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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Bartrim  QSCPR 7
BS 1669 of 2018
Application under s 590AA Criminal Code
Supreme Court of Queensland at Brisbane
31 July 2019
15 July 2019
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – OPINION EVIDENCE – EXPERT EVIDENCE – Where drug identity proved via section 233BA Customs Act 1901 Certificate – Where evidence challenged on the basis that the scientific method was not disclosed
B Mumford for the Crown
S Holt QC for the accused
Director of Public Prosecutions (Qld) for the Crown
Hannay Lawyers for the accused
HER HONOUR: I consider the evidence admissible. I’ll give my reasons now.
This is a ruling in a pre-trial application to exclude evidence.
Sammuel Bartim is charged on indictment with three federal offences. The first is that he imported a commercial quantity of a border controlled drug, namely N-Ethylpentylone, a drug analogue of the border control drug butylone. The second is that he attempted to possess a commercial quantity of that same drug and the third is irrelevant for the purposes of this application.
Bartim’s trial is listed to commence on 5 August 2019. On 15 July 2019 I heard the defendant’s application for a ruling excluding:
The opinion evidence of Alexandra Doddridge, that the relevant substance identified is N-Ethylpentylone.
Ms Doddridge is an analyst with the Australian Forensic Drug Laboratory. She gave evidence and was cross-examined at the hearing of the application.
Michael Collins is the Director of the Australian Forensic Drug Laboratory. He too gave evidence and was cross-examined at the hearing of the application.
Written submissions were made by the parties after the hearing in accordance with the timetable set by me.
The application proceeded on the assumption that it was intended that the prosecution would call at Bartrim’s trial Ms Doddridge, to give expert opinion evidence to the effect that she had examined the substance which had been seized and that her tests revealed that it contained N-Ethylpentylone. Her “proof of evidence” was in a document entitled “Certificate – Customs Act 1901 Section 233BA”. Nevertheless, it was treated as a witness statement by the parties to the hearing.
The focus of much of the attack upon her “opinion” evidence was upon the fact that she had not included in the document entitled “Certificate”, details about the reliable body of learning upon which her identification of the drug was based. Nor, it was contended, did she explain in the certificate that while she conducted certain tests upon the substance it was another more experienced scientist who identified the drug.
Ms Doddridge was cross-examined with a view to establishing that her methods of analyses fell short of internationally accepted drug identification guidelines which had been incorporated into the methods of analysis employed at her laboratory and that, accordingly, her scientific testimony was unreliable and inadmissible.
The applicant argued in the alternative that if her opinion was admissible it ought to be excluded in the exercise of my discretion because it contained no proof of the underlying science behind it or of the appropriate application of the underlying science.
Unfortunately the significance of the fact that Ms Doddridge’s evidence was given by way of a certificate under the Customs Act was overlooked at the hearing and in the parties’ written submissions made after the hearing. As I have noted, the hearing proceeded as if the certificate was the equivalent of a statement of a witness. In my view it was not. It had other evidential force by virtue of the legislation.
Having identified that deficiency in the parties approach to this matter I called for further written submissions which I have considered.
The relevant section of the Customs Act is section 233BA. It applies to these proceedings because they concern offences under part 9.1 of the Commonwealth Criminal Code.
The section states:
“233BA Evidence of Analyst
- (1)The Comptroller-General of Customs may appoint a person to be an analyst for the purposes of this Act or Part 9.1 of the Criminal Code.
- (2)Subject to subsection (4), in any proceedings for an offence against section 233BAA or Part 9.1 of the Criminal Code, or in any proceedings for an offence against section 233BAB, 233BABAB or 233BABAC, in so far as that section relates to specified anti-personnel sprays or gases, radioactive substances, human body tissue or human body fluid, a certificate of an analyst in an approved form stating, in respect of a substance in relation to which the offence is alleged to have been committed:
- (a)that the analyst signing the certificate is appointed under subsection (1); and
- (b)when and from whom the substance was received; and
- (c)what, if any, labels or other means of identifying the substance accompanied it when it was received; and
- (d)what container or containers the substance was contained in when it was received; and
- (e)a description, and the weight, of the substance received; and
- (f)when the substance, or a portion of it, was analysed; and
- (g)a description of the method of analysis; and
- (h)the results of the analysis; and
- (i)how the substance was dealt with after handling by the analyst, including details of;
- (i)the quantity retained; and
- (ii)the name of the person, if any, to whom any retained quantity was given; and
- (iii)measures taken to secure any retained quantity;
is admissible as prima facie evidence of the matters in the certificate and of the correctness of the result of the analysis.
