the fact that the reasoning of the trial judge and the Court of Criminal Appeal in BD turned critically upon the meaning given to the words used in the statute creating the offence which, relevantly, were 'takes, or participates in, any step in the process of manufacture'.  In that context, reference was made to the decision in Federal Commissioner of Taxation v Jack Zinader Pty Ltd [1949] HCA 42; (1949) 78 CLR 336 where Dixon J adopted Darling J's definition of manufacture in McNicol v Pinch [1906] 2 KB 352, 361:

   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 (343).

5. This approach to the meaning properly given to the term 'manufacture' contributed to the reasoning adopted by this court in McKeagg when it set aside the appellant's conviction for manufacturing methylamphetamine, given that he had not completed the process of 'manufacture' by creating any methylamphetamine [17].

6. The question addressed and answered in BD was whether the evidence established that the respondent had taken a step in the process of manufacture.  That is a very different question to the question which is posed in this case.  Having regard to the statutory provisions under consideration in BD, it is not surprising that the court concluded that the acquisition and transport of some of the materials and chemicals required to manufacture methylamphetamine did not constitute 'a step in the process of manufacture'. However, that conclusion has little significance to the application of s 4 of the Criminal Code to the facts which were open to the jury to find in this case.

7. In their submissions the parties to this appeal referred to and relied upon other Australian decisions concerned with the offence of taking part in the manufacture of a prohibited drug, such as R v McCoy [2001] NSWCCA 255; (2001) 51 NSWLR 702; Thomas v The Queen (1993) 67 A Crim R 308; Re Avory [2003] SASC 430; (2003) 87 SASR 392; and R v Randylle [2006] SASC 318; (2006) 95 SASR 574. Although the facts of some of those cases bear some similarity to the facts of the present case, the relevant statutory provisions are, for the reasons I have set out above, quite different. In those cases, the essential question was whether the evidence established that the accused had taken a step in the process of manufacture given the terms and effect of the relevant statutes. In some of those cases a distinction is drawn between acts which are described, in general terms, as preparatory to the process of manufacture, and acts which can constitute a step in the process. However, as in BD, none of those cases involve the proper construction and effect of a provision like s 4 of the Criminal Code, nor are any of the cases on that subject relied upon in the cited decisions.  Rather, in each case, the focus was, quite properly, upon the question of whether the evidence established that the accused had taken a step in the process of manufacture.  The answer to that question depended, again quite appropriately, upon the circumstances of each particular case.  The conclusions drawn in those cases, based on their particular circumstances, are of little or no assistance in the resolution of the question which arises in this appeal.

English authorities

1. As I have already noted, the parties to this appeal placed particular reliance upon English authorities.  For the reasons I have given, I reject the contention that those authorities are of particular significance as a result of the legislative history of s 4 of the Criminal Code.  Nevertheless, because s 1 of the Criminal Attempts Act 1981 contains language which corresponds in some respects with s 4 of the Criminal Code, it is appropriate to pay attention to decisions dealing with that section.

2. The parties placed particular reliance upon a decision of the Court of Appeal of England and Wales in R v Geddes (1996) 160 JP 697; [1996] Crim LR 894.  In that case, the Court of Appeal observed, in respect of s 1 of the Criminal Attempts Act 1981:

   The cases show that the line of demarcation between acts which are merely preparatory and acts which may amount to an attempt is not always clear or easy to recognise.  There is no rule of thumb test.  There must always be an exercise of judgment based on the particular facts of the case (705).

   That observation appears to me, with respect, to be equally apt to s 4 of the Criminal Code of Western Australia.  However, the court went on:

   It is, we think, an accurate paraphrase of the statutory test and not an illegitimate gloss upon it to ask whether the available evidence, if accepted, could show that a defendant has done an act which shows that he has actually tried to commit the offence in question, or whether he has only got ready or put himself in a position or equipped himself to do so (705).

3. With respect, I can see no advantage in the judicial paraphrase of statutory language used in provisions of the criminal law such as those presently under consideration.  It is the duty of the court to apply the criteria stipulated by the legislature as the criteria by which criminal liability is to be determined.  In my respectful view, it is not appropriate to restate those criteria in terms which might appear to the court to be more felicitous or more readily or conveniently applied (see:  Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 [14] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Baini v The Queen [2013] VSCA 157 [8]).

4. The danger in the judicial paraphrase of statutory criteria is, with respect, evident from the language used in Geddes.  It is easy to conceive of circumstances in which a person has formed an intention to commit an offence, and has begun to put that intention into execution by committing an act or acts which are more than merely preparatory to the commission of the offence, but who might properly be described as having 'only got ready or put himself in a position or equipped himself' to commit that offence.  One example is provided by the decision of this court in McKeagg, in which the actions of the appellant in equipping himself with a substance from which methylamphetamine could be produced was held to be sufficient to constitute an attempt within the meaning of s 4 of the Criminal Code.  That decision must be regarded as inconsistent with the dicta in Geddes to which I have referred.  The facts in Geddes are so different from the facts of the present case, that the conclusion of the court with respect to those facts is of little or no assistance.

The proper construction and effect of s 4 of the Criminal Code

1. As this court noted in Milenkovski, s 4 of the Criminal Code requires three matters to be established by the prosecution before an accused can be convicted of attempting to commit an offence. The first is that the accused had the intention of committing the offence, the second is that the accused had begun to put that intention into execution by doing an act that is more than merely preparatory to the commission of the offence, and the third is that the accused did not fulfil his intention to the extent of committing the offence [22].

2. In s 4 of the Criminal Code, the meaning properly given to the expression 'more than merely preparatory' must be assessed in its context, which requires that the relevant act was undertaken in the execution of an intention to commit the substantive offence.  As noted in Milenkovski, whether or not, in any particular case, the acts of the accused are properly characterised as the commencement of putting the offender's intention into execution, and whether they are acts which are more than merely preparatory to the commission of the offence necessarily involves questions of fact and degree that will depend upon the particular circumstances established by the evidence [23].

