Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Woods v R [2017] NSWCCA 5 Hearing dates: 31 August 2016Written submissions 4 October 2016 Date of orders: 31 August 2016 Decision date: 02 February 2017 Before: Price J at [1] Davies J at [1] Garling J at [1] Decision: (1) Appeal allowed. (2) Vacate judgment of Syme DCJ on 22 January 2016. (3) Indictment quashed. (4) Certificate under s 2(1)(a) of Costs in Criminal Cases Act 1967 (NSW) granted to the applicant up to and including the judgment of Syme DCJ on 22 January 2016. Catchwords: APPEAL – criminal law –whether dextromethorphan was a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW) – Crown concession – indictment quashed CRIMINAL LAW – costs – application for certificate under s 2(1)(a) of Costs in Criminal Cases Act 1967 (NSW) – whether applicant was "discharged in relation to offence concerned" – certificate granted Legislation Cited: Costs in Criminal Cases Act 1967 (NSW), ss 2, 3 Criminal Appeal Act 1912 (NSW), s 5F(3)(b) Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(2), sch 1 Poisons and Therapeutic Goods Act 1966 (NSW), s 8 Cases Cited: DAO v R (No 3) [2016] NSWCCA 282 Director of Public Prosecutions v Howard (2005) 64 NSWLR 139; [2005] NSWSC 987 Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738; (1995) 77 A Crim R 537 Texts Cited: Butterworths Concise Australian Legal Dictionary Category: Principal judgment Parties: Matthew Woods (Applicant) Regina (Respondent) Representation: Counsel: M G McHugh SC and M J Gleeson (Applicant) N J Adams (Respondent) Solicitors: Armstrong Legal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/00169795 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 22 January 2016 Before: Syme DCJ File Number(s): 2014/00107087; 2014/00169795 Judgment 1. THE COURT: Matthew Woods ("the applicant") and a co-accused, Phillip Kandarakis, had been arraigned in the District Court upon an indictment that between 20 March 2013 and 2 August 2013, at Barrack Heights, each knowingly took part in the supply of a prohibited drug, namely dextromethorphan, an isomer of methorphan, in an amount of 4,993 grams, being an amount not less than the large commercial quantity for that drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ("DMT Act"). 2. Before a jury was empanelled, the applicant asked Syme DCJ ("the judge") to quash the indictment. The application was founded on the submission that dextromethorphan was not a prohibited drug under the DMT Act. After hearing evidence and argument, the judge rejected the challenge to the indictment. 3. The applicant appealed against the interlocutory judgment. The judge certified the judgment to be proper for determination on appeal, in accordance with s 5F(3)(b) of the Criminal Appeal Act 1912 (NSW). 4. The sole ground of appeal was as follows: "That her Honour erred in finding that dextromethorphan is a prohibited drug under the Drug Misuse and Trafficking Act 1985." 1. On the hearing of the appeal on 31 August 2016, the Crown conceded that dextromethorphan was not a prohibited drug for the purposes of the DMT Act and submitted that the judge had fallen into error. Having accepted that the Crown's concession was appropriately made, this Court allowed the appeal, vacated the judgment and quashed the indictment. 2. The applicant then applied to this Court for a certificate under the Costs in Criminal Cases Act 1967 (NSW) ("CCC Act") and written submissions on this issue were subsequently provided to the Court. 3. The question to be determined is whether in the present case, the applicant was "discharged in relation to the offence concerned", within the meaning of these words in s 2(1)(a) of the CCC Act. 4. This judgment deals with the argument before the judge, the Crown's concession, and the question as to costs. 5. The Court notes that the Crown submitted to the judge that dextromethorphan is a prohibited drug and it was not until shortly before the hearing of the appeal that the Crown accepted that it was not. Relevant statutory provisions 1. Section 3 of the DMT Act which, so far as is relevant, is as follows: "3 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: … "prohibited drug" means any substance, other than a prohibited plant, specified in Schedule 1. … "substance" includes preparation and admixture and all salts, isomers, esters or ethers of any substance and all salts of those isomers, esters and ethers." 1. Schedule 1 of the DMT Act prescribes the trafficable, small, indictable, commercial and large commercial quantities of prohibited drugs. Dextromethorphan is not listed on the schedule, but methorphan, levomethorphan and racemethorphan are listed. 