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R v Barrett[2019] QDC 44

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Barrett [2019] QDC 44  

PARTIES:

R

v

BARRETT, Phaedra Joy

(defendant)

FILE NO/S:

Indictment 208 of 2016

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court Maroochydore

DELIVERED ON:

12 April 2019

DELIVERED AT:

Maroochydore

HEARING DATE:

1 April 2019 – 5 April 2019

JUDGE:

Cash QC DCJ

VERDICT:

I find the defendant guilty of counts 1, 2, 3, 5, 6 and 7.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – TRAFFICKING IN A DANGEROUS DRUG –PRODUCING A DANGEROUS DRUG– DEFINITIONOF DANGEROUS DRUG – where the defendant was charged with traffickingin and producing adangerous drug – wherethe chemicals used by the defendant were not at the time listed in the schedules to the Drugs Misuse Regulation 1987 – extended definition – chemical structure – substantially similar – pharmacological effect

CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – TRAFFICKING IN A DANGEROUS DRUG – PRODUCING A DANGEROUS DRUG – DEFINITION OF DANGEROUS DRUG – meaning of “carrying on a business” – meaning of “produce” – acts preparatory to, in the furtherance of, or for the purpose of – intention to prepare, manufacture, cultivate or produce.

CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – where the defendant was charged with possessing money knowingly obtained from the crime of trafficking – whether money was knowingly obtained from trafficking – circumstantial evidence – reasonable or rational inferences.

Criminal Code (Qld) s 615

Drugs Misuse Act 1986 (Qld) ss 4, 5, 7, 8, 9 & 10

Drugs Misuse Regulation 1987 (Qld) Schedules 1 & 2

Evidence Act 1977 (Qld) ss 39PB, 39PC

The Queen v Hiller (2007) 228 CLR 618, 637, [46]

COUNSEL:

A Q Stark for the prosecution

C M Hurley for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the prosecution

Neale Tobin Solicitor for the defendant

Introduction

  1. [1]
    The defendant Phaedra Joy Barrett was charged on indictment with seven offences. They were as follows:
  1. 1.
    That between 30 April 2013 and 30 August 2014 she carried on the business of unlawfully trafficking in a dangerous drug;
  2. 2.
    That between 30 April 2013 and 30 August 2014 she unlawfully produced a dangerous drug;
  3. 3.
    That between 30 April 2013 and 30 August 2014 she unlawfully produced a dangerous drug;
  4. 4.
    That on 29 August 2014 she unlawfully possessed a dangerous drug;
  5. 5.
    That on 29 August 2014 she possessed cash knowingly obtained from trafficking;
  6. 6.
    That on 29 August 2014 she possessed mobile phones and a computer she had used in connection with the commission of the crime of unlawful trafficking;
  7. 7.
    That on 29 August 2014 she had in her possession plant material, scales, flavourings and labels that she had used in connection with the commission of the crime of producing a dangerous drug.
  1. [2]
    In short, it was alleged that the defendant operated a business in which she sold dried vegetable material treated with chemicals. The prosecution case was that the chemicals were examples of a broad category of chemicals that can be described as “synthetic cannabinoids”. The chemicals the defendant was alleged to have used were not at the time “a thing specified in the DrugsMisuseRegulation1987, schedule 1 or 2”. At the time of the alleged offences section 4 of the Drugs Misuse Act 1986extended the term “dangerous drug” to include a thing that “has a chemical structure that is substantially similar to the chemical structure” of a thing listed in the schedules; and to a thing that is “intended to have a pharmacological effect that is substantially similar to the pharmacological effect” of a thing listed in the schedules. The prosecution relied upon these provisions to allege the defendant trafficked in, and produced, a dangerous drug.
  1. [3]
    In November 2018, it was ordered pursuant to section 615 of the CriminalCode(Qld)that the defendant be tried by a judge sitting without a jury. On 1 April 2019 the defendant was arraigned before me and the trial commenced. The defendant pleaded not guilty to counts one, two, three, five, six and seven. She pleaded guilty to count four, the unlawful possession of a dangerous drug. That count concerned a chemical substance, (1-Pentylindol-3-yl)-(2,2,3,3-tetramethylcyclopropyl) methanone or UR-144, found at her house on 29 August 2014 when the police conducted a search. This chemical was at the time specified in schedule 2 of the Drugs Misuse Regulation1987. The fact the defendant pleaded guilty to this charge is not relevant to my consideration of the balance of the charges. No inference is to be drawn from the fact of her plea and the prosecution does not point to her possession of UR-144 as supporting a finding of guilt on any of the remaining counts.
  1. [4]
    Evidence was called over three days. Much of it was not in dispute. The prosecution called three police officers and a chemist who testified about relevant chemicals found during the investigation. The defendant did not give evidence herself but elected to call a chemist to testify. Closing submissions took place over two days. Having considered the evidence and the submissions of counsel I am satisfied beyond reasonable doubt of the defendant’s guilt in relation to counts one, two, three, five, six and seven. What follows are my reasons for reaching this conclusion. I commence with a consideration of the elements of the offences.

