The Queen v Rua (aka Evans)

[2008] NZCA 38

IN THE COURT OF APPEAL OF NEW ZEALAND

CA596/07
[2008] NZCA 38

THE QUEEN

v

JAY RUA (AKA JAMIE EVANS)

Hearing:21 February 2008

Court:Robertson, Randerson and Ronald Young JJ

Counsel:W M Ryan for Appellant

M D Downs for Crown

Judgment:29 February 2008 at 10 am

JUDGMENT OF THE COURT

APPEAL AGAINST CONVICTION DISMISSED.

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]       When the police executed a search warrant at the appellant’s home it had, as police described, all the hallmarks of a methamphetamine laboratory.  In the house the police found a two-layered liquid which contained methamphetamine.  The appellant was convicted by a jury of manufacturing the methamphetamine, amongst other Misuse of Drugs Act 1975 charges.  The appellant’s case on appeal is that the methamphetamine found by the police was not in a useable form and, therefore, he should not have been convicted of manufacturing methamphetamine.

Relevant facts

[2]       Mr Scott Reinhardt, a scientist, gave evidence describing the process by which methamphetamine is produced, which he considered had been used in this case.  Mr Reinhardt said the process started with a pseudoephedrine product, such as cold or flu tablets containing pseudoephedrine.  The first stage is to separate the pseudoephedrine from the flu tablets.  These are dissolved in water and a caustic substance added to the mixture.  Then, a solvent such as toluene is added to that liquid and the mixture shaken.  The pseudoephedrine rises to the top of the resulting liquid.  The solvent is then evaporated, and a pseudoephedrine powder results.  This powder is then placed in a reaction flask and iodine and hypophosphorous acid is added.  The resulting reaction produces heat and heat is also required to be applied to the mixture.  Methamphetamine is then produced in an acidic two-layered liquid. 

[3]       At this stage, the methamphetamine is not in a form able to be consumed.  To turn the solution into a useable form, a solvent such as toluene must be added to the solution.  The methamphetamine base prefers the toluene layer.  The toluene is then removed and, finally, a hydrochloride gas is bubbled through the liquid which converts the methamphetamine to methamphetamine hydrochloride, a solid crystalline form, a useable drug, and a salt of methamphetamine.

[4]       In this case, a two-layered liquid, which contained methamphetamine, was found in the appellant’s house.  Pseudoephedrine was also present in the liquid, which suggested that the reaction had not yet converted all of the pseudoephedrine to methamphetamine.  It is common ground that no methamphetamine powder was found and there was no evidence that methamphetamine was manufactured to a stage where it could be consumed.

The opposing positions

[5]       The appellant’s case can be simply put.  The appellant was charged with manufacturing methamphetamine.  He submits that “manufacture”, in the context of s 6 of the Misuse of Drugs Act 1975, means “to work into a form of a drug which is useable”.  The form of methamphetamine created by the appellant was not useable and he had not, therefore, manufactured methamphetamine.

[6]       Two recent High Court decisions on this point are in conflict.  In R v Pirini HC AK CRI 2003-090-013741 12 October 2004, as here, methamphetamine in liquid form was discovered when the police searched the relevant premises.  However, the methamphetamine was not able to be used by a consumer of the drug.  Baragwanath J concluded that the words “produce” or “manufacture” in s 6 of the Misuse of Drugs Act 1975 were intended to be complementary.  “Manufacture” was the process of creation of the drug, methamphetamine, and “produce” described the end result of the manufacture.  He concluded, therefore, that it was open to the jury to find the accused had manufactured methamphetamine, although the drug was not in a useable form. 

[7]       Simon France J in R v Holtham HC Nelson CRI 2006-042-002569 21 December 2007 took a different view.  He considered that “manufacture” was concerned with the production of a useable drug.  He concluded that Baragwanath J’s approach meant “manufacture” effectively had two meanings, the process of creation of methamphetamine, and the creation of it in useable form.  He considered the production of a useable drug to be the “evil” the legislation was aimed at.  He said that if Baragwanath J’s view was correct then the manufacturing process would be complete when methamphetamine was first produced.   He said:

The idea of a continuing offence does not sit easily where the charge involves the production of a defined, finite product.

Simon France J concluded that, in the context of the statutory framework, manufacturing methamphetamine meant making a useable quantity.

Discussion

[8]       The appropriate place to begin is with the relevant statutory provisions.  Controlled drug is defined in s 2(1) of the Misuse of Drugs Act 1975 as:

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.

and s 6(1)(b) provides:

6        Dealing with controlled drugs

(1)Except as provided in section 8 of this Act, or pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall—

. . .

(b)Produce or manufacture any controlled drug.