2. Schedule 1 includes the "analogue provision": "Schedule 1 … Prohibited plant or prohibited drug Any substance that is an analogue of a drug prescribed in this Schedule is not separately specified in this Schedule and is, in relation to the drug, any of the following: (a) a structural isomer having the same constituent groups as the drug, (b) a structural modification obtained in one or more of the following ways…" The interlocutory judgment Submissions before the judge 1. The Crown submitted that dextromethorphan was a prohibited drug according to s 3 of the DMT Act. It was argued that the definition of "substance" in s 3 should be read in its most plain and obvious terms, such that it included "isomers" without qualification as to whether "isomers" referred to structural isomers or stereoisomers. The Crown submitted that the reference to structural isomers in the analogue provision in Schedule 1 did not alter that. 2. The Crown contended that methorphan and levomethorphan were included in Schedule 1 and, as an isomer of both substances; dextromethorphan was included by virtue of those definitions. 3. The applicant submitted that dextromethorphan was not a prohibited drug and that the indictment ought to be quashed. It was argued that if the Crown's position was accepted, the list of chemicals said to be prohibited drugs would be expanded "far beyond those considered to be prohibited drugs under either the explicit list included in the schedule or those brought within the schedule by the analogue provisions" at p 65 of the Appeal Book. The applicant submitted that the Crown's position "drastically widens the list and crucially includes within it all of the drugs that the analogue provisions would catch" at p 65 of the Appeal Book. Expert evidence 1. The Crown tendered an expert statement of Erin Ellis dated 2 October 2014 (Ex 1), and the applicant tendered an expert statement of Emeritus Professor Brynn Hibbert dated 14 December 2015 (Ex 2). There was little disagreement between the experts. Both counsel agreed that, based on the expert evidence, the question of whether or not a substance was prohibited under the DMT Act was ultimately a question of law. 2. The experts agreed on the following matters: 1. An isomer is a molecular entity with the same atomic composition of molecular formula as another entity but with a different line or stereochemical formula. Hence, an isomer has different physical or chemical properties. 2. An isomer can be either a structural isomer or a stereoisomer. 3. Levomethorphan and dextromethorphan have the same molecular formula but a different spatial arrangement of atoms. 4. Dextromethorphan is a stereoisomer of methorphan and levomethorphan. Levomethorphan is an isomer of methorphan. 5. Dextromethorphan is not a structural isomer of methorphan or levomethorphan. It is an isomer. 6. Methorphan is a common term used to describe compounds including isomers of methorphan. Dextromethorphan and levomethorphan are stereoisomers of methorphan. The judge's findings 1. The judge concluded that dextromethorphan was an isomer of levomethorphan and methorphan, but not a structural isomer of either. Dextromethorphan was not named in the DMT Act and was not capable of being included in the analogue provision by virtue of the qualifications contained in subparts (a) and (b) of Schedule 1. 2. The judge considered the following relevant to her decision: 1. As assented to, the DMT Act included the definition of "substance", and Schedule 1 was much shorter in terms of substances included and did not contain the analogue provision. 2. Before 2001, methorphan, levomethorphan, racemethorphan, and the analogue provision were included in Schedule 1. There was no information before the judge as to the reasons why dextromethorphan was not included in Schedule 1 at the same time as the other methorphans. 3. Dextromethorphan appears in the Poisons and Therapeutic Goods Act 1966 (NSW) ("PTG Act"). Reference to dextromethorphan in the PTG Act excludes "its isomers." Section 8 of the PTG Act proclaims the Poisons List, and dextromethorphan is listed in Schedules 2 and 4 of the list. Schedule 2 provides that dextromethorphan is "dangerous if misused but available to the public in packs of 600 milligrams or less", and Schedule 4 provides that it "is to be supplied only by way of prescription." 