Elements of the offences

  1. [5]
    To prove the defendant is guilty of unlawfully trafficking in a dangerous drug (“trafficking”) the prosecution must prove that she:
  1. 1.
    Carried on a business;
  2. 2.
    Trafficking in a dangerous drug; anddrug;
  3. 3.
    Did so unlawfully.
  1. [6]
    Carrying on a business connotes a continuous course of conduct engaged in to obtain a reward of a commercial character. Proof that the defendant trafficked in a dangerous drug requires proof that the she dealt in a substance that was a “dangerous drug” as that term is defined in the Drugs Misuse Act 1986. The relevant form of the legislation is that current as at 29 April 2013 which relevantly provided:

dangerous drug means–

(a)a thing specified in the Drugs Misuse Regulation 1987, schedule 1 or 2 or, where the thing so specified is a plant, any part of the thing; and

...

(c)a thing that—

(i)has a chemical structure that is substantially similar to the chemical structure of a thing referred to in paragraph (a) or (b); or

(ii)has a pharmacological effect that is substantially similar to the pharmacological effect of a thing referred to in paragraph (a) or (b); or

(iii)is intended to have a pharmacological effect that is substantially similar to the pharmacological effect of a thing referred to in paragraph (a) or (b)”

  1. [7]
    The prosecution case relied upon (c)(i) and (c)(iii). It was said that the chemicals used by the defendant (quinolin-8-yl 1-pentyl-1-indole-3-carboxylate or PB-22 and quinolin-8-yl 1-(5-fluoropentyl)-1-indole-3-carboxylate or 5-Fluoro PB-22) had a chemical structure that was substantially similar to two chemicals specified in the schedule, those being JWH-018 and AM-2201 respectively. Alternatively, it was alleged the defendant intended the substances she sold to have a substantially similar pharmacological effect to cannabis or cannabinoids, both of which are specified in the schedules. It was necessary for the prosecution to prove at least one of these matters to establish that the defendant trafficked in a dangerous drug.
  1. [8]
    In the event the first two matters were established there was no suggestion the defendant’s conduct was anything other than unlawful.
  1. [9]
    The offence of producing a dangerous drug, as alleged in counts two and three, required proof that a person:
  1. 1.
    Produced;
  2. 2.
    A dangerous drug; and
  3. 3.
    Did so unlawfully.
  1. [10]
    “Produce” is defined expansively and includes to “prepare, manufacture, cultivate, package or produce” or to do an act that is “preparatory to, in the furtherance of, or for the purpose of” one or more of those things. The latter must involve doing an act with the intention of preparing, manufacturing, cultivating or packaging a dangerous drug. Late in the trial it was suggested by the defendant that the prosecution had put its case only on the narrower basis that the defendant actually prepared, manufactured, cultivated or packaged and should not be allowed to rely upon the broader definition. The defendant’s counsel was unable to point to any relevant prejudice or unfairness that might result from reliance upon the broader definition. There is no reason to restrict the prosecution to only the narrower part of the definition.
  1. [11]
    If the prosecution proved that the defendant “produced” something, reliance is placed on the definition set out above to prove that it was a “dangerous drug”. Again there was no suggestion that if the defendant produced a dangerous drug it was anything other than unlawful.
  1. [12]
    Count five alleged the defendant possessed an amount of cash knowingly obtained from the crime of trafficking. To prove guilt of this offence required the prosecution to prove the defendant:
  1. 1.
    Possessed the money;
  2. 2.
    It was obtained from trafficking; and
  3. 3.
    The defendant knew it was obtained from trafficking
  1. [13]
    The total cash found in the defendant’s possession was around $77,000. It was not necessary for the prosecution to prove all of the money was knowingly obtained from trafficking.
  1. [14]
    Count six alleged the defendant possessed phones and a computer she had used in connection with the crime of trafficking. Proof of this offence required proof that she:
  1. 1.
    Possessed the things (being the phones and computer); and
  2. 2.
    They had been used by the defendant in connection with the trafficking alleged in count one.
  1. [15]
    It was not necessary to prove all three things were possessed and used by the defendant in this way.
  1. [16]
    Count seven alleged a similar offence; that the defendant possessed things in connection with the crime of producing a dangerous drug. Proof of the offence required proof that the defendant:
  1. 1.
    Possessed the thing/s; and
  2. 2.
    They had been used by the deft in connection with production alleged in either count two or count three.
  1. [17]
    Again, it was not necessary to prove all of the things were possessed and used by the defendant in this way.