3. In the present case, the evidence adduced by the prosecution was capable of establishing, beyond reasonable doubt, that:

   (a)Mr Weggers knew what materials and equipment were required to manufacture methylamphetamine and how to manufacture methylamphetamine (from the circumstances of his previous conviction);

   (b)Mr Weggers had a propensity to manufacture methylamphetamine (from his previous conviction);

   (c)the materials and equipment found in the vehicle in which Mr Weggers was travelling were in his possession or under his control (some of the materials were found in a bag in the footwell of the passenger's seat in which he was sitting, and his fingerprints were found on a piece of the equipment);

   (d)the chemicals and equipment found in the vehicle in which Mr Weggers was travelling were all that was required to complete the manufacture of methylamphetamine (the evidence of Ms Crisp);

   (e)those materials and equipment had been compiled by Mr Weggers earlier that day and placed in the vehicle by him (the receipt from Barbecues Galore showed that the gas bottle had been filled a few hours before Mr Weggers was apprehended);

   (f)the vehicle in which Mr Weggers was apprehended was first seen at premises occupied by Mr Weggers, but departed from those premises (evidence of Constable Parker);

   (g)shortly after the vehicle left the premises occupied by Mr Weggers, it was found to contain all the materials and equipment necessary to manufacture methylamphetamine; and

   (h)the process of manufacturing methylamphetamine using the equipment found in the vehicle could have been completed in as little as two hours, did not require any heat source, and could have been conducted either in remote bushland or utilising the boot of a motor vehicle (evidence of Ms Crisp).

   (i)the process of manufacture carries the risk of fire or explosion (evidence of Ms Crisp and circumstances of Mr Weggers' previous conviction).

4. From these facts it was open to the jury to conclude beyond reasonable doubt that Mr Weggers intended to manufacture methylamphetamine.  It was also open to the jury to conclude beyond reasonable doubt that Mr Weggers had gone to considerable lengths to assemble all the materials and equipment necessary to complete the process of manufacture, and to assemble them in the vehicle in which he was travelling.  It was also open to the jury to conclude, beyond reasonable doubt, that the purpose of Mr Weggers' travel was to go to a place at which the process of manufacture would be undertaken, such as an area of remote bushland.  That inference was open from the fact that the vehicle was seen leaving Mr Weggers' house, and was found to containe all the materials and equipment necessary to manufacture methylamphetamine.  Given that the vehicle was going away from Mr Weggers' house, and that all that was necessary to complete the process of manufacture was present within the vehicle, the only reasonable reference open on the evidence is that the purpose of the journey was to go to a place where the process of manufacture could be completed with reduced risk of apprehension, such as an area of remote bushland.

5. As I have noted, this is the basis upon which the prosecutor opened the State's case.  He quite clearly and explicitly put to the jury that they should conclude that the purpose of the journey in the motor vehicle was to go to a place at which the process of manufacture would be undertaken, and that if the vehicle had not been apprehended the process of manufacture would have been carried out shortly thereafter.

6. In my view it is clear that the acts of acquiring and compiling all the materials and equipment necessary to manufacture methylamphetamine, placing those materials and equipment in a motor vehicle, and commencing a journey in that motor vehicle to a place at which the process of manufacture would take place with reduced risk of apprehension are acts which constitute putting the intention of

manufacturing methylamphetamine into execution, and which are more than merely preparatory to the commission of that offence.

1. On behalf of Mr Weggers it was submitted that as the substantive offence concerned the manufacture of methylamphetamine, any and all acts undertaken prior to the commencement of the process of manufacture were not more than merely preparatory to the commission of the offence.  It was contended that an attempt was not committed until the process of manufacture had commenced, for example, through the extraction of pseudoephedrine from cold and flu tablets, or the assembly of the manufacturing apparatus.  It was submitted that, in the terms of Stonehouse, the Rubicon was not crossed until the process of manufacture had actually commenced.

2. This submission might have been pertinent if Mr Weggers had been charged with an offence of taking a step in the process of manufacture of a prohibited drug (although the MDA does not create such an offence).  However even in that context the cases do not establish a hard and fast point at which a step in the process of manufacture can be said to commence (see the decision in Randylle).  At all events the submission is not consistent with the terminology used in s 4 of the Criminal Code.  That section requires, relevantly, that it be established that the accused has begun to put his intention to commit the offence into execution by acts which are more than merely preparatory to the commission of the offence, but does not specify that any specific or particular point in the process of executing the commission of an offence must be reached before the acts of the accused can be so characterised.  Whether or not the acts of a particular accused are of the character required by the section will depend upon all the facts and circumstances of the particular case and, as noted in Geddes and Milenkovski, the process of characterisation involved does not readily admit of any rules of thumb or bright lines of demarcation.  For the reasons I have given, in this case it was open to the jury to conclude that the actions of Mr Weggers were acts carried out in order to put his intention to manufacture methylamphetamine into execution and were more than merely preparatory to the commission of the offence.  The appeal must be dismissed.

3. McLURE P: I agree with the Chief Justice that the appeal should be dismissed. I wish to comment on both the history and construction of the definition of attempt in s 4 of the Criminal Code (WA) (the Code).

4. The Code definition of attempt was amended by the Criminal Code Amendment Act (No 2) 1987 (WA). Oddly, one might think, the second

reading speech for that Act states that the new (current) definition was intended to preserve the existing effect of the former definition of attempt in the Code.

1. The current Code definition of attempt was modelled on the definition in s 1 of the Criminal Attempts Act 1981 (UK) (the English Act).  The English definition was based on the recommendation of the United Kingdom (UK) Law Commission in its report Criminal Law:  Attempt and Impossibility in Relation to Attempt, Conspiracy and Incitement, 25 June 1980.