4. The PTG Act contains offence provisions relevant to the supply of restricted substances contained in that Act. 1. The judge found that dextromethorphan was a prohibited drug as it was an isomer of methorphan. The judge held that there was no real conflict between the analogue provision, s 3 of the DMT Act and the PTG Act. The Crown's concession on appeal 1. The Crown conceded that the argument it advanced and that was accepted by the judge in relation to the construction of s 3 of the DMT Act was unsustainable. Dextromethorphan was not a prohibited drug for the purposes of the DMT Act for the following reasons: "(a) A prohibited drug is relevantly defined in section 3 as any substance specified in Schedule 1. (b) Schedule 1 is augmented by the so-called 'analogue provisions' at the end of the schedule which deem analogues, structural isomers (as opposed to isomers- simpliciter) and structurally modified substances to be included in the schedule and hence to fit the description of 'prohibited drug' in section 3. (c) The section 3 definition of 'prohibited drug' commences with the words "prohibited drug means…" (d) The section 3 definition of 'substance' commences with the words "substance includes…" The matters included in a "substance" are 'preparation and 'admixture' AND all salts, isomers, esters or ethers of any substance AND all salts of those isomers, esters and ethers. (e) The definition referred to in (d) above is undoubtedly the legal source of the proposition that in New South Wales (as opposed for example, to the Commonwealth jurisdiction) the quantity of any prohibited drug is the total weight of the substance and not the weight of the pure drug. (f) The definition of 'prohibited drug' refers to 'any substance.' Accordingly, the definition of 'prohibited drug' should be read together with the definition of 'substance.' (g) On this construction, the definition of 'substance' does no more than expand upon and explain the use of the word 'substance' in the definition of 'prohibited drug." [Crown's written submissions, p 2-3]: 1. Furthermore, the contention that the s 3 definition of "substance" was intended by the legislature as a "catch all" for those substances which do not appear in either the Schedule or in the analogue provisions of the Schedule, must fail in the face of the words "specified in Schedule 1" which appear in the definition of "prohibited drug". 2. The Crown submitted that there are a number of other reasons why the s 3 definition of "substance", taken alone, is incapable of defining a prohibited drug: "(i) The definition uses the word "includes" as distinct from the word "means" used in the definition of 'prohibited drug.' (ii) Reliance on the definition of 'substance' to catch an unlisted drug is in direct conflict with the definition of 'prohibited drug' which mandates that the 'substance' be 'specified' in the Schedule. (iii) The definition contains the words "preparation" and "admixture." These words could not possibly have any bearing on the process of deeming certain substances as prohibited drugs. To maintain otherwise would be to deem substances such as glucose, flour and other substances commonly used for 'cutting' purposes, in and of themselves, as 'prohibited drugs'. (iv) The definition of 'prohibited drug' contains the words; 'any substance' which are qualified by the words; 'specified in Schedule 1.' The words "any substance" are further qualified by the description of "substance" which includes… isomers salts, ethers etc. This leads to the conclusion that the description of what is included as a 'substance' in the definition section is to be read together with the definition of 'prohibited drug', for the purpose only of describing the word 'substance' in that definition. So, for example, a quantity of white powder seized at a search warrant may weigh say, 1 kg. After analysis it is found that the powder contains 25% heroin and the balance is admixture. The Section 3 description of the word 'substance', taken together with the fact that heroin is listed in Schedule 1, means that for the purposes of the Act, the accused would be charged, not with the possession of 250g of heroin, but with 1kg of heroin. (v) The Section 3 description of what is capable of amounting to a 'substance' is what distinguishes NSW from Federal legislation in this regard. [Crown's supplementary written submissions, p 3] 1. In submitting that the NSW definition of "substance" is distinguished from the Commonwealth definition, the Crown contended that support for its construction could be found in the Attorney General's Second Reading Speech of the Drug Misuse and Trafficking Bill on 26 November 1985: "Another problem that has been overcome in the Bill is the question of the mixtures of drugs, such as heroin, with other non-prohibited substances. Drugs which have been 'cut down' or mixed with other substances are treated for all purposes and provisions' [sic] under the Bill, as if the drug was pure. This is important when the amounts which are set out in the Schedule to the Bill are considered." 1. The Crown's concession mirrored the arguments advanced by the applicant. The Court considered that the parties' construction of s 3 and the analogue provision of Schedule 1 of the DMT Act were correct. 