What is in dispute?

  1. [18]
    It is helpful to set out what emerged as the real issues in dispute in the trial. The no jury order was made on the basis that the matter in dispute was whether certain chemicals were a “dangerous drug”. As the trial progressed it became apparent the dispute was wider than that. At the same time the scope of the dispute about the nature of chemicals narrowed. The defendant disputed that she carried on a business or that she “produced” anything as that word is used in the DrugsMisuseAct1986. She also disputed that she obtained the money, the subject of count five, from the business alleged in count one.
  1. [19]
    In response to the allegation that she carried on a business, the defendant submitted the evidence was not sufficient to exclude, as a reasonable possibility, her business had been sold to, and was at the time alleged in the indictment being run by, a person named Mark Cullinane to the exclusion of the defendant. As to “production” the defendant submitted the evidence is insufficient to support a finding that the defendant did some act that constituted production, at least within the time period alleged in the indictment. Regarding the money the defendant submitted that even if she is guilty of trafficking there is insufficient evidence that the money found at her house was obtained from that trafficking. Here, the defendant points to evidence of a successful cash business at a time not long prior to the dates in the indictment.
  1. [20]
    While the defendant denied her guilt in relation to counts six and seven, it was on the basis that she did not traffic in or produce a dangerous drug. The parties agreed that in the event I was satisfied of her guilt on counts one, two and three, the facts that would underpin such a finding would logically mean she must also be guilty of counts six and seven.

Evidence

  1. [21]
    The evidence consisted largely of the testimony of three police officers supplemented by various documents. As well there was the testimony of the two chemists, one called by the prosecution and the other by the defendant. I have considered, but do not intend to recite, all of the evidence. It is of assistance to set out the following timeline of events which was established by the evidence.
  1. [22]
    May 2012 to November 2012. The defendant was operating a business called either “Get High” or “Herbal Express” in which she sold chemically treated vegetable matter to customers. There was no suggestion anything she did at that time was illegal.
  1. [23]
    22 November 2012 – late April 2013. The defendant corresponded with her solicitor about pending legislative changes to the definition of “dangerous drug”.
  1. [24]
    Late May 2013. The defendant was made aware of emails from customers complaining about the poor quality of product they had purchased. She discussed offering a “special deal to try and save some of the clients who are disappointed” and trying to “sort them out” as soon as she got “some strong stuff”.
  1. [25]
    4 June 2013. A post office box was opened at Caloundra in the name of Mark Cullinane using a UK passport issued in that name in March 2013.
  1. [26]
    19 September 2013. The defendant emailed what appears to be her website administrator asking her to advertise a sale on the “Get High” website offering 28 grams, 50 grams and 100 grams.
  1. [27]
    3 January 2014. The defendant sent an email to “[email protected]” with the subject heading “Customer Notes”. The email detailed the names and purchasing behaviour of a number of people.
  1. [28]
    12 May 2014. The defendant sent an email to “[email protected]” asking about the purchase of one kilogram of “PB-22 powder” for US$1,000 to be delivered to an address in West Sussex, England.
  1. [29]
    19 May 2014. The defendant sent an email to “chemsky” confirming payment and in response received an email advising one kilogram of “PB-22” had been shipped. An entry in one of the defendant’s bank accounts shows an international payment of AU$1,116.90 that day.
  1. [30]
    31 May 2014. The defendant asked “chemsky” about another one kilogram of “PB-22”. She was advised it was in stock and ready to be shipped once payment of US$1,000 was received.
  1. [31]
    25 August 2014. Police intercepted a package addressed to Mark Cullinane at the Caloundra post office box opened in June. The label indicated it had been sent from Brighton in England. The package contained two plastic bottles labelled “Pineapple Flavour”. The bottles held a powder suspended in a liquid. The powder contained the chemical PB-22. Police decanted the contents of the bottles and replaced it with a similar looking but inert substance. The packages were delivered to the post office box.
  1. [32]
    29 August 2014. Just before 10 am, and within a couple of hours of being advised by text message the package had arrived, the defendant collected the package addressed to Mark Cullinane from the Caloundra Post Office. At about 5 pm that day police searched the defendant’s home. She was present. They found:
  • A mobile telephone on which were the messages shown in exhibit 17;
  • The key to the Caloundra post office box;
  • Bank cards for two accounts in the name of Mark Cullinane, one through ANZ and the other the Commonwealth Bank;
  • A UK passport issued to Mark Cullinane in March 2013;
  • A folder containing documents (exhibit 14);
  • Express Post envelopes pre-signed with sender details recorded as “M Cullinane” or “MC” and addressed to persons whose details corresponded with details in text messages on the phone or noted in the folder above;
  • A computer from which emails were downloaded (exhibit 27);
  • $77,350 in cash, mostly in $50 notes;
  • Packaged dried vegetable material and other items that could be used to prepare “synthetic cannabis”;
  • Clip seal plastic bags containing varying quantities of dried vegetable material that had been treated with PB-22 and/or 5-Fluro PB-22. Some of these bags bore labels such as “XXX”, “Irish Cream”, “Demon Strength” and “Raspberry”;
  • A key to a storage shed rented in the defendant’s name that contained other items that could be used to produce “synthetic cannabis”.
  1. [33]
    24 September 2014. Police intercepted a second package essentially identical to the first. This also contained two bottles labelled “Pineapple Flavour” and in which was found the chemical PB-22.
  1. [34]
    The prosecution relied upon a statement made by the defendant during the search to the effect that while Mark Cullinane had purchased her business in 2013 she was “running or working the business” while he sorted out issues with the transfer of the business and website. In addition the prosecution relied upon the contents of emails, the items found during the searches, messages on a phone found in her handbag and bank transactions to sustain the inference that the defendant was carrying on a business selling vegetable matter that had been treated with chemicals including PB-22 and 5-Fluro PB-22. The prosecution relied upon much the same evidence to prove the defendant had done, at least, an act “preparatory to, in the furtherance of, or for the purpose of” preparing, manufacturing, cultivating or packaging the chemicals and vegetable matter.[1]
  1. [35]
    To prove the defendant knowingly possessed money being the proceeds of trafficking the prosecution pointed to the unlikelihood, if the defendant was trafficking, that she amassed $77,000 legitimately.

