R v Osborne HC Ak CRI 2007-090-0002

[2008] NZHC 817

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-090-0002

THE QUEEN

v

O

Hearing:         3-5 June 2008

Counsel:         NR Webby for Crown

GJ Foley for Accused Ruling:   4 June 2008 at 12.00 noon Reasons: 11 June 2008

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 11 June 2008] at 12.00 noon, pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:          Meredith Connell, P O Box 2213, Auckland for the Crown

Mr GJ Foley, P O Box 105267, Auckland for the Accused

R V O HC AK CRI 2007-090-0002  4 June 2008

[1]      The accused stood trial on a charge of possession of methamphetamine for the purpose set out in para (c) of s 6(1) of the Misuse of Drugs Act 1975 (the Act). The jury returned a verdict of guilty.

[2]      The Crown case was that the accused was found in possession of 6.5 grams of methamphetamine.  It sought to rely on the presumption in s 6(6) of the Act which provides that a person is presumed, until the contrary is proved, to be in possession of a controlled drug for any of the purposes in subs (1)(c), (d) or (e) if he or she is in possession of the controlled drug in an amount, level or quantity at or over what is specified in the Act.   The Crown introduced evidence from an authorised  ESR analysis that the substance found in the possession of the accused weighed 6.5 grams and contained methamphetamine.

[3]      The defence argued that the Crown had failed to establish possession of the requisite  amount,  level  or  quantity of  methamphetamine  required  to  invoke  the presumption.   After hearing argument, I upheld the objection and ruled that the Crown could not rely on the presumption.  At the request of Mr Webby, I reserved the question for the opinion of the Court of Appeal pursuant to s 380 of the Crimes Act 1961.

[4]      My reasons for the ruling now follow.

The statutory scheme

[5]      Section 6(6) of the Act provides:

For the purposes of subsection (1)(f), a person is presumed until the contrary is proved to be in possession of a controlled drug for any of the purposes in subsection (1)(c), (d), or (e) if he or she is in possession of the controlled drug in an amount, level, or quantity at or over which the controlled drug is presumed to be for supply (see section 2(1A)).

[6]      By s 2 of the Act, a controlled drug:

... means any substance, preparation, mixture or article specified or described in Schedule 1, Schedule 2 or Schedule 3 to this Act;  and  includes any controlled drug analogue:

[7]      Clause 1 of Schedule 1 lists the substances which are Class A controlled drugs.  Methamphetamine was added as from 30 May 2003 by cl 4 Misuse of Drugs (Changes to Controlled Drugs) Order 2003 (SR2003/47).   Clause 5 of Schedule 1 extends the definition to include substances containing any proportion of a substance mentioned  in  cl  1.    A  substance  containing  methamphetamine  is  accordingly  a Class A controlled drug within the definition.

[8]      Section 2(1A) of the Act, referred to in s 6(6), provides:

Any reference in this Act to an “amount”, “level”, or “quantity at and over which a controlled drug is presumed to be for supply” is a reference to the amount, level, or quantity specified in Schedule 5.

[9]      Schedule 5 contains two columns, prefaced with the following:

The controlled drugs listed in the first column are presumed to be for supply at and over the amount, level or quantity listed in the second column.

The amount, level or quantity specified in the second column for methamphetamine is:

5 grams, whether or not contained in a substance, preparation, or mixture

Issue

[10]     The question is whether the 5 grams referred to in Schedule 5 is 5 grams of methamphetamine in its pure form or whether the presumption applies to 5 or more grams of any substance, preparation or mixture containing methamphetamine.

[11]     In this case there was no analysis of the quantity of pure methamphetamine contained in the substance possessed by the accused.  Accordingly, the presumption could apply only if the latter interpretation prevailed.

Discussion

[12]     Perhaps surprisingly the issue appears not to have been directly addressed since methamphetamine was reclassified as a Class A drug, although it appears that the Crown habitually relies on the presumption without evidence of the precise quantity of pure methamphetamine in the substance.  It has been assumed that s 6(6) applies if the substance exceeds 5 grams and contains methamphetamine.   In my view, an analysis of the words of the statute indicates that assumption to have been misplaced.

[13]     It must be acknowledged at the outset that by virtue of cl 5 of the First Schedule,  any  substance  containing  methamphetamine  is  a  controlled  drug  as defined in s 2 of the Act.   The analyst’s evidence, accordingly, was sufficient to establish that the accused was in possession of 6.5 grams of a Class A controlled drug.  But s 6(6) provides that, for the purpose of the presumption, reference must be made to s 2(1A) which, in turn, requires reference to the amount, level or quantity in Schedule 5.

[14]     Schedule 5 specifies the amount, level or quantity of a drug in one of three ways:

•In the case of some drugs, amphetamine is an example, the amount, level or quantity is specified as:

[X] or [Y] flakes, tablets, capsules, or other drug forms each containing some quantity of the drug.

(Where X is the number of grams and Y the number of flakes or other drug forms.)

•All  other  controlled  drugs  (except  for  cannabis  preparation  and  cannabis plant) which include morphine, cocaine, heroin as well as methamphetamine, specify the amount, level or quantity as:

[X] gram/s, whether or not contained in a substance, preparation, or mixture.

(Where X is the number of grams or fraction of a gram.)

•In the case of cannabis preparations and plant, the amount, level or quantity is specified as:

[X] grams or 100 cigarettes containing the drug.

(Where X is the number of grams.)

[15]     It will be apparent that drugs in the first category and cannabis preparation and  plant  anticipate  the  measurement  of  quantities  for  the  purpose  of  the presumption in one of two ways – either by a specific quantity of the drug itself or by a specified number of flakes or other forms of the drug, each containing some quantity of the drug.