2. Dextromethorphan is an antitussive commonly found in over-the-counter cold and flu cough syrups and is listed as a Schedule 2 and Schedule 4 drug in the PTG Act. It is not a prohibited drug within the DMT Act. Criminal costs? Submissions 1. The applicant seeks a certificate pursuant to s 2 of the CCC Act, for costs up to and including the judge's decision on 22 January 2016. 2. The applicant submitted that the prosecutorial discretion miscarried as the charges pursued against the applicant were not sustainable. The Crown had known since at least 23 October 2014, the date Ellis' report was served, that the substance in question was dextromethorphan. The applicant contended that a brief perusal of Schedule 1 of the DMT Act would have led to the conclusion that dextromethorphan was not a listed prohibited drug, and that at no time did the Crown argue that dextromethorphan was a "drug analogue". The applicant contended that it was unreasonable to institute proceedings and to prosecute the matter to trial when the applicant was charged with an offence unknown to the law. 3. The Crown submitted that the Court needed to find that the applicant had been "discharged" in order for a certificate to be granted, because the applicant had not been acquitted, nor had the Director of Public Prosecutions directed that no further proceedings be taken, pursuant to s 2(1)(a) of the CCC Act. The Crown did not concede that the applicant had been "discharged" in accordance with the CCC Act. The Crown pointed out that the term "discharged" is not defined in the CCC Act. The Crown referred to Butterworths Concise Australian Legal Dictionary, which defines "discharge" as follows: "Criminal Law 1. An order made at the conclusion of committal proceedings when the committing magistrate is not satisfied that there is sufficient evidence to justify the defendant being committed for trial…" 1. The applicant argued that as the indictment was quashed, he had been "discharged" in accordance with the CCC Act. Consideration 1. Section 2 of the CCC Act provides that a certificate may be granted in the following circumstances: "2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or (b) where, on appeal, the conviction of the defendant is quashed and: 1. The defendant is discharged as to the indictment upon which he or she was convicted; or 2. The information or complainant upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings." 1. The form of the certificate is prescribed in s 3 of the CCC Act: "3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances." 1. The history of s 2 has recently been comprehensively discussed in DAO v R (No 3) [2016] NSWCCA 282 at [11]–[34] (per Meagher JA) ("DAO"). It is unnecessary to repeat that history here. It is evident that the term "discharged" is not confined to committal proceedings" Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at p 742 (per Gleeson CJ); Director of Public Prosecutions v Howard (2005) 64 NSWLR 139 at [32]–[34] (per Hoeben J, as his Honour then was). 2. In DAO, the Court's analysis focussed on the construction to be given to the term "discharged" in relation to a successful appeal against conviction under s 2(1)(b)(ii), whereas the question in this case arises under s 2(1)(a). However, what was said by Meagher JA as to the operation of s 2 is apposite: "The purpose of the Costs Act is to enable the payment in appropriate cases of costs incurred by an accused in successfully defending a criminal charge. Section 2(1) recognises that such success may occur in proceedings at first instance or following an appeal from conviction. To enliven the power to grant a certificate, the outcome in either case must finally dispose of the proceedings relating to the offence in favour of the accused." 1. The Crown does not dispute that the applicant's trial had commenced before the judge. The effect of this Court's decision is that the applicant had been charged with an offence unknown to law. No further proceedings under the DMT Act can be brought against him for the supply of dextromethorphan as it is not a prohibited drug. The indictment has been quashed and the proceedings have been finally disposed of in the applicant's favour. The applicant has been discharged in relation to the offence concerned. 2. In these circumstances, the applicant is to have a certificate under s 2(1)(a) of the CCC Act for costs up to and including the judgment of Syme DCJ on 22 January 2016. The applicant is directed to provide to the Court a draft certificate in the form prescribed in s 3 of the CCC Act within 14 days of today. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 February 2017