Particular Matters

  1. [36]
    In considering the evidence and reaching verdicts in this matter I have had particular regard to the following matters.
  1. [37]
    There are several charges alleged against the defendant. I have considered each charge separately, evaluating the evidence relating to that particular charge to decide whether the prosecution has proved its essential elements.
  1. [38]
    Where I have been asked to draw an inference from established facts, I have only drawn an inference of guilt where, in my view, it is the only rational inference that could be drawn from the circumstances.
  1. [39]
    Having received “expert” evidence over the telephone, [2]I have been careful not to give this evidence any more or less weight, or draw any adverse inferences against a party to the proceeding, only because the evidence was received by audio link.[3]
  1. [40]
    Both chemists called in the trial were experts who offered helpful opinions about relevant matters. Neither party applied pursuant to section 39PB of the Evidence Act 1977 for a direction that they give oral evidence to the court. Regardless, I was happy to receive the evidence in this manner as it was clearly in the interests of justice to do so. Both witnesses referred to diagrams in explaining matters of chemistry, a process that would have been considerably more difficult over video link and probably impossible over audio link.
  1. [41]
    I am conscious that the issues of fact in this trial are decided by me, and not by the experts. I thought both chemists to be very well qualified and impartial. The relevant matters that formed the basis of the opinions were established by evidence. It is, of course,not possible to demonstrate in court bydirect evidencethat achemical is made up of particular atoms combined in a particular way. Atoms are not visible to the human eye. But as the experts agreed on matters of chemical composition there is no reason I should reject their views on this.
  1. [42]
    The prosecution relied upon a statement attributed to the defendant during the search to the effect that she sold the business to Mark Cullinane but was running or working the business while he resolved some matters. There was no real challenge to this statement in cross-examination, it being put to the police witness that the defendant said she was helping out while Mark Cullinane was overseas. I am satisfied that the defendant said words to the effect that she was running or working the business and that the statement was true. It appears the conversation was electronically recorded but the parties chose not to tender relevant parts. I have been cautious in accepting the statement was made as there is no independent evidence, before me at least, to prove that fact. But where the essence of the statement has not been challenged I am satisfied beyond reasonable doubt that it was said, and that it was true.
  1. [43]
    The defendant did not give evidence but did call evidence. I am required to reach a decision based upon all of the evidence, including that called by the defendant. Ihave not drawn any adverse inference against the defendant because she did not testify herself and I am conscious that the onus of proof rests always with the prosecution. In particular, I have not regarded the absence of explanation by the defendant of the messages contained in exhibit 17 as being a matter that supports or strengthens the prosecution case.