[9]       There is no statutory definition of “manufacture”.  Section 2 provides that “produce includes compound; and production has a corresponding meaning”.

[10]     Schedule 1 to the Misuse of Drugs Act lists those drugs that are Class A controlled, which includes “methamphetamine”.  In addition, clause (4) of the Schedule gives Class A controlled status to:

(4)The salts of the substances mentioned in this schedule and the salts of the isomers, esters, and ethers mentioned in clause 2 or clause 3 of this Schedule.

[11]     Schedule 1 therefore provides that both forms of methamphetamine identified in this case, methamphetamine itself and methamphetamine hydrochloride (a salt of methamphetamine), are controlled drugs. 

[12]     The words “produce” or “manufacture” in s 6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug.  We doubt that the statute is intended to create separate crimes of producing and manufacturing a controlled drug.  Rather, we are inclined to the view that the use of the words “produce or manufacture” are to be read as complementary and to broadly cover the process of creation of controlled drugs.

[13]     In Karpavicius v The Queen [2004] 1 NZLR 156 the Privy Council considered the breadth of the Misuse of Drugs Act and said:

[16]. . . Given the scheme and structure of the legislation it is to be inferred that the legislature aimed to create a comprehensive system of control of drugs with no obvious gap.  But, as already pointed out, on the appellant’s interpretation there are significant gaps, resulting in the spectre of the acquittal of criminals who undoubtedly dealt in controlled drugs.  An interpretation which requires the guilty to go free tends to bring the law into disrepute and to undermine public confidence in the administration of justice.  Such a result is avoidable in this case by interpreting the words “in any other case” in a sense which enables section 6(2A)(c) to operate additionally as a residual category.  Such an interpretation ascribes to the words, in their context, a perfectly natural meaning.  And it is better suited to the purposes and policies underlying the legislation than the narrower interpretation.

[14]     Their Lordships acknowledged the principle that in the past criminal statutes were interpreted narrowly.  However, they said:

[15]. . . Nowadays an approach concentrating on the purpose of the statutory provision is generally to be preferred: Cross, Statutory Interpretation, 3^rd ed (1995), pp 172-175; Ashworth, Principles of Criminal Law, 3^rd ed (1999), pp 80-81.  This is reinforced by section 5(1) of the Interpretation Act 1999 (New Zealand) which provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose.

[15]     We are satisfied that the use of the words “produce” or “manufacture” capture the creation of a controlled drug as broadly as possible, without leaving any gaps.

[16]     The broad reach of the statutory language is also illustrated by clause (5) of Schedule 1 which provides that Class A controlled status applies to:

(5)Substances containing any proportion of a substance mentioned in clause 1, clause 2, clause 3, or clause 4.

As the Crown submitted, the prohibited substance is not just the particular drug, but any substance preparation, mixture or article of which the controlled drug forms part ([8]).

[17]     As Baragwanath J and Simon France J demonstrated respectively in Pirini and Holtham, manufacture can have a wide or a narrow definition.  It can simply mean to make a product out of or from raw materials (Oxford English Dictionary (OED) (a wide definition)), or it can mean to make up or bring into a form suitable for use (a narrow definition).  “Produce” can be a synonym for “manufacture” and includes bringing something into existence (OED).

[18]     We can see no reason to introduce a gloss to “manufacture” by requiring usability before manufacture is complete.  The introduction of the idea of usability to manufacture in the Misuse of Drugs Act inappropriately narrows s 6(1)(b), which is a comprehensive statutory provision prohibiting the creation of controlled substances.  This interpretation is consistent with the plain words of the statute, which prohibits the manufacture of methamphetamine, and its purpose, the prohibition of the creation of controlled drugs (see s 5(1) Interpretation Act 1999).

[19]     Concern was expressed by counsel for the appellant that this interpretation would effectively sanction a continuing offence, whereas “manufacture” was concerned with a finite process and product.  We see no such difficulty.  On the facts of the present case manufacturing was complete once the methamphetamine was created in the two liquid vessel.  If, however, another person took the methamphetamine liquid and, as we have described in [2], created methamphetamine hydrochloride, a manufacture would also have taken place with this process. 

[20]     Here, one form of a prohibited drug, methamphetamine, is by a process used to make another form of the prohibited drug, methamphetamine hydrochloride, (a salt).  The chemical composition of the first substance, methamphetamine, is changed into a different chemical composition by manufacture, to the second substance, methamphetamine hydrochloride.  This fits with a broad approach to “produce or manufacture”, and avoids the difficulties identified by counsel for the appellant, and by Simon France J in Holtham.

Result

[21]     For the reasons given, we are satisfied that the jury was entitled to find that the creation of methamphetamine by the appellant was manufacturing contrary to s 6(1)(b) of the Act.  The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington