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Trio Brothers Pty Ltd v Maskill QDC 62
DISTRICT COURT OF QUEENSLAND
Trio Brothers Pty Ltd v Maskill  QDC 62
Trio Brothers Trading Pty Ltd
27 April 2020
31 January 2020
Byrne QC DCJ
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) - where the appellant was charged with 5 offences of supplying an ice pipe or a component of an ice pipe pursuant to s 26ZPF(1)(b) of the Tobacco and Other Smoking Products Act 1998 (Qld) – whether on the whole of the evidence the Magistrate’s verdicts were unreasonable – where no expert scientific evidence was called by the prosecution – whether the evidence failed to establish to the criminal standard that devices supplied by the appellant were capable of administering dangerous drugs – whether the evidence failed to establish to the criminal standard that devices supplied by the appellant were an ice pipe or a component of an ice pipe, as defined
Acts Interpretation Act 1954
Drugs Misuse Act 1986
Justices Act 1886, ss 222, 223.
Tobacco and Other Smoking Products Act 1998, s 26ZPF
Allesch v Maunz (2000) 203 CLR 172
Bernard Elsey Ptd Ltd v Federal Comissioner of Taxation (1969) 121 CLR 119
Crampton v The Queen (2000) 206 CLR 161
Fox v Percy (2003) 214 CLR 118
Hamilton v Whitehead (1988) 166 CLR 121
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
McDonald v Queensland Police Service  2 Qd R 612
Project Blue Sky Inc and others v Australian Broadcasting Authority (1998) 194 CLR 355
R v Dalton  QCA 13
R v De Voss  QCA 518
R v George  2 Qd.R. 150
R v Hill, Bakir, Gray and Broad; ex parte Cth DPP (2011) QCA 306
R v Kaddour  3 Qd.R. 575
R v Marchesano (2000) A Crim R 237
R v Morrison (2002) 136 A Crim R 222
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679
Scaffidi v Chief Executive Officer, Department of Local Government and Communities (2017) 52 WAR 368
SKA v The Queen (2011) 243 CLR 400
Mr. S Keim SC for the Appellant
Mr. G Rice QC and Mr. G Elmore for the Respondent
McCullough Robertson for the Appellant
Gibbs Wright Lawyers for the Respondent
- On 15 July 2019 the appellant was convicted by an acting Magistrate in the Beenleigh Magistrates Court of five charges laid under section 26ZPF(1)(b) of the Tobacco and Other Smoking Products Act 1988 (“TOSPA”). The contested summary hearing occupied five days, with the decision delivered on the sixth day, and was spread out over about 17 months.
- The appellant has appealed each of the convictions.
- The Notice of Appeal promoted five grounds of appeal, namely:
- “The Learned Acting Magistrate erred in allowing the Complainant to adduce inadmissible evidence.
- The Learned Acting Magistrate took into account irrelevant considerations.
- The Learned Acting Magistrate failed to properly consider the evidence.
- The Learned Acting Magistrate erred in refusing the Appellant’s application that there was no case to answer in relation to all charges.
- On the whole of the evidence, the Learned Magistrate’s verdicts were unreasonable.”
- The appellant, on the hearing of the appeal, expressly abandoned grounds 1- 4 inclusive.
- The appellant’s argument on appeal has two parts:
- The evidence failed to establish to the criminal standard that the devices supplied by the appellant were actually capable of administering a dangerous drug, as opposed to having an apparent capability; and
- The evidence failed to establish to the criminal standard that the devices, at the time they were supplied by the appellant and in the form they were supplied were either an ice pipe or a component of an ice pipe as defined.
The Nature of the Appeal
- The appeal has been brought pursuant to section 222 of the Justices Act 1886, and so is by way of rehearing on the record. In an appeal of that nature it is necessary for me to consider the evidence and make up my own mind about the effect of it, particularly where any inferences are to be drawn from primary facts. The onus is held by the appellant to show that there is some error in the decision under appeal.
- The remaining ground of appeal, in referring to an unreasonable verdict, directs attention to the tests espoused by the High Court in considering appeals of that nature.
- In the event that error is demonstrated, I must consider the whole of the evidence to determine whether guilt has been proven beyond reasonable doubt on any or all of the five charges.
- The relevant legislative provisions of the TOSPA are:
“26ZPF Sale, supply and display of ice pipes
- (1)A person must not—
- (b)supply an ice pipe, or a component of an ice pipe, as part of a business activity; or
Maximum penalty—140 penalty units.