Consideration

Was the defendant “carrying on a business”?

  1. [44]
    I am satisfied beyond reasonable doubt that the defendant was carrying on a business. That business involved selling a product that consisted of dried vegetable matter treated with chemicals, principally PB-22. These products were packaged and dispatched by post. Payment was made by deposit into bank accounts. I have reached this conclusion having regard especially to the evidence of the defendant’s emails, messages on the phone found in her possession, the bank records and the statement to police that she was running or working the business.
  1. [45]
    There were emails in late May 2013 that could properly be described as customer complaints. These were brought to the attention of the defendant and she proffered methods for dealing with these complaints. In January 2014, the defendant was advising someone of her customers and their habits. In May 2014 she was enquiring about or ordering PB-22. It is true that these were ordered for delivery to an address in England and there is no evidence these particular orders made their way to the defendant in Australia. But given the method of delivery of the packages intercepted in August and September 2014, and given the inherent unlikelihood the defendant would pay US$1,000 to send a chemical to a person in England, I am satisfied that there is no other reasonable explanation except that the defendant ultimately received the earlier order or orders.
  1. [46]
    Messages were extracted from a telephone found in the possession of the defendant (exhibit 17). Some messages refer by number to a bank account with ANZ that was operated by “Vapeze Pty Ltd” as trustee for the Barrett Family Trust. The transfer of funds from this account to an account in the name of “Phaedra Barrett” support the conclusion the defendant operated the Vapeze account. The defendant made no submission that she was not the person behind this account. The messages indicate the sale of substances by weight for which money was paid into the account. For example, the following messages were sent from the phone on 21 May 2014:

How much were u wanting?

I have 50g $400 or 100g $750.

I will send bank details. I need ur address.

Do I address it to Brandlee?

Acc is. Name: vapese bsb 014556 acc: 266646765. ref. inv 2353.

  1. [47]
    Examination of the bank records show a deposit of $400 using the reference 2353 on 21 May 2014 into the Vapeze account with the details shown above.
  1. [48]
    Another example occurred on 3 and 4 July 2014:

Um I thought me pay was going to be in today but not until tomorrow Ive got 600 on me now can Iput that into ur account n I’ll put 350 in first thing in the morning for hassle

Ok

Cheers mate can u resend me ur bank details again Ideleted it byaccident

Vapese. Bsb 014556 acc 266646765

Do I use a ref number on me way to the bank

Nah, dont need one

600 in there mate

Cheers. Tracking is ja0001843602

I just put 350 in the bank mate

Thnx

  1. [49]
    Bank records show two deposits: $600 on 3 July 2014 and $350 on 4 July 2014. Similar messages and corresponding deposits are found on other dates, such as 29 May 2014 ($1,900), 2 April 2014 ($400), 17 February 2014 ($400) and 4 February 2014 ($1,050). Other references to the bank account can be found in messages on 26 November 2013 and 4 December 2014. The prosecution did not tender bank account statements for the period between 8 November 2013 and 8 January 2014 so there is no proof of corresponding deposits for these messages.
  1. [50]
    Manymessages refer to products with names such as “Irish”, “Raspberry” and others, consistent with the labelling found in the defendant’s home. On 19 June 2014 a message is sent from the phone found in the defendant’s possession to “Andrew or Brandlee”, the same person or persons involved in the conversation of 3 and 4 July 2014 that resulted in $950 being deposited into the Vapeze account. The message stated, “non of those. Iwld be mad to tell u exactly, but its nothing scheduled for legal reasons, nor a known analogue. Try to keep it safe as pos and stay under the radar that way.” While there is a strong inference to be drawn that this message was sent by the defendant, taken on its own I could not be satisfied of that beyond reasonable doubt. But the message is just one circumstance. The fact this message was sent to someone involved in buying things from the defendant within a couple of weeks of a transaction is evidence that supports the inferencethedefendant’s business concerned what is generally known as “synthetic cannabis”.
  1. [51]
    There are messages on the phone that are seemingly authored by “Mark”. But as well, in December 2014 and January 2014, a person sends messages referring to Mark being in New Zealand and the writer “manning the phones”. Viewed in its entirety the evidence proves, beyond reasonable doubt, the defendant was carrying on a business. This is so even if it were to be assumed in favour of the defendant that Mark was also using the phone to conduct transactions. It may well be that a person called Mark Cullinane existed and was involved in the business. A message on 12 September 2013 reads, “Sorry mate my partner dose note like the idea I can do kg of demon for 5k,” supports such a conclusion. But whatever the involvement of this person I am satisfied the acts of the defendant amount to her carrying on her own business. The evidence of the materials discussed in the text messages and the items found in her possession prove beyond reasonable doubt that business concerned selling vegetable matter treated with the chemicals PB-22 and 5-Fluoro PB-22.
  1. [52]
    Having concluded the defendant was carrying on a business selling material treated with such chemicals it is necessary to consider if that concerned trafficking in a dangerous drug. The prosecution case is put on alternative bases: that the chemicals used by the defendant had a substantially similar chemical structure to things listed in the schedule or that the defendant intended them to have a substantially similar pharmacological effect.