2. It is helpful to compare the terms of the former Code definition, the English definition and the current Code definition of attempt.

3. The former Code definition relevantly provided:

   When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

4. This remains the definition in Queensland (Criminal Code (Qld), s 4(1)).  The Queensland Court of Appeal has held that the act relied on as constituting the attempt must be an act immediately, not merely remotely, connected with the contemplated offence; what is done must go beyond mere preparation to commit the crime and must amount really to the beginning of the commission of the crime; but it is not necessary that the defendant should have done his best or taken the last step towards the intended offence:  R v De Silva [2007] QCA 301; R v Chellingworth [1954] QWN 35.

5. Section 1 of the English Act provides:

   If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.

6. The English provision has not been consistently construed or applied.  In 2009 the UK Law Commission reported that:

   [S]ome of the decisions of the Court of Appeal … suggest that the present offence of attempt must be interpreted unduly narrowly, with insufficient regard to the desirability of setting the liability threshold so as to encompass acts of preparation more‑or‑less immediately connected with the final conduct required to commit the intended offence (Conspiracy and Attempts, 9 December 2009 [8.10]).

7. In particular, the UK Law Commission expressed concern that the approach to attempt adopted in R v Geddes (1996) 160 JP 697 was far too narrow and therefore wrong [8.13].  The Court of Appeal in Geddes said that an accurate paraphrase of the English test was to ask whether the available evidence, if accepted, could show that a defendant has done an act which shows that he has actually tried to commit the offence in question, or whether he has only got ready or put himself in a position or equipped himself to do so.  Geddes was relied on by the appellant in this case. 

8. Although the current definition of attempt is modelled on the English provision, the text is not identical.  The Code definition of attempt relevantly 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.

9. Thus, the words 'by means adapted to its fulfilment, and manifests his intention by some overt act' in the former Code definition have been replaced by the expression 'by doing an act that is more than merely preparatory to the commission of the offence'.

10. The approach in Geddes is inconsistent with the text of the Code definition of attempt.  The language of the Code definition better captures what the UK Law Commission in 2009 identified as falling within the English provision, being:

    [T]he earlier (preparatory) conduct which could properly be regarded as part of the execution of [the defendant's] plan to commit the intended offence [8.5].  (original emphasis)

1. All acts done prior to the act or acts that constitute or are part of the elements of an offence are preparatory in the sense of preliminary or introductory to the acts that are elements of the offence.  The adjective 'merely' before the word 'preparatory' in the Code definition of attempt is an indication that not all preparatory acts are outside the definition.  'Merely' preparatory acts are acts that are purely, only, solely or wholly preparatory.  The expression 'merely preparatory' is also informed by the preceding words 'begins to put his intention into execution by doing an act that is more than merely preparatory to the commission of the offence' (emphasis added).  Thus the offender must have begun to put his intention into execution which is established by the doing of an act that is more than merely preparatory.  A preparatory act that is part of the execution (that is, carrying out) of the intended offence is within the definition.  This construction of s 4 of the Code is consistent with its application in Milenkovski v The State of Western Australia [2004] WASCA 85 and McKeagg v The Queen [2006] WASCA 26.

2. The line between overt acts that are pre and post commencement of execution may involve nice questions of judgment that will be informed by the closeness of the connection (in time and otherwise) between the preparatory act and the act(s) constituting the intended offence.

3. The position of the parties to this appeal was that there could be no attempt unless and until the appellant had commenced the manufacturing process (ts 13, 15, 27).  That is an unduly narrow application of the statutory definition of attempt.  It is sourced in case law from other Australian jurisdictions with materially different statutory provisions.  

4. It was the State case that on 20 December 2011 the appellant collected together and put into a vehicle all of the ingredients and equipment required in order to manufacture methylamphetamine using the Birch reduction method and was travelling in that vehicle to an isolated location where he would manufacture methylamphetamine when the vehicle was stopped by police.  The evidence adduced at trial is capable as a matter of law and fact of supporting the State case for the reasons given by the Chief Justice.  The fact and circumstances of the appellant's previous conviction for manufacturing methylamphetamine are strongly probative of his knowledge of how to manufacture the drug, his knowledge of the real risk of damage to his property from an explosion or fire in the course of the manufacturing process and his intention to manufacture the drug away from his home address (the location of his previous offending) using the materials he had assembled and placed in the vehicle.  By its verdict, the jury had positively rejected the appellant's explanation of events.

5. The evidence established that the appellant was deeply into the execution of his intention to commit the offence of manufacturing methylamphetamine. The appellant's acts were immediately, not merely remotely, connected with the intended offence.  Accordingly, the appellant attempted to manufacture methylamphetamine as charged.

1. BUSS JA:  This is an appeal against conviction.

2. On 16 January 2013, the appellant was convicted, after a trial in the District Court before Braddock DCJ and a jury, on one count in an indictment which alleged that, on 20 December 2011 at Rockingham, the appellant attempted to manufacture a prohibited drug, namely methylamphetamine, contrary to s 6(1)(b) read with s 33(1) of the Misuse of Drugs Act 1981 (WA) (the Act).

3. On 27 February 2013, the appellant was sentenced to 2 years 3 months' immediate imprisonment.  A parole eligibility order was made.

4. On 7 August 2013, Mazza JA ordered that the appellant be released on bail pending the determination of the appeal.

5. The State, in its written submissions (signed by the Director of Public Prosecutions, Mr J McGrath SC) and at the hearing, conceded the appeal.  The concession was properly made. 