- (2)It is a defence for the person to prove that an ice pipe, or a component of an ice pipe, is designed primarily to be used for a purpose other than administering a dangerous drug.
Examples of devices designed primarily to be used for another purpose—
aluminium foil, spoons, test tubes
- (4)In this section—
component, of an ice pipe, means a device that—
- (a)is apparently intended to be part of an ice pipe; and
- (b)is not capable of being used for administering a dangerous drug in the way described in the definition ice pipe without an adjustment, modification or addition.
disclaimer means …
ice pipe means a device capable of being used for administering a dangerous drug by the drawing of smoke or fumes resulting from heating or burning the drug, in the device, in the drug’s crystal, powder, oil or base form.”
- For ease of reference, I will refer to the dangerous drug and the description of its form in the definition of “ice pipe” simply as “powder drug”. It includes amphetamine and methylamphetamine, which are the terms used regularly during the summary hearing.
- The appellant is an importer/exporter and wholesaler of, amongst other things, smoking and vaporising products and employs 50 or 60 people. The five charges alleged the provision by it of ice pipes to three different retail outlets in Queensland. Each supply occurred in an open and transparent manner. What are described as charges one to three inclusive alleged the offences to have occurred on or about 13 October 2016, the fourth charge alleged an offence on or about 5 October 2016 and the fifth charge alleged an offence on or about 19 May 2017.
- The charges each relevantly alleged the supply of an “ice pipe or component of an ice pipe”. No issue was taken with the apparent duplicity in the manner in which the charges were framed, either at first instance or on appeal. Proof to the requisite standard that the respective devices were either ice pipes or components of ice pipes is sufficient to prove the charge. It is not necessary to prove that they are both.
- Three different types of devices were the subject of the five charges, each of which bore a serial number or product code. The supply to the three different retail outlets was established by the tendering of invoices and similar paperwork which in turn referred to the respective product codes. In respect of charges 1-4 inclusive, investigators later attended the respective retail outlets and seized what I will call specimen pipes that bore the same product codes as those referred to in the invoices in respect of the first four charges. The following table summarises the effect of the evidence concerning the product coding, supply and seizure of the pipes.
Date and Place of Supply.
Product Code and Description.
Date Specimen Pipe Seized.
13/10/2016 at Park Ridge.
GP6015 Miscellaneous Pipe (18 cm) 1/216
13/10/2016 at Park Ridge.
GP6016 Miscellaneous Pipe (15 cm) 1/216
13/10/2016 at Park Ridge.
P919 Dry Pipe/ Vapouriser 11.5 cm 24/480
05/10/2016 at Logan Central.
GP6015 Miscellaneous Pipe (18 cm) 1/216
- In each instance the date charged was the date appearing on the respective invoice issued to the retailer.
- In respect of the fifth charge, no specimen pipe was seized. Investigators attended the retail outlet in question on 22 June 2017 and 26 July 2017 and saw some pipes on display. This was a different retail outlet to any of the other outlets involved in the other charges. The operator of that outlet provided the investigators with an invoice that is said to have shown the purchase of the pipes from the appellant on 19 May 2017. In particular one entry relevantly referred to the item and description, which was particularised as the subject of the fifth charge, as:
Dry Pipe/Vapouriser 11.5 cm 24/480
- A series of photographs of an advertisement in the shop for a P919 pipe and its packaging box were taken on 22 June 2017. The advertisement prominently purported that the item was a “2 in 1 DRY PIPE VAPOURIZER” (sic) and that it could be used as a “dry pipe” by the application of a lighter flame to the top of the larger end of the pipe which is stated to contain “herbs”, or as a “vaporizer” (sic) by application of a lighter flame to the bottom of the larger end of the pipe which is also stated to contain “herbs”. The packaging box prominently bears the product code P919 and bears a website address that does not obviously associate itself with the name of the appellant. The advertisement and the packaging box are clearly associated with each other.
- The photos in Exhibit 24 are not of good quality, but the pipe displayed in the second of them appears to be at least very similar to the specimen pipe which is Exhibit 4 and which in turn is relevant to the third charge. The invoice descriptions of the pipes are identical.
- Returning to the exhibits the subject of the first four charges, the pipes which are GP6015 and GP6016 are generally of similar appearance although, as the above stated descriptions suggest, GP6016 is a little shorter than GP6015. It is common ground that each are constructed of glass, and it is obviously a lightweight glass. Each have a bulbous end to which is attached a hollow stem. Part of the stem is coloured and part is clear. It is uncontentious that the coloured part of the stem can be filled with fluid which may have the effect of cooling the smoke as it is sucked through the stem and into the user’s mouth. GP6015 has three ribbed marks along the stem, and GP6016 has one such ribbed mark.