Meaning of “chemical structure”

  1. [53]
    The first basis invites consideration and comparison of the “chemical structure” of the substances in question. What, then, does the term “chemical structure” mean? Is it the arrangement of atoms and their bonds within a molecule, separate from the properties of the molecule, such as its reactivity or pharmacological effect? This is the definition accepted by both chemists in their evidence and the parties do not submit I should proceed otherwise.
  1. [54]
    The legislative history of the Act supports this meaning. Before 2008 the definition of “dangerous drug” referred only to things specified in the schedules and “a thing being a salt, derivative or stereo-isomer of a [such a thing] or any salt of such a derivative or stereo-isomer”. In 2008 the definition was changed to include:

“a thing that has a chemical structure that is substantiallysimilar to the chemical structure of a thing [specified in the schedules] and that has a substantially similar pharmacological effect”(emphasis added).

  1. [55]
    Thus the definition at that time required consideration of both the structure of the substance and its pharmacological effect. If this conclusion needs support it is to be found in the Explanatory Notes to the Drugs Misuse Amendment Bill 2007 which stated:

“The definition … has been amended so as to include a chemical that is an analogue of a dangerous drug (i.e: a drug that is structurally similar and has a similar pharmacological effect to a dangerous drug listed in the DMR). The purpose of this amendment is to target underground chemists who make slight changes to the molecular structure of existing illicit drugs to create new drugs not covered by the law.”

  1. [56]
    Commencing 29 April 2013 the definition was again amended. Relevantly the definition provided a dangerous drug was a thing that:
  1. “(i)
    has achemical structurethat is substantiallysimilar to the chemical structure of a thing [specified in the schedules]; or
  1. (ii)
    has a pharmacological effect that is substantially similar to the pharmacological effect of a thing [specified in the schedules].”
  1. [57]
    The effect of the amendment was to separate the two considerations. No longer was it necessaryto provethe substancehad a similar structure and pharmacological effect. It was sufficient that it was substantially similar in one of those aspects. Again, if support for this conclusion is necessary it can be found in the Explanatory Notes to the Criminal Law (Child Exploitation and Dangerous Drugs) Amendment Bill 2012:

“Proving the second limb is often problematic given that many seized substances are new and yet to be tested as to their effect. The definition will be amended to provide that the Crown need only prove one of the limbs.”

  1. [58]
    It follows that the definition to be considered in this case invites attention to the chemical structure as distinct to the chemical properties of the subject in question.

Are the chemicals in question “substantially similar”?

  1. [59]
    Ms Helen Eldridge, the chemist called by the prosecution, is a forensic chemist employed at Queensland Health Forensic and Scientific Services. She has been so employed since 2002 and has tertiary qualifications in chemistry. Her expertise was not in issue. Ms Eldridge explained the common structure of the group of chemicals known as “synthetic cannabinoids”. Such chemicals consist of four groups, a core, a tail, a link (or bridge) and a ring. She said that while molecules inhabit a three dimensional space it is common and accepted in chemistry to represent molecules in a two dimensional diagram. Neither a two dimensional nor a three dimensional representation captures reality perfectly as in reality there is movement of the components of a molecule relative to other parts. However, such representations are accepted in chemistry as being sufficiently accurate to show the structure of a molecule.
  1. [60]
    Ms Eldridge used two dimensional diagrams to show the structure of the molecules that are the substances PB-22 and 5-Fluoro PB-22. Ms Eldridge also showed the chemical structure of JWH-018 and AM-2201, chemicals that were specified in schedule 2 of the Drugs Misuse Regulation 1987 at the relevant time. PB-22 differed from JWH-018 only to the extent that an additional oxygen atom was present in the link component and a nitrogen atom had replaced a bonded carbon/hydrogen in the ringcomponent. Thedifferences between5-Fluoro PB-22 and AM-2201 wereexactly the same. Ms Eldridge demonstrated the differences with reference to diagrams that are reproduced below (exhibits 36 and 38).