6. I would allow the appeal, set aside the conviction and enter a judgment of acquittal.  My reasons are as follows.

The evidence at trial

1. The State called four witnesses at the trial.  The appellant did not give or adduce any evidence. 

2. The State's witnesses were Constable Bridget Parker, Detective Mathew Kukura, Ms Hannah Crisp and First Class Constable Leanne Sadlier.  I will summarise their evidence to the extent necessary to explain my reasons.

3. On the afternoon of 20 December 2011, Constable Parker and another police officer apprehended a motor vehicle in which the appellant was a passenger.  Mr Steven Michaels was registered as the owner of the vehicle.  He was driving it.  At the material time the appellant was ordinarily resident at 36 Lewington Street, Rockingham.  Constable Parker gave evidence to the effect that on the afternoon in question she saw Mr Michaels' vehicle at this address.  After she and the other police officer patrolled streets in the area for a while, Constable Parker saw Mr Michaels' vehicle leave 36 Lewington Street.  They followed the vehicle and required Mr Michaels to stop.  Police, including Constable Parker, searched the vehicle and found numerous items in the boot, on the back seat and in the footwell of the front passenger seat where the appellant had been sitting.  The items included a number of sealed (that is, unopened) blister packets of pharmaceutical medication (cold and flu tablets) containing pseudoephedrine; a barbecue gas bottle containing liquefied petroleum gas; silver tape around the nozzle of the gas bottle; five containers of caustic soda; a 20 kg bag of sulphate of ammonia fertilizer; iodised table salt; hydrochloric acid; toluene; five lithium batteries; sulphuric acid; copper tubing; plastic tubing; filter papers; a 25 litre plastic container suitable for holding chemicals; a coffee plunger; and plastic funnels.  Constable Parker said the appellant was arrested 'under suspicion of possessing items used to manufacture a prohibited drug' (ts 41).

4. Police conducted video‑recorded interviews with the appellant and Mr Michaels.  Each gave a different version of events. 

5. Mr Michaels was charged with a drug offence relating to the items found in his vehicle, but a decision was made within the office of the Director of Public Prosecutions not to proceed with the charge (ts 51).

6. The appellant said in his interview that, when the police stopped Mr Michaels' vehicle, Mr Michaels had been giving him a lift to collect his methadone medication (VROI 36, 37).  The appellant admitted he was the owner of some of the items found in the vehicle.  In particular, he admitted that:

   (a)he and a friend had obtained the barbecue gas bottle from a retailer called Barbecues Galore (VROI 37 ‑ 38);

   (b)he had filled the gas bottle with liquefied petroleum gas at Barbecues Galore on 20 December 2011, before he was apprehended by the police (VROI 29 and a tax invoice from Barbecues Galore that was tendered in evidence at the trial);

   (c)he had purchased the bag of sulphate of ammonia fertilizer from a retailer called City Farmers on 20 December 2011, before he was apprehended by the police (VROI 30 ‑ 31);

   (d)the iodised table salt was his (VROI 31); and

   (e)one of the containers of caustic soda was 'possibly' his (VROI 34). 

7. The appellant did not make any other relevant admissions.  He denied in substance that he intended to manufacture methylamphetamine (VROI 35 ‑ 36). 

8. On the State's case, the appellant told some lies during the interview about his connection with the items found in the vehicle and their intended use.  The prosecutor relied on evidence of the lies as a matter affecting the appellant's credit (ts 111).  It was not alleged that the lies constituted implied admissions against interest (ts 111). 

9. At the relevant time Detective Kukura was involved in the investigation of clandestine drug laboratories.  He gave evidence to the effect that methylamphetamine is usually manufactured illicitly by the Birch reduction or Nazi method.  This process does not require a heat source or laboratory grade glassware.  Detective Kukura produced the tax invoice from Barbecues Galore which, together with the appellant's admission, established that the barbecue gas bottle had been filled with gas at about 1.30 pm on 20 December 2011. 

10. Ms Crisp is a chemist with extensive experience in the investigation of clandestine drug laboratories.  She gave evidence to the effect that everything necessary to manufacture methylamphetamine by the Birch reduction or Nazi method was in Mr Michaels' vehicle when she inspected it on 20 December 2011 after it had been stopped by the police.  Ms Crisp gave evidence to the effect that this method for the manufacture of methylamphetamine has three distinct stages.  First, pseudoephedrine is extracted from the pharmaceutical medication.  Secondly, the pseudoephedrine is converted into a liquid containing methylamphetamine.  Thirdly, the liquid is converted into methylamphetamine powder.  Ms Crisp said the blister packets containing the cold and flu tablets were sealed.  A more detailed account of Ms Crisp's evidence is set out in the reasons of Martin CJ.

11. Constable Sadlier is a forensic crime scene examiner.  She gave evidence about the analysis of fingerprints on some of the items found in Mr Michaels' vehicle.  She said fingerprints on the coffee plunger matched the appellant's fingerprints.

12. The prosecutor tendered evidence which proved that on 11 May 2011 the appellant was convicted, on his plea of guilty, of manufacturing methylamphetamine, contrary to s 6(1)(b) of the Act.  The evidence showed that in 2010 there had been an explosion and a fire at the appellant's residence at 36 Lewington Street while he was manufacturing the drug.  The prosecutor relied on the evidence of the appellant's prior conviction and the explosion and the fire at his residence to establish that the appellant knew how to manufacture methylamphetamine and had a tendency to manufacture it (ts 111 ‑ 112).

The State's case at trial

1. The State's case at the trial, as explained by the prosecutor in his opening address, was as follows:

   (a)On 20 December 2011, before Mr Michaels' vehicle was apprehended by the police, the appellant, either alone or with others, acquired various of the items found in the vehicle.

   (b)On 20 December 2011, before the police apprehended Mr Michaels' vehicle, the appellant placed in the vehicle, while the vehicle was at his home at 36 Lewington Street, 'everything required to manufacture … methylamphetamine'. 

