New South Wales Court of Criminal Appeal CITATION : R v Bowman & Anor [2002] NSWCCA 449 FILE NUMBER(S) : CCA 60428/02; 60427/02 HEARING DATE(S) : 1 November 2002 JUDGMENT DATE : 15 November 2002 Regina PARTIES : Bradley Russell Bowman Paul Nathan Bowman JUDGMENT OF : Dunford J at 1; Sperling J at 1; Carruthers AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0970 LOWER COURT JUDICIAL Keleman DCJ OFFICER : Mr I McClintock SC for the Applicant PN Bowman COUNSEL : Mr M Thangaraj for the Applicant BR Bowman Mr D Frearson for the Crown Galloways for the Applicant PN Bowman SOLICITORS : Michael Croke & Co for the Applicant BR Bowman SE O'Connor for the Director of Public Prosecutions CATCHWORDS : Criminal Law - application for leave to appeal against an interlocutory order - trial judge refused an application for a permanent stay - whether necessary for prosecution to believe accused guilty of offence charged where legislation deems offence on a lesser proof - no other question of principle LEGISLATION CITED : Criminal Appeal Act 1912, s5F Drug Misuse and Trafficking Act 1985, s3, s10, s24, s25, s29 BD (2001) 122 A Crim R 28 CASES CITED: Kellert (1961) 80 WN (NSW) 307 Mitchell v John Heine & Son Ltd (1938) SR (NSW) 466 Williams v Spautz (1992) 174 CLR 509 DECISION : See paragraph 1 of the judgment. - 7 -IN THE COURT OF CRIMINAL APPEAL 60428/02 60427/02 Dunford J Sperling J Carruthers AJ Friday, 15 November 2002 R v Bradley Russell Bowman R v Paul Nathan Bowman Judgment 1 The Court: This application for leave to appeal pursuant to s5F of the Criminal Appeal Act 1912 was refused by this Court on 1 November 2002. Reasons were deferred. The charges 2 On 2 February 2000 Paul Nathan Bowman and Bradley Russell Bowman were each charged with the following offences: (1) Knowingly take part in the manufacture of a prohibited drug, to wit, 7457 grams of methylamphetamine, which was not less than the commercial quantity applicable to that drug, contrary to s24(2) of the Drug Misuse and Trafficking Act; (2) Supply a prohibited drug, to wit, pseudoephedrine, contrary to s25(1) of the Drug Misuse and Trafficking Act; (3) Possess a prohibited drug, to wit, pseudoephedrine, contrary to s10(1) of the Drug Misuse and Trafficking Act. 3 By definition in s3 of the legislation, "supply" includes having in possession for supply. 4 Section 29, so far as is relevant, provides as follows: A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless: (a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or (b) … … … The correspondence 5 On 18 April 2001, the applicants' solicitor wrote to the Director of Public Prosecutions requesting particulars of the charges. So far as is relevant the letter was in the following terms: [I] t would be greatly appreciated if you would provide details of the following particulars in writing: 1 … … … 2 Particulars in general in respect of each offence. 6 On 20 April 2001, the Solicitor for Public Prosecution wrote in reply, so far as is material, in the following terms: As indicated above in relation to the first count, "Knowingly take part in manufacture" the Crown case is that both Accused were in possession of the pseudoephedrine and other items to make methylamphetamine themselves or to deliver to some other person for that purpose. In relation to the second count the Crown relies on their joint possession of a large commercial quantity of pseudoephedrine to prove supply under the deeming provision in s29 Drugs Misuse and Trafficking Act 1985. 7 On 15 May 2001, the case of BD (2001) 122 A Crim R 28 was decided. The gist of that decision was that acts involved in the acquisition and transportation of chemicals and equipment to another for use in the manufacture of a prohibited drug do not constitute the offence of knowingly taking part in the manufacture of a prohibited drug contrary to s24(2) of the legislation. 8 On 28 June 2001, the applicants were advised by the Office of the Director of Public Prosecutions that the charge asserting an offence contrary to s24(2) would not be prosecuted, but that the charge under s25(1) would proceed to trial. The application for a stay 9 The applicants moved for a permanent stay of proceedings in relation to the s25(1) charge. On 31 July 2002, Keleman DCJ refused the application. It is against that interlocutory decision that leave to appeal was sought and has been refused. 10 As appears from Keleman DCJ's judgment, the application proceeded before him on the following basis (Judgment 31 July 2002, pp 1-2): Briefly it is the Crown case that on 2 February 2002 police stopped a vehicle that was being driven by Paul Bowman and in which Bradley Bowman was a passenger. The vehicle was searched and in the vehicle police located a total of just under eight kilograms of pseudoephedrine in two separate locations in the vehicle, namely, in the boot and under the driver's seat. In addition police located a quantity of glass laboratory equipment and other chemicals. The fingerprints of each of the accused were found on some of these items. The Crown will be calling evidence from a suitably qualified expert that the pseudoephedrine, the laboratory equipment, and the other chemicals are used in the manufacture of methylamphetamine. 