R v Barrett [2019] QDC 44

R v Barrett [2019] QDC 44

  1. [61]
    Ms Eldridge explained in considerable detail the make-up and structure of each component, such as the naphthyl and quinolinyl rings. It is not necessary for present purposes to descend to the same level of detail. Both molecules JWH-018 and PB-22 consist of 49 atoms. PB-22 has 23 carbon atoms, 22 hydrogens, two nitrogens and two oxygens. JWH-018 has 24 carbon atoms, 23 hydrogens, one nitrogen and one oxygen. 5-Fluoro PB-22 and AM-2201 also consist of 49 atoms each. 5-Fluoro PB-22 contains 23 carbon atoms, 21 hydrogens, one fluorine, two nitrogens and two oxygens. AM-2201 has 24 carbon atoms, 22 hydrogens, one fluorine, one nitrogen and one oxygen.
  1. [62]
    Ms Eldridge agreed that the molecules were all made up of four “functional groups”. A functional group is a particular arrangement of atoms seen often enough in organic chemistry to be given a specific name. Ms Eldridge accepted (as can be seen in the tables above) that in each case two of the four functional groups were designated by a different name: quinolinyl and carboxylate in the chemicals used by the defendant and naphthyl and carbonyl in the chemicals on the schedule. Or, as the defendant put it, half of the functional groups are different.
  1. [63]
    The appearance of the molecules in three dimensions would not be static. Parts of the molecule would move to satisfy the general rule that atoms will seek the least energetic arrangement. Ms Eldridge expected the main difference in the three dimension structure of the chemicals used by the defendant and those listed in the schedule would bethe additional oxygen would provide apivot point and thenitrogen in the ring structure might produce a less planar arrangement.
  1. [64]
    Dr Michael Robertson testified on behalf of the defendant. He too was an eminently qualified chemist. He did not disagree with the matters stated byMs Eldridge. Indeed, the two chemists appeared to agree on most matters, as one might expect. Dr Robertson spoke of small changes in a chemical structure having a possibly disproportionate effect on the properties of a chemical. The example offered concerned the hydrocarbon known as octane (C8H18). Adding a single oxygen atom to the chemical structure of octane will produce the alcohol octanol (C8H18O). A further oxygen atom will produce octanoic acid (C8H18O2). It may be accepted that small changes to structure can produce dramatic changes to properties, but that is not the same thing as concluding the chemical structure is not “substantially similar”.
  1. [65]
    In the end, the defendant’s only submission on this point was that because half of the functional groups were different I should not be satisfied the chemicals were “substantially similar”. But that is to overlook the other similarities identified above and what are, in my view, the very small differences to structure brought about by changing three atoms. While the functional groups have different names, the difference between carbonyl and carboxylate is the addition of a single oxygen atom and the difference between naphthyl and quinolinyl is substitution of a nitrogen atom for a carbon and hydrogen. In truth the structures of the groups, and the molecules made up of the groups, are substantially similar. It follows that the chemicals PB-22 and 5-Fluoro PB-22 are both a “dangerous drug” as that term was used in the Drugs Misuse Act 1986 at the relevant time.
  1. [66]
    Having so concluded it is unnecessary to consider the alternative basis proposed by the prosecution, that the defendant intended they have a substantially similar pharmacological effect to things specified in the schedules. There is evidence from which it could be inferred that the material sold by the defendant was intended by her to mimic the effects of cannabis. Indeed, that might be seen as the whole reason for the business. But in light of my finding about the chemical structure of the substances I need not consider this matter further.

Did the defendant “produce” a thing?

  1. [67]
    The evidence relied upon by the prosecution to prove the defendant produced dangerous drugs was substantially the same as that relied upon to prove trafficking. The defendant was found in possession of the dried vegetable material and chemicals from which “syntheticcannabis” of the sort alleged bythe prosecution could bemade. More importantly, I am satisfied beyond reasonable doubt that the defendant ordered and received the chemical PB-22 around May 2014. This on its own would be an act done for the purpose of manufacturing or packaging a dangerous drug. In addition the items found in the possession of the defendant compel the conclusion that she had packaged material containing PB-22 and 5-Fluoro PB-22 or was intending to do so. One message in particular strongly supports the conclusion the defendant was “producing”. On 18 August 2014 a message was sent which read:

“so sorry Jason. im moving house and it was impossibld to dry and weigh yesterday will do this arvo.”