   (c)The appellant then 'set off' in Mr Michaels' vehicle 'to do exactly that'.

   (d)If the police had not apprehended Mr Michaels' vehicle when they did, 'the manufacture of methylamphetamine would have been carried out' (ts 32).

2. The prosecutor submitted that, in all the circumstances, the only reasonable inference was that when the appellant was seen by Constable Parker to leave 36 Lewington Street in Mr Michaels' vehicle on the afternoon of 20 December 2011, 'he was on his way to manufacture … methylamphetamine at another location' (ts 88).

The appellant's case at trial

1. The appellant's case at the trial, as explained by the trial judge to the jury in her summing up, was that the evidence relied on by the State 'was not close enough to any attempt or effort to make methylamphetamine and further that there was no intention so to do' (ts 109).

2. Her Honour had earlier dismissed defence counsel's application, made at the close of the State's case, for a ruling that the appellant had no case to answer.  The basis of the application was defence counsel's contention that 'there was no sufficient evidence of any acts sufficiently proximate to amount to an attempt to manufacture methylamphetamine' (ts 96).  Her Honour dismissed the application.  She was of the view that the evidence was sufficient 'to be put to the jury for their decision as to whether the necessary intent is established and the conduct of the [appellant] was more than merely preparatory to the commission of the offence' (ts 99).

The critical issue at trial

1. The trial judge told the jury in her summing up that 'the real dispute [in the case] comes down to whether the prosecution has satisfied you beyond reasonable doubt that on 20 December 2011 [the appellant] intended to manufacture methylamphetamine and if so had he gone beyond mere preparation' (ts 112).  Her Honour elaborated:

   That is to say, was the purchase of gas and the fertilizer and the possession of caustic soda together with the circumstance of travelling with them in the car and with other items together that were sufficient to manufacture methamphetamine a step in the manufacture in the circumstances or was it still part of the preparatory stages for the manufacture of methamphetamine (ts 112).

The ground of appeal

1. The sole ground of appeal alleges in substance that 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. The particulars of the ground state that the evidence did not establish that there was an attempt, within s 4 of the Criminal Code (WA) (the Code), to commit the offence.

2. On 15 June 2013, Mazza JA granted leave to appeal.

The approach of this court to a ground of appeal which alleges that a verdict of guilty, on which a conviction is based, is unreasonable or cannot be supported

1. By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, 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.

2. In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):

   Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does  so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).

   See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.

3. In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:

   [W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)

   See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).

4. It is a question of fact whether a conviction is unsafe or unsatisfactory.  This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand.  See SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

5. However, this court, in assessing whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations':  M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].

The ground of appeal:  the appellant's submissions

1. In his written submissions, counsel for the appellant contended that the verdict is unreasonable or cannot be supported by the evidence 'as there was no "attempt" within the meaning of' s 4 of the Code.  Counsel formulated the issue at trial and in the appeal as follows:  whether the appellant could be found guilty of the offence 'on the basis that he was transporting the necessary ingredients to manufacture methylamphetamine but had not commenced the chemical process to produce methylamphetamine'.  According to counsel, the appellant could not be found guilty of attempting to manufacture methylamphetamine 'because he had only taken preparatory steps towards the manufacture'.  His actions were not sufficient in law to constitute an attempt.

2. At the hearing:

   (a)Counsel for the appellant said the State's case at trial was that when Mr Michaels' vehicle was apprehended the appellant was 'on his way to manufacture drugs', but the appellant's case denied that this was so (appeal ts 10).

   (b)A member of the court put the following proposition to counsel for the appellant:

   So a complex and diverse range of materials had been assembled.  They were all in one place and they were in a car and maybe there was material from which the jury could infer that they were in the car for the purpose of travelling to a place where the materials could be used in isolation and in secrecy to produce the methylamphetamine … That inference was open.  Why isn’t that an action which is unequivocally referable to the commission of the offence and which is more than merely preparatory (appeal ts 19).

   Counsel for the appellant rejected the proposition.  He submitted that the appellant had merely taken preparatory steps and those steps were insufficient to constitute an attempt (appeal ts 19).

   (c)Counsel for the appellant accepted a proposition put to him by another member of the court to the effect that the appellant's submissions concerning the line of demarcation, as a matter of fact, between mere preparation and an attempt, in the context of manufacturing methylamphetamine, was whether the manufacturing process had started (appeal ts 19 ‑ 20).  That is, according to counsel, the State could not establish an attempt to manufacture methylamphetamine unless the manufacturing process had commenced (appeal ts 19 ‑ 20).

3. The propositions put to counsel for the appellant at the hearing, and either accepted or rejected by him, did not constitute in substance an abandonment by counsel of the more general allegation in the particulars to the ground of appeal that the evidence at trial did not establish that there had been an attempt, within s 4 of the Code, to manufacture methylamphetamine, contrary to s 6(1)(b) read with s 33(1) of the Act. Counsel did not say at the hearing that he was abandoning any part of the ground as particularised.

4. The State argued the appeal in its written submissions and at the hearing by reference to the ground of appeal as particularised.

The ground of appeal:  the State's submissions

1. In its written submissions, the State said there was no doubt that the appellant intended to manufacture methylamphetamine using the ingredients and equipment found in Mr Michaels' vehicle.  It was also submitted that there was no doubt that, by obtaining all of these items, the appellant had begun to put this intention into execution.  However, the appellant's acts did not amount to acts that could be said to be more than merely preparatory to the manufacture of methylamphetamine.  On that basis, the State conceded the appeal.

1. At the hearing, a member of the court put to counsel for the State the proposition that 'if it was open to the jury to find that the intention of the journey' in Mr Michaels' vehicle 'was to go to a place to put the materials together to manufacture the drug' then there would be an attempt by the appellant to manufacture methylamphetamine (appeal ts 32).  Counsel said he '[accepted] the force of [this] proposition' (appeal ts 32), but counsel emphasised there was no direct evidence as to the appellant's destination or his intention or purpose upon arrival at the destination (appeal ts 32). 