- In respect of both pipes, a cylindrical cone fits into the bulbous part of the pipe. It was common ground at the hearing that when purchased by the ultimate consumer, the cone is held in place by a piece of household style sticky tape. It was assumed for the purposes of the summary hearing that it was provided to the retail supplier by the appellant in that condition. The bulbous end on each is flattened in a manner that allows for the pipe to be placed on a flat surface with the opening that receives the cone uppermost.
- Attachment A to this judgment is a copy of one of the photos comprising Exhibit 27 and shows one GP6015 pipe and three GP6016 pipes each with the cone held in place by sticky tape.
- The pipe identified as P919 is a wholly clear pipe, which on visual inspection is shorter than the other specimen pipes. This too is constructed of a lightweight glass. There is no capacity to put a fluid around the exterior of the hollow stem and there are no other markings on the stem. Instead of having a bulbous end attached to the hollow stem, there is instead a cylindrical shaped end, flat and sealed off on the bottom with an opening into which the cylindrical cone can be inserted. Again, it was common ground at the hearing that when purchased by the ultimate consumer, the cone is held in place by a piece of household style sticky tape. It was also common ground at the summary hearing that it was supplied to the retailer by the appellant in that condition. Similarly, the effect of the flattened and sealed end of the cylinder is such that is allows for the pipe to be placed on a flat surface with the opening into which the cone can be placed to be uppermost.
- Attachment B to this judgment is a copy of another of the photos comprising Exhibit 27 and shows one P919 pipe with the cone removed and sticky tape still attached to the cone.
- I have had the benefit of seeing and handling the specimen pipes that were tendered at the hearing.
- It is common ground, both below and in this Court, that the cone is held in place in the bulb by the forces of gravity alone in each of the pipes once the sticky tape is removed.
- Although I will refer to the impugned evidence in more detail, it is convenient at this point to note that the uncontested evidence was that with the cone inserted in the respectively bulbous or cylindrical end of the pipes, they were capable of smoking cannabis or other leaf products. This is achieved by applying a flame to the top of the cone and inhaling the vapours and smoke through the stem. The effect of the impugned evidence, broadly speaking, is that each of the pipes were capable of being used to smoke or inhale the vapours of methylamphetamine, cocaine or other powder drugs by removing the cone, placing the power drugs into the bulbous or cylindrical end of the respective pipe and applying heat to that bulb or cylinder thereby causing the product to vaporise and then inhaling those vapours through the hollow stem.
- There was no scientific evidence adduced as to the qualities of the glass used in each of the specimen pipes, nor of the temperature which any of the specimen pipes could withstand before breaking and nor the temperature at which the powder drugs vaporised.
- Two responsible officers of the appellant company were jointly interviewed, at length, by investigators although none of the questioning touched upon the allegations that formed the basis of the fifth charge. There was also a lot of questioning concerning other products which did not form the basis of any charge. That recording was admitted at the hearing as Exhibit 14. Unusually, with the consent of both parties the transcript was specifically also tendered as part of Exhibit 14. It is clear that each officer was speaking as the mind of the corporate entity. The statements of the responsible officers are therefore admissible as though it was the appellant company itself that was answering.
- The parties agree that some caution must be applied to interpreting what is said in that interview as each of the interviewees did not have the benefit of English as a primary language. Accepting that as a wise approach, I will not interpret a series of answers as being attributable to a recognition that the pipes were used to smoke illicit drugs. Rather I will accept they were meant as apologies for trading in products that are used, they said, for smoking tobacco. Nonetheless I note that neither seem to have particular difficulty in understanding what is being asked and in expressing themselves. They may not always have answered the questions directly, but they did usually seem to understand what was being asked.
- In terms of what is in issue in this appeal, much of the interview was conducted on the basis of the investigators considering whether a particular item or items were capable of being used as an ice pipe, whereas the answers were mostly given on the basis of what the primary use of the item was. The answers apparently being influenced by legal advice previously provided:
“But the legal advice doesn’t tell us honestly … we did ask them… [T]hey said, well it’s – it’s the legislation that very vague, not clear, because it says “capable”, a lot of “capable”. A piece of any glass is capable. It’s capable. So they look at the – the primary use. So the primary use, to me, that’s a tobacco pipe.” (underlining added)
- It appears as though the preferences to “primary use” may in fact be a reference to the concept of determining what an item is “primarily designed” to do in the defence provision at section 26ZPF(2) of the TOSPA. The appellant does not suggest in this appeal that the onus was discharged by it in respect of that defence.