11 A stay of criminal proceedings may be granted to prevent an abuse of process or to prevent a trial which would be unfair: Williams v Spautz (1992) 174 CLR 509, 518. First ground: No belief 12 The applicants cited the following passage in Mitchell v John Heine & Son Ltd (1938) SR (NSW) 466, 469. In an action for malicious prosecution the burden of proof is on the plaintiff to prove (inter alia) that the defendant in instituting or maintaining the prosecution acted without reasonable or probable cause and also acted maliciously. In order that one person may have reasonable and probable cause for prosecuting another for an offence, it is necessary that the following conditions should exist. (1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information whether it consists of things observed by the prosecutor himself or things told to him by others must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty. In order that the plaintiff may succeed on the issue of reasonable and probable cause, it is essential that he should establish that one or more of these conditions did not exist. This he may do by proving if he can that the defendant prosecutor did not believe him to be guilty or that the belief in his guilt was based on insufficient grounds. 13 The argument then went as follows. (1) What was said in Mitchell concerning a civil action for malicious prosecution applies equally to an application to stay criminal proceedings for abuse of process. (2) In the present case, the prosecuting authority did not believe that the applicants were in possession of the pseudoephedrine for the purpose of supply. 14 It appeared that the applicants relied on the fact of the s24(2) charge itself as evidence that the prosecuting authority believed that the pseudoephedrine was not in the possession of the applicants for the purpose of supply.. 15 The charge itself does not imply such a state of mind in the prosecuting authority. When the charge was laid, that is, before the decision in BD, transport to another who would use the chemical for the manufacture of methylamphetamine was understood to constitute being knowingly concerned in the manufacture of the end product within the meaning of s24(2). Accordingly, pre-BD, the s24(2) charge was as consistent with a belief that the pseudoephedrine would be used for supply to another as it was with an intention on the part of the applicants to use the pseudoephedrine themselves. It cannot, therefore be inferred from the fact of the s24(2) charge itself that the prosecuting authority believed that the pseudoephedrine was not in the applicant's possession for the purpose of supply. 16 In the alternative, the applicants relied on the particulars provided by correspondence as evidence that the prosecuting authority did not know whether the applicants were in possession of the pseudoephedrine for supply or for use by themselves. Therefore, it was said, the prosecuting authority, not knowing which was the case, cannot have believed that the applicants were in possession of the chemical for supply rather than for use by themselves. 17 We assumed, for the purpose only of the argument, that absence of that belief made out the second proposition mentioned above. 18 That left the first proposition for consideration. We would hold that the passage quoted from Mitchell, has no relevance for an application to stay a prosecution based on a deeming provision such as s29. Belief in the actuality (intention to supply) cannot be necessary to justify a prosecution when the legislation creating the offence makes a lesser proof (possession) sufficient to establish the actuality in law unless the accused disproves the actuality. The legislation contemplates that the prosecuting authority may not know and may have no means of knowing whether the accused is actually in possession for supply. By prosecuting in ignorance of that, the purpose of the legislation is fulfilled, not abused. Second ground: Improper purpose 19 It was then submitted that the prosecution for the s25(1) offence was a device to procure admissions from the applicants which would support the relatively minor, back-up charge of possessing a prohibited drug contrary to s10(1) of the legislation. 20 Kellert (1961) 80 WN (NSW) 307 was cited as authority for the proposition that to prosecute a charge for an improper purpose is an abuse of process. The decision is not otherwise relevant. The proposition of law for which it was cited is commonplace: see Williams v Spautz (above) at 519-520. 21 There is, however, no factual basis for the application of that principle in the present case. The prosecuting authority has had no reason to believe that the s25(1) charge will fail. The Crown is in a position to prove possession, the appellants are entitled to give evidence of an intention to use the pseudoephedrine themselves rather than supply it to others. They might give such evidence but they might not be believed, and a conviction for deemed supply may follow. 22 In these circumstances, the submission that the charge under s25(1) has been brought or maintained for the ulterior purpose of securing admissions to support the charge under s10(1) is unsustainable. Conclusion 23 For these reasons, the decision by Keleman DCJ refusing the application for a permanent stay was so unimpeachably right that leave to appeal was refused. -o0o- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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