The ground of appeal:  the relevant scheme of the Act

1. Section 6(1)(b) of the Act provides, relevantly, that 'a person who manufactures or prepares a prohibited drug commits a crime'.

2. Methylamphetamine is a prohibited drug.  The words 'manufactures' and 'prepares', and cognate forms of those words, are not defined in the Act.

3. Section 33(1)(a) of the Act 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 Act does not specify the acts, matters or circumstances that constitute an attempt to commit an offence.

4. By s 7B(6) of the Act, a person who is in possession of any 'drug paraphernalia' in or on which there is a prohibited drug commits a simple offence.  The term 'drug paraphernalia' is defined in s 7B(1) to include, amongst other things, 'anything made or modified to be used in connection with manufacturing or preparing a prohibited drug' for smoking, inhaling or ingesting by a person.

5. Section 14(1) of the Act provides, relevantly, that a person who, without lawful excuse, has in the person's possession a substance that contains, or substances that together contain, a quantity of a category 1 item that exceeds the quantity prescribed in relation to the item concerned commits a crime.

6. In s 12 of the Act, relevantly, unless the contrary intention appears:

   (a)the term 'category 1 item' means a substance or thing designated as a category 1 item by regulations; and

   (b)'substance' includes material, compound, preparation and admixture.

7. The Misuse of Drugs Regulations 1982 (WA) designate, amongst other things, 37 grams of 'L‑Ephedrine (including salts)' and 37 grams of 'Pseudoephedrine (including salts)' as category 1 items.

The ground of appeal:  s 4 of the Code

1. Section 4 of 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.

2. Section 4 supplements the provisions of s 6(1)(b) read with s 33(1) of the Act, which create the offence of attempting to manufacture a prohibited drug. See, generally, the reasoning in Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 [50] ‑ [63] (Buss JA, Owen JA agreeing). In the present case, neither counsel for the appellant nor counsel for the State suggested that s 4 did not supplement the relevant provisions of the Act. Indeed, they expressly assumed that s 4 did supplement those provisions.

3. The first paragraph of s 4 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.

4. As Franklyn J noted R v English (1993) 10 WAR 355, the second paragraph of s 4:

   (a)is directed to and intended to clarify the words 'but does not fulfil his intention to such an extent as to commit the offence' appearing in the first paragraph;

   (b)assumes the requisite intention and the doing of the act which is more than 'merely preparatory'; and

   (c)declares that certain matters are immaterial in determining whether the elements of the attempted offence have been made out (358).

5. The matters that are immaterial comprise:  whether the offender does all that is necessary on his or her part for completing the commission of the intended offence; whether the complete fulfilment of the offender's intention is prevented by circumstances independent of his or her will; and whether the offender desists of his or her own motion from the further prosecution of his or her intention.

6. Section 4 distinguishes between:

   (a)a person doing an act that is 'merely preparatory' to the commission of an offence which he or she intends to commit; and

   (b)a person, intending to commit an offence, beginning to put this intention into execution by doing an act that is more than 'merely preparatory' to the commission of the offence.

7. Acts are 'merely preparatory' to the commission of an offence if they involve devising or arranging the means or measures necessary or convenient for the commission of the offence.  The word 'merely' emphasises that an act by a person which is, to any extent, more than preparatory to the commission of an intended offence, and which involves, to any extent, the person beginning to put his or her intention to commit the offence into execution, will be an act satisfying the second element of the definition of 'attempt' in the first paragraph of s 4.

8. The commission of an offence will ordinarily, as a matter of fact, comprise a series of acts which originate from a person's idea to perform a criminal act.  For example, the person's idea may mature into a decision to commit the offence; a plan may be conceived for implementing the decision; preparation may be undertaken with a view to carrying out the offender's decision and plan; and the person, after completing the preparation, may put his or her decision and plan into execution by performing an act towards the commission of the offence.  See R v Cline (1956) 115 CCC 18, 28 (Laidlaw JA, delivering the judgment of the Ontario Court of Appeal).

9. Numerous different tests for determining whether acts by a person are merely preparatory to the commission of an offence or constitute an attempt to commit the offence have been formulated and referred to from time to time in legislation and judgments.  All of them appear to have been criticised in varying degrees.  See the detailed appraisal in Meehan and Currie, The Law of Criminal Attempt (2^nd ed, 2000) ch 5.  See also Williams, Wrong Turnings on the Law of Attempt [1991] Crim L R 416. Parliaments have struggled to make the distinction and judges have had difficulty in applying it.

10. In R v Barker (1924) NZGLR 393, Salmond J (Stringer J agreeing) said in relation to the distinction between preparation and an attempt:

    All that can be definitely gathered from the authorities is that to constitute a criminal attempt, the first step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required.  The dividing line between preparation and attempt is to be found somewhere between these two extremes; but as to the method by which it is to be determined the authorities give no clear guidance (398).

11. That passage was adopted by Stable J in R v Williams; Ex parte Minister for Justice and Attorney-General [1965] Qd R 86, 101 ‑ 102. His Honour added:

    I would consider it unlikely that the authorities will ever give … 'clear guidance' as to the method of finding the dividing line between preparation and attempt, for that would mean the discovery of a legal formula universally applicable to the enormous variety of method by which nefariously inclined individual persons apply their infinite disparity of intellect and capability to the carrying out of criminal intentions.  That is just a long way of putting the evergreen truth ‑ each case depends on its own facts (102).

12. Laidlaw JA observed in Cline, in the context of the common law of criminal attempt, that in determining whether an act is sufficient to constitute an actus reus each case must be determined on its own facts, 'having due regard to the nature of the offence and the particular acts in question' (26).