  1. [68]
    There was unchallenged evidence the defendant had only recently moved into the house searched by the police eleven days after this message was sent. I am satisfied the defendant is the author of this message. Having considered all of the evidence I am satisfied beyond reasonable doubt that the defendant “produced” as that term is used in the Drugs Misuse Act 1986. In my view no other reasonable explanation is open on the evidence. Her production involved the use of the chemicals PB-22 and 5-Fluoro PB-22. For the reasons stated above dealing with the chemical structure of the relevant molecules I am satisfied the defendant produced dangerous drugs as alleged in counts two and three.

Was some or all of the money in the possession of the defendant knowingly obtained from trafficking?

  1. [69]
    The defendant’s case in relation to this charge was twofold. First she denied that she trafficked as alleged in count one. Secondly, the defendant submitted that even if she was trafficking the prosecution could not prove the money in her possession was the proceeds of that enterprise. As to the first matter I have set out my reasons why I am satisfied the defendant was trafficking. In relation to the second matter the defendant points to evidence she had previously run a business generating large amounts of cash. An email in June 2012 sent to the defendant’s account claimed a cash turnover from the business of about $60,000 per month. It is conceivable that the defendant had legitimate access to large amounts of cash. The mere fact the defendant had a large amount of cash is not itself proof the cash was the product of illegal activity. Distrust of banks or a desire to keep legitimate income from the knowledge of the Australian Taxation Office are two possible reasons a person might keep large amounts of cash.
  1. [70]
    Against that I must weigh the unlikelihood that someone who engaged in an apparentlyprofitable trafficking enterprise over a substantial period kept those profits entirely separate from her earlier profits. The money found in the defendant’s possession totalled $77,350. The bulk of that, $75,050 was in bundles of $5,000 made up of $50 notes inside paper bags. The balance of $2,300, again consisting largely of $50 notes, was in the defendant’s purse. Whether or not some of the money was the proceeds of trafficking is to be assessed having regard to all of the evidence. The prosecution case on count six is circumstantial. When approaching circumstantial evidence it is apposite to recall the statement of Gummow, Hayne and Crennan JJ in The Queen v Hillier:[4]

"… It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence."

  1. [71]
    On the evidence it is not reasonably open to think that all of the money was unconnected to the trafficking enterprise in which the defendant was engaged. The amount possessed, the manner in which it was kept, and the fact that I have found the defendant was trafficking as alleged, combine to persuade me beyond reasonable doubt that some of the money must have been derived from this enterprise.

Did the defendant possess things in connection with trafficking and producing a dangerous drug?

  1. [72]
    The essential findings that underpin my conclusion that the defendant is guilty of trafficking include that she sent particular messages on the phone and emails on the computer. It follows that she used these items in connection with the commission of the offence. Similarly, the findings that underpin my conclusion that the defendant is guilty of production of a dangerous drug as alleged in counts two and three are that the defendant had used, or intended to use, the vegetable matter and chemicals to produce “synthetic cannabis”. Because of these findings I am also satisfied that the defendant possessed the items alleged in connection with the crime of producing a dangerous drug.

Conclusion

  1. [73]
    I find the defendant guilty of count one (trafficking), count 2 (producing a dangerous drug, PB-22), count three (producing a dangerous drug, 5-Fluoro PB-22), count five (possessing money knowingly obtained from trafficking); count six (possessing a mobile telephone and computer the defendant had used in connection with trafficking) and count seven (possessing other items she had used in connection with producing a dangerous drug).
  1. [74]
    I will hear the parties as to sentence, including any submissions concerning matters of fact, such as the extent to which the money in her possession was the proceeds of her trafficking.

Footnotes

[1] Count two was alleged to relate to PB-22 and count three to 5-Fluro PB-22. Both chemicals were found on dried vegetable matter in the defendant’s house during the search (e.g., items 3H1 and 3H2 in exhibit 29).

[2] Senior Constable Anthony Chapman was an “Electronic Evidence Technician” who extracted emails from the defendant’s computer.

[3] Evidence Act 1977, s 39PC.

[4] (2007) 228 CLR 618, 637, [46].

Close

Editorial Notes

  • Published Case Name:

    R v Barrett

  • Shortened Case Name:

    R v Barrett

  • MNC:

    [2019] QDC 44

  • Court:

    QDC

  • Judge(s):

    Cash DCJ

  • Date:

    12 Apr 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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