- (3)For the purposes of this section, a document purporting to be a certificate referred to in subsection (2) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.
- (4)A certificate shall not be admitted in evidence under subsection (2) in proceedings for an offence unless the person charged with the offence or a solicitor who has appeared for the person in those proceedings has, at least 14 days before the certificate is sought to be so admitted, been given a copy of the certificate together with reasonable notice of the intention to produce the certificate as evidence in the proceedings.
- (5)Subject to subsection (6), where, under subsection (2), a certificate of an analyst is admitted in evidence in a proceeding for an offence, the person charged with the offence may require the analyst to be called as a witness for the prosecution and the analyst may be cross-examined as if he or she had given evidence of the matters stated in the certificate.
- (6)Subsection (5) does not entitle a person to require an analyst to be called as a witness for the prosecution unless:
- (a)the prosecutor has been given at least 4 days notice of the person’s intention to require the analyst to be so called; or
- (b)the Court, by order, allows the person to require the analyst to be so called.”
The duly appointed analyst in this case is Alexandra Doddridge.
I have already mentioned that the trial involves proceedings for an offence under part 9.1 of the Criminal Code.
Ms Doddridge’s certificate otherwise meets the requirements of section 233BA.
I note that the results of the analysis are expressed in third person within the certificate. That is, in this way:
The following results of the analysis were obtained.
Section 233BA was introduced into the Customs Act by the Customs and Excise Legislation Amendment Act of 1989. The explanatory notes to the amending Act explain that it was inserted into the Customs Act at the request of the Commonwealth Director of Public Prosecutions to expedite proceedings.
The effect of sub-section 2 of section 233BA is to render a conforming certificate’s statements about the results of an analysis of a substance admissible as prima facie evidence of the correctness of the result of the analysis of the substance.
In other words, Ms Doddridge’s certificate provides prima facie evidence that within the substance seized was a chemical correctly identified as N-Ethylpentylone.
Unless she is required for cross-examination, Ms Doddridge herself would not be a witness in the prosecution case. The section itself provides for the circumstances in which a defendant may request an analyst such as Ms Doddridge to attend for cross-examination.
The Crown case as it stands at the moment does not include expert opinion evidence from Ms Doddridge as to the identity of the drug in the substance seized as that sort of evidence is ordinarily understood. The Crown case, as it stands at the moment, relies on the certificate as prima facie proof of the identity of the drug in the substance seized.
It follows that arguments that Ms Doddridge’s evidence ought to be excluded because it did not meet the legal pre-conditions for admissibility, in that it did not reveal the reliable body of learning upon which it was said to have been based, or that she did not include certain things in her “statement” are, with respect, misconceived.
Where the Crown seeks to prove the identity of a drug within a substance by way of the admission of a section 233BA certificate, the legal pre-conditions for admissibility of that evidence are as set out in that section.
The defendant also argued that Ms Doddridge did not have the relevant expertise to give evidence about the identity of the substance. For the same reason, section 233BA deals with that argument.
The defence complained that it was “profoundly unfair” that it was not until a pre-trial application that the defence learnt that the identification opinion expressed in the certificate was not that of Ms Doddridge but of Dr Salouros. That complaint too was disposed of by reference to this section.
So too is any argument about the defence being taken by surprise by the evidence of Dr Collins.
Plainly, the section is designed to facilitate efficient proof of the identity of a substance. It is designed to relieve the Crown from having to prove the science underlying the analysis and the several steps taken in the course of the analysis of the substance within a laboratory - including the detail of the several scientists, or perhaps lay employees, involved in the process.
On the strength of this section I may proceed on the basis that the Crown has admissible evidence of the identity of the seized substance. Of course, otherwise admissible evidence may be excluded in the exercise of my discretion. The defendant urges me to do so, arguing that it is “more prejudicial than probative” or that it would be “unfair” to admit the evidence. He asserts that the techniques of analysis employed by the laboratory fell below the minimum standards for the identification of illicit substances and for that reason the evidence of the identity of the drug ought to be excluded.
The evidence tendered at the hearing, oral and otherwise, does not cause me any concerns about the reliability of the results of the analysis of the substance.
I do not consider the evidence of identification of the drug of low probative value because of any flaws in its analysis. Nor does it carry, therefore, a risk that the jury might give it weight beyond that which it deserves. Nor do I consider that to admit the evidence as contained in the certificate would be unfair, in the relevant sense, to the defendant.