13. In Deutsch v The Queen [1986] 2 SCR 2, Le Dain J, delivering the judgment of the majority of the Supreme Court of Canada, noted in relation to 'the distinction between attempt and mere preparation' (6):

    It has been frequently observed that no satisfactory general criterion has been, or can be, formulated for drawing the line between preparation and attempt, and that the application of this distinction to the facts of a particular case must be left to common sense judgment (22 ‑ 23).

    Le Dain J expressed his 'essential agreement' with this conclusion (23).

14. Le Dain J indicated in Deutsch that 'the distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished' (23).  Le Dain J explained that 'relative proximity may give an act which might otherwise appear to be mere preparation the quality of attempt' (26).

15. In my opinion, a correct understanding of the definition of 'attempt' in s 4 of the Code and the elements it specifies requires close attention to the statutory text.  The language of the provision should not be paraphrased.

16. The distinction between acts that are merely preparatory to the commission of an offence and acts that are more than merely preparatory to its commission, for the purposes of s 4 of the Code, is often, as a matter of fact, imprecise.  Each case will turn on its own facts and circumstances but, ordinarily, matters of importance in applying the distinction between acts that are merely preparatory and acts that are more than merely preparatory include:

    (a)the nature of the completed offence;

    (b)the actions which are necessary for carrying out the completed offence;

    (c)the nature of the particular acts of the accused that are in question; and

    (d)the relative proximity (including in time and place) of the acts in question to those actions that would have been necessary for the successful carrying out of the completed offence.

The ground of appeal:  manufacturing a prohibited drug contrary to s 6(1)(b) of the Act

1. The completed offence created by s 6(1)(b) of the Act refers to a person who 'manufactures' a prohibited drug.

2. As I have mentioned, 'manufactures' is not defined in the Act.  The word, as used in s 6(1)(b), does not have a technical meaning.  It bears its ordinary meaning.  The ordinary meaning of 'manufactures', in general usage, connotes the ongoing and progressive making, assembly or creation of a thing by hand or machine.  The essence of manufacturing is that 'what is made shall be a different thing from that out of which it is made':  McNicol v Pinch [1906] 2 KB 352, 361 (Darling J). That statement was approved and applied by Dixon J in Federal Commissioner of Taxation v Jack Zinader Pty Ltd [1949] HCA 42; (1949) 78 CLR 336, 343.

3. In McKeagg v The Queen [2006] WASCA 26, the appellant appealed against conviction and sentence. He was convicted, after trial, on two counts. Count 1 alleged that he had manufactured methylamphetamine. Count 2 alleged that he had attempted to manufacture methylamphetamine.

4. 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.

5. 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 these substances.

6. 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)

7. 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.

8. 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].

9. There was no evidence in McKeagg that the appellant had ever completed the process of manufacturing methylamphetamine as alleged in count 1.

10. 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 Act, unless the person has actually created or produced a substance that is or contains methylamphetamine.

The ground of appeal: attempting to manufacture a prohibited drug contrary to s 6(1)(b) read with s 33(1) of the Act

1. In the present case, the appellant was convicted of attempting to manufacture methylamphetamine, contrary to s 6(1)(b) read with s 33(1) of the Act.

2. The manufacture of methylamphetamine, at least by the Birch reduction or Nazi method, is an incremental process.  It is not instantaneous.  The manufacturing process is often carried out in a piecemeal fashion, and at different locations, for the purpose of avoiding detection.

3. As I have mentioned, the appellant in McKeagg was convicted on two counts.  Count 2 alleged that he had attempted to manufacture methylamphetamine.  As to this count, there was evidence that the appellant had imported into Australia four 25 kg containers of ma huang.  The appellant arranged for these containers to be transported to his home in Manjimup.  The shipment was intercepted by law enforcement authorities and a controlled delivery was made to the appellant's home.  On delivery, the appellant accepted the containers.

4. At trial, defence counsel made a submission of no case to answer on count 2.  It was argued that it was not open to the jury to be persuaded of the appellant's guilt beyond reasonable doubt because there was no evidence that the appellant's conduct went any further than mere preparation.  The trial judge rejected the submission.  His Honour held that the evidence was sufficient to require the case to be put to the jury for its decision as to whether, with the requisite intention, the appellant's conduct was more than merely preparatory to the commission of the offence.

5. On appeal in McKeagg no complaint was made about the trial judge's directions to the jury in relation to count 2.  The directions included, relevantly:

   Was the collecting of the four drums of what the State says Mr McKeagg thought to be ma huang and the taking of them to his home where the laboratory was situated out the back in the shed, the first step in the manufacture of methylamphetamine in circumstances where he intended to manufacture methylamphetamine [45]?

6. The laboratory referred to in the trial judge's direction had been set up in the shed at the appellant's property. 

7. It was submitted on behalf of the appellant in McKeagg that the trial judge's alleged misdirection in respect of count 1 'ought to be regarded as having caused a miscarriage of justice in respect of count 2, because the misdirection as to what may constitute manufacturing the drug might have led the jury astray in their conclusion that, in relation to [count 2], the acts of the [appellant] were not only committed with the intention of manufacturing methylamphetamine, but were so proximate to the process of manufacture that they were to be regarded as more than merely preparatory acts' [47].  That was the sole basis on which the appellant challenged his conviction on count 2.  This court rejected the submission.  Murray AJA said:

   The [appellant] accepts, as I have said, that the directions given by the trial Judge in respect of count 2 were entirely correct. I have discussed them above. When one adds to those directions the fact that his Honour told the jury that they were to pay separate attention to count 2 and make their decision about it having regard to his Honour's directions about that count and the facts as they found them to be in respect of that count, there is, in my opinion, no possibility that there has been a miscarriage of justice in the guilty verdict returned on count 2. I would uphold that conviction [51].