[16]     The second category, of which methamphetamine is one, allows only for the specified quantity.  That is confirmed by the words, “whether or not contained in a substance, preparation or mixture” which follow.  In contradistinction to drugs in the first category (and cannabis) there is nothing to suggest that it would be sufficient if the substance, preparation or mixture merely contained some quantity of methamphetamine.    In my view, the schedule specifies the quantity of methamphetamine that must be present.

[17]     That interpretation finds support in the following obiter comments of the

Court of Appeal in R v Fatu [2006] 2 NZLR 72 (CA) at [27] and [28]:

[27]      We are of the view that objectivity and consistency are best served if the weight calculation proceed on a basis that is referable to purity.  Where the Misuse of Drugs Act refers to quantities of drugs (as for presumption of supply), it refers to the actual quantities of the controlled drug concerned. So a mixture containing 12 g of a controlled drug and 6 g of baking soda is treated as 12 g and not 18 g of the controlled drug for the purposes of the Act.  The position is the same in Australia and England.  The reason for the words “whether or not contained in a substance, preparation, or mixture” in Schedule 5 is simply to make clear that if, say, the controlled drug were a very small proportion of the overall product, it is still a controlled drug.

[28]     The material most recently supplied by the Crown includes a report from a forensic scientist, Ms Jennifer Sibley.    This shows that methamphetamine is sold and used in the solid crystalline hydrochloride salt form – methamphetamine hydrochloride.  The methamphetamine component

of methamphetamine hydrochloride is 80 per cent, with the balance (20 per cent) being hydrochloride.    Accordingly, the maximum purity of methamphetamine as sold on the street is 80 per cent.  In practice, the purity of methamphetamine which is sold as “P” is usually in the range of 70 per cent – 80 per cent and almost always over 60 per cent.  We note in passing that  methamphetamine  hydrochloride  is  itself  a  class  A  controlled  drug under cl 4 of Schedule 1.

[18]     A contrary conclusion was reached by Williamson J in R v Raroa (1993) 10

CRNZ 501. He was required to apply s 6(6) of the Act before its repeal and substitution (and the insertion in the Act of s 2(1A) in the Schedule 5) by the Misuse of Drugs Amendment Act 2005. Section 6(6) of the Act then provided:

For the purposes of paragraph (f) of subsection (1) of this section, a person shall  until  the  contrary  is  proved  be  deemed  to  be  in  possession  of  a controlled drug for the purpose set out in paragraph (c), paragraph (d), or paragraph  (e),  as  the  case  may  require,  of  that  subsection  if  he  is  in possession of any of the following:

(a)Five grams or more of morphine, whether contained in a substance, preparation, or mixture, or not:

(b)Half a gram or more of cocaine or heroin, whether contained in a substance, preparation, or mixture, or not:

(c)       Two and a half milligrams or more of lysergide, or 25 or more flakes, tablets, capsules, or other drug forms each containing some quantity of lysergide:

(d)Two  hundred  and  fifty  milligrams  or  more  of  a tetrahydrocannabinol, as described in the First Schedule to this Act, whether contained in a substance, preparation, or mixture, or not:

(e)       Five  grams  or  more  of  cannabis,  as  described  in  the  Second Schedule to this Act, or 28 grams or more of cannabis plant as described  in  the  Third  Schedule  to  this  Act,  or  100  or  more cigarettes containing cannabis or cannabis plant, as so described:

(f)        Fifty-six grams or more of any other controlled drug.

[19]    Williamson J was asked to determine whether pursuant to s 6(6)(f) the presumption  applied  to  magic  mushrooms  weighing in  excess  of  56  grams  and containing a Class A controlled drug, psilocybine.  He held that magic mushrooms came within the extended definition of controlled drug contained then (as it is now) in cl 5 of Schedule 1.  He said at 502-503:

For the accused it is submitted that the presumption cannot apply to this case because there is no proof that the magic mushrooms contained 56 g or more of psilocybine.  It is submitted that in the context of this section controlled

drug must refer to the base substances listed in cl 1 of the First Schedule. Similar submissions, although in relation to a charge of possession only, were considered in a case of Tarlton v Police (1987) 2 CRNZ 413.   The question of law before the Court of Appeal was – “Does the possession of a magic mushroom in which psilocybine naturally occurs amount to the possession of the substance psilocybine contrary to the Misuse of Drugs Act

1975?”  The Court of Appeal answered yes to that question upon the basis that cl 5 of the First Schedule did extend the meaning of controlled drug. The Court considered the true meaning of the word “substance” and the manner in which that word was used in the First Schedule.

On the basis of the dicta contained within the Court of Appeal decision and upon a reading of the plain words of the Schedule I hold in this case that proven possession of 56 g or more of magic mushrooms containing psilocybine does raise the presumption.   I am satisfied that the evidence establishes that the magic mushrooms found were a substance containing a proportion of psilocybine and consequently within the terms of cls 5 and 1 of the First Schedule.

[20]     Raroa is readily distinguishable.  The statutory scheme then in force made no distinction between simple possession of a controlled drug and possession for the purpose of the presumption.   Schedule 1 applied to both.   The 2005 amendments changed that.  The definition of a controlled drug is still determined by reference to Schedule 1 but the quantity required to trigger the presumption requires reference to the new Schedule 5.

[21]     When, as in the case of methamphetamine, Schedule 5 specifies a quantity “whether or not contained in  a  substance,  preparation  or  mixture”,  the quantity referred to is the drug in its pure form as defined in cl 1 of Schedule 1.

Result

[22]     As the Crown had failed to prove the quantity of methamphetamine in the substance found in the possession of the accused, I ruled it could not rely on the presumption.