R v Jordan HC Whangarei T002868

[2001] NZHC 1139

IN THE HIGH COURT OF NEW ZEALAND
WHANGAREI REGISTRY T002868

THE QUEEN

v

DAVID LEMMY JORDAN

Hearing: 22 November 2001

Counsel: P J Magee for Crown
K C Bailey for Accused

Judgment: 23 November 2001

JUDGMENT OF SALMON J ON s 347 APPLICATION

Solicitors:
Marsden Woods Inskip & Smith, Crown Solicitors, PO Box 146, Whangarei
K C Bailey, PO Box 1195, Whangarei

[1] Mr Bailey has made application pursuant to s 347 of the Crimes Act 1961 that the accused be discharged in relation to two charges of producing morphine. The grounds of the application are that Mr Jordan did not produce morphine.

[2] The evidence produced at depositions shows that when the police searched Mr Jordan’s house in Whangarei he gave them three 100 gram tablets, which, it was accepted, contained morphine sulphate. Mr Jordan was asked what he did with the tablets before he took them. He said he crushed the tablet up in a spoon, mixed some baking soda in with it and mixed some vinegar in and then heated it up. He then injected it. He was asked why he just did not take the morphine in tablet form and he said it was better the other way.

[3] That really is the extent of the evidence relevant to this application. There is no evidence as to what happens (if anything) to the morphine sulphate when it is mixed with baking soda and vinegar. Indeed, the Crown accepted that it remained as morphine sulphate, but in a form in which it could be injected.

[4] Mr McGee submitted that by treating the morphine sulphate tablets in that way Mr Jordan was producing morphine and had thus committed offences under s 6(1)(b) of the Misuse of Drugs Act 1975.

[5] Section 2 of the Misuse of Drugs Act defines “produce” in the following terms:

“Produce includes compound; and production has a corresponding meaning.”

[6] Mr Magee referred to the dictionary definition of the verb “compound” as -

“To put together; to apply. To combine, mix (elements) etc. To make up by the combination of elements. To compose; to form; to constitute as elements.”

[7] He submitted that any substance formed by the mixing or combination of two or more other substances was production.

[8] Relevant definitions of the word “produce” from the Oxford English Dictionary are:

“3. To bring forth, bring into being or existence, (a.) generally to bring (a thing) into existence from its raw materials or elements; or as the result of a process; to give rise to bring about effect, cause, make.”

“Production” is defined as the action of producing, bringing forth, making or causing.

[9] The list of proscribed drugs in the Schedule to the Misuse of Drugs Act includes substances containing any proportion of an earlier listed substance, in this case morphine.

[10] In Re Park (1991) 7 CRNZ 676 Roper J concluded that drying and pulverising magic mushrooms did not produce psilocybine, a substance contained in the mushrooms. He said at page 677:

“In the present case the accused dried the mushroom material and pulverised it for easier consumption but he produced nothing new and brought nothing into being. I would agree that he “prepared” the mushroom material and by drying it probably “preserved” it but he did not “produce” psilocybine giving that term its ordinary and natural meaning. As I understand it, it was not essential to the use of the magic mushrooms that they be either dried or pulverised.”

[11] Mr Magee also referred to the judgment of Penlington J in R v Strange (unreported, High Court, Hamilton Registry, T.6/97, 5 October 1998). The accused in that case was charged with conspiring to manufacture the class A controlled drug lysergide. The evidence was that LSD in its liquid form was not usable. Before it could be used it had to be processed by diluting it, dissolving it in a solvent such as alcohol and applying it to absorbent paper. The paper is then cut or perforated so that squares are produced. Penlington J held that that process constituted manufacture.

[12] In R v Russell (1992) 94 Crim. App.R 351 (CA) cocaine hydrochloride was converted into cocaine by mixing it with bicarbonate of soda and water and then heating it. It was held to that cocaine was produced because the chemical nature of the drug was altered.

[13] In this case there is no evidence that the chemical nature of morphine sulphate has been altered in any way. As mentioned above, there is no evidence as to the effect, if any, of mixing it with baking soda and vinegar. I may prefer to take aspirin dissolved in water rather than aspirin tablets, but I do not believe that it would be appropriate to say that I was producing aspirin when I dissolved it in water.

[14] In the absence of any evidence as to any chemical change taking place as a result of the process to which the tablets were subjected I am unable to hold that morphine sulphate has been produced by Mr Jordan.

[15] Accordingly, the application is allowed and the charges are dismissed.