The ground of appeal:  its merits

1. In the present case, there is no doubt, in my opinion, that the appellant intended to manufacture methylamphetamine using the equipment and raw materials found by the police in Mr Michaels' vehicle.

2. The jury, by its verdict, must have been satisfied beyond reasonable doubt that, relevantly to this appeal, when Mr Michaels' vehicle was stopped by the police, the appellant had begun to put his intention to manufacture methylamphetamine into execution by doing an act that was more than merely preparatory to the commission of the offence. 

3. The point in issue in the appeal is whether this court is of the opinion that, having regard to the evidence, the jury's satisfaction to the requisite standard that the appellant had begun to put his intention into execution by doing an act that was more than merely preparatory to the commission of the offence of manufacturing methylamphetamine was unreasonable or cannot be supported.

1. After examining the trial record I am of the opinion, for the following reasons, that the State's case at the trial, put at its highest, failed to prove beyond reasonable doubt that the appellant had begun to put his intention to manufacture methylamphetamine into execution by doing an act that was more than merely preparatory to the commission of the offence.

2. First, as I have mentioned, a person will not have committed the completed offence of manufacturing methylamphetamine, contrary to s 6(1)(b) of the Act, unless the person actually creates or produces a substance that is or contains methylamphetamine.

3. The offence of attempting to manufacture methylamphetamine, contrary to s 6(1)(b) read with s 33(1) of the Act, requires that the accused, intending to manufacture methylamphetamine, has begun to put his or her intention into execution by doing an act that is more than merely preparatory to manufacturing methylamphetamine.

4. Secondly, none of the items found in Mr Michaels' vehicle had been put together or used for any purpose connected with any part of the process of manufacturing methylamphetamine by the Birch reduction or Nazi method.

5. None of the cold and flu tablets located in the vehicle had been removed from the blister packets, no lithium had been removed from any of the batteries, none of the equipment had been put together and no chemical synthesis or physical mixture of any of the raw materials in the vehicle had begun.

6. Thirdly, there was no evidence as to the appellant's intended destination when Mr Michaels' vehicle was stopped by the police, apart from the appellant's assertion in his video‑recorded interview that Mr Michaels was giving him a lift to collect his methadone medication.  The jury, by its verdict, must have rejected the appellant's assertion.  The assertion may be put aside.

7. Fourthly, an inference that, when Mr Michaels' vehicle was stopped by the police, the appellant was travelling to a place (for example, an area of remote bushland) where methylamphetamine could be manufactured with a reduced risk of apprehension was not the only inference reasonably open on the evidence. 

8. There was a reasonable inference open on the evidence that was inconsistent with the appellant 'setting off' in the vehicle to manufacture methylamphetamine and being 'on his way to manufacture … methylamphetamine at another location', as alleged by the prosecutor at the trial. 

9. In particular, there was a reasonable inference open on the evidence, and consistent with the appellant's acts having been merely preparatory to the commission of the offence; namely, when the vehicle was stopped by the police, the appellant was transporting the items in question from 36 Lewington Street to another place for safekeeping, with a view to returning at a later indeterminate time to put the equipment together and use the raw materials to begin the methylamphetamine manufacturing process. 

10. There was no evidence that any of the equipment or raw materials would become obsolete or unusable for manufacturing methylamphetamine if they were not put together or used for that purpose within a short (or, indeed, any) period after 20 December 2011.

11. Fifthly, the evidence about the appellant's prior conviction for manufacturing methylamphetamine was admitted for the sole purpose of establishing that he knew how to manufacture methylamphetamine and had a tendency to manufacture it.  The prior conviction evidence was probative of the appellant's intention to manufacture methylamphetamine.  However, the evidence was not probative of any fact which, alone or in combination with any other facts, indicated that the appellant had begun to put his intention to manufacture methylamphetamine into execution by doing an act that was more than merely preparatory to the commission of the offence.

12. Sixthly, the present case is plainly distinguishable from McKeagg. 

13. As to count 1 in McKeagg, on which this court entered a judgment of conviction for attempting to manufacture methylamphetamine in place of the conviction for manufacturing methylamphetamine, the offender had set up what the trial judge described as a 'laboratory' in the shed at his home; the offender had used raw materials (including ma huang) to create ephedrine and pseudoephedrine; the chemist gave evidence that there was 'an ongoing extraction of ephedrine/pseudoephedrine from the ephedra extract to yield the precursor required for the drug manufacture'; some of the ma huang in the 25 kg container had apparently already been used; and there was in the circumstances a very close proximity between the 25 kg container of ma huang imported by the offender, on the one hand, and the laboratory and the chemical reaction which had produced and was continuing to produce the ephedrine and pseudoephedrine, on the other. 

14. As to count 2 in McKeagg, the sole basis on which the offender challenged his conviction was that the trial judge's alleged misdirection in respect of count 1 'might have led the jury astray' in their conclusion that the acts of the offender in relation to count 2 were 'so proximate to the process of manufacture that they were to be regarded as more than merely preparatory acts' [47].  In any event, the rationale for this court's substitution on count 1 of a judgment of conviction for attempting to manufacture methylamphetamine applies generally to count 2.

15. I am persuaded that, in the circumstances of the present case, the appellant's conviction is unreasonable and cannot be supported having regard to the evidence.  It was not open to the jury to be satisfied beyond reasonable doubt that he had begun to put his intention to manufacture methylamphetamine into execution by doing an act that was more than merely preparatory to the commission of the offence.  The evidence adduced at trial requires the conclusion that the jury should necessarily have had a reasonable doubt about the appellant's guilt.

16. The ground of appeal has been made out.

Conclusion

1. Accordingly, the appeal should be allowed, the conviction set aside and a judgment of acquittal entered.