The drug found within the substance N-Ethylpentylone was a novel one, as that word was used by the analysts. No technique had been validated for its identification. However, it could be identified from first principals and in particular the correct application of the NMR technique, with its results corroborated by other techniques. And that is what occurred in this case.
The relevant guidelines accommodated the need for an “analysis from first principles approach” for novel substances by acknowledging that they, the guidelines, were not appropriate in all circumstances for all drugs.
I refer to part 3B of the SWG Drug Guidelines which is entitled “Methods of Analysis/Drug Identification”. Its introduction begins:
The purpose of part 3B is to recommend minimum standards for the forensic identification of commonly seized drugs.
Its concluding paragraph states:
These recommendations are minimum standards for the forensic identification of commonly seized drugs. However, it should be recognised that they may not be sufficient for the identification of all drugs in all circumstances…
As I said, there was no validated technique of analysis for the substance N-Ethylpentylone.
The evidence of Ms Doddridge and Dr Collins refer to the capacity of a first principles NMR analysis to reveal the molecular structure of the molecule. I hasten to add that I am not under a false impression that NMR analysis produces a two dimensional or three dimensional image of the relevant molecule. I appreciate that the results of the NMR analysis require examination by a person with relevant expertise in the area. But Dr Collins gave evidence, which I found particularly persuasive, about the reason for a first principles approach to the identification of the drug in this case and persuasive evidence as to the accuracy of the identification of the drug by his colleague Dr Salouros.
That particularly persuasive evidence as to the accuracy of Dr Salouros’s identification was in the fact that it was out of curiosity or interest that he too looked at the NMR results and was satisfied that the drug was correctly identified as N-Ethylpentylone. He further confirmed the identification by reference to journal articles. He explained that the NMR technique was probably the most powerful analytical tool available to chemists. He explained that N-Ethylpentylone was a simple molecule. Its NMR spectrum was, in his words, quite simple. Its identification was confirmed by mass spectrum analysis and he had no doubt about it himself. He persuasively, and in a common sense way, explained the need for the validation of the NMR technique, namely, to ensure that it was able to count accurately protons or hydrogen atoms, and why there was no requirement to validate it for a specific compound.
Further, in my view, in the circumstances, the absence of documentation about which the applicant complained was of no concern.
The results, in the form of output from various, I assume, machines, of the several methods of analysis undertaken have been disclosed.
It is reasonable to infer, from that which has been disclosed, that the relevant expert – in this case, Dr Salouros – studied the various results and reached her conclusion about the identity of the drug, including, as I understand things, with reference to other material that has also been disclosed. So for example, the material disclosed includes the Drug Enforcement Administration’s Special Testing and Research Laboratory generated monographs for N-Ethylpentylone, using confirmed reference material revealing, among other things, the results of the NRM analysis, gas chromatography/mass spectrometry analysis and FTIR analysis of the confirmed reference material, which I have assumed were considered in the course of the analysis of the substance in question.
Dr Salouros’s various worksheets have been disclosed. It is difficult to understand what more the defendant seeks in terms of disclosure. As Dr Collins explained, the only documents which would have been consulted would be the relevant spectres generated by way of the analyses undertaken.
The absence of Dr Collin’s notes is not of concern. He was not looking at the results of the analysis for the purpose of identifying the drug in anticipation of having to give evidence about its identification in these proceedings. He was interested in the results because it was a novel substance. As I have mentioned, his confidence about the accuracy of the identification adds to the reliability of the analysis undertaken specifically for the purposes of providing evidence to the prosecution.
To conclude, overall I consider that the approach to the analysis of the substance and the identification of the drug does not raise any issue about the reliability of the certificate.
There was compliance with the guidelines in circumstances where the drug was a novel substance.
Evidence of the identification of the drug is not of low probative value and there is no risk that the jury will attach to the evidence of the identification of the drug unfairly disproportionate weight. Indeed, evidence of the identification of the drug is of high probative value, in my view.
Nothing about the certificate, or its contents, or its conclusions, or the evidence I heard pre-trial, causes me to conclude that it would be unfair in the relevant sense for that evidence to be used in the case against Mr Bartrim. Accordingly, I refuse the application.
- Published Case Name:
The Queen v Sammuel Bartrim
- Shortened Case Name:
The Queen v Bartrim
 QSCPR 7
31 Jul 2019