- The following passages outline the position of the appellant during the interview:
- Many items are capable of being used as a makeshift ice pipe including light globes, glass dishes, spoons and cups.
- Any item where the heat is applied to the top cannot be used to smoke ice, it requires the application of heat to the glass rather than burning the product in it.
- Many competitors are producing products that appear to be similar to the pipes produced for the appellant.
- The product codes are created by the appellant and placed on the items by the manufacturer.
- The pipes are supplied by the appellant to the retailer in the packaging that they arrive in from the manufacturer.
- The packaging of the P919 pipe bears a website that is associated with the appellant, although internet traffic on it is presently diverted to a particular retailer that purchases from the appellant.
- To melt the glass of a particular style of pipe (not the subject of any charge) you “need 2000, 3000 degrees”. The thickness of a P919 pipe would be twice the thickness of that pipe.
- The P919 pipes were not economical to use to smoke ice, and neither were glass dishes, nor GP6015 pipes.
- The appellant believes that the products it sells are designed for tobacco use.
- The removal of the cone from GP6015 did not significantly modify the product; “It’s just part of the feature.”.
- Although the subject of submissions at first instance, there is no complaint on appeal that the evidence was not capable of establishing that the appellant had supplied devices as part of a business activity at the time and place alleged. I have satisfied myself that the evidence was in fact capable of proving those matters.
- What is in dispute for the purposes of this appeal is whether the evidence was capable of establishing to the criminal standard that the devices that were supplied were each an ice pipe, or a component of an ice pipe, as those terms are defined in section 26ZPF(4) of the TOSPA. This requires particular consideration of the evidence of two witnesses, Sgt Halley and Mr Butler.
- The appellant unsuccessfully objected to the admission of the both of these witnesses’ evidence at the summary hearing, particularly as to the opinion that the specimen pipes were capable of being used to smoke methylamphetamine. The appellant has not directly appealed that ruling and concedes that aspects of their respective evidence was admissible. Nonetheless, an attack is made as to the extent of their expertise for the purposes of me undertaking an independent assessment of the evidence and directed towards me accepting that the ultimate opinion cannot be accepted. In light of the particular attack made on the evidence, it is I think useful to reproduce lengthy excerpts of their evidence, as well as summarising the effect of other parts.
- Sgt Halley had been a police officer for 17 years and, although he did not consider himself to be an expert on drug matters, he did consider that he had better than average knowledge about the topic, which he gained from searches, seizures and from regularly talking to drug users about their use and the nature of their use.
- On 13 April 2016 he attended a convenience store at Tivoli and seized some ice pipes. Two photos of the pipes was tendered, but they were tendered “without any reliance” on the markings on the stickers associated with each of the pipes. Therefore that is the basis on which I must consider the evidential value of them and I have no regard to any other markings in the photos. The item in the photos appears to be very similar to the specimen pipes GP6016, bearing in mind the limitations of comparing physical items with items in photos.
- On an unidentified date after 13 April 2016 but necessarily before 28 September 2016, Sgt Halley retrieved from a police property point an item that, as far as can be ascertained by inspection of the photo of it, appears to be the same as the specimen pipes GP6016. On scientific examination, residue in the bulb was found to contain methylamphetamine.
- The officer was cross examined in an effort to suggest that there were possible innocent explanation for how methylamphetamine could have been detected on a qualitative analysis without the pipe necessarily having been used as an ice pipe. Coincidentally, the officer held a Bachelor of Science degree and did not agree with the possibility of innocent transfer being suggested.
- In cross-examination he gave the following testimony concerning what is needed to be done to use the pipe once it is purchased by an end user:
“What would you say to a suggestion that this – these pipes could only be used as ice pipes if the cone piece was removed?---I would say that’s accurate.
That’s accurate. I see?---Yes.
All right. So from your observation of what you seized at Tivoli, and what you collected from Ipswich that was subsequently tested, you wouldn’t say that those products, as offered for sale, were apparently intended to be parts of ice pipes?---I’m sorry. Can you ask that question again? Would I say?
That they were apparently intended to be a part of an ice pipe?---No. I believe they were entirely ice pipes.
Well, in fact they’re more than an ice pipe. They’re an ice pipe with a cone that would have to be removed to use them as an ice pipe?---I would say that the cone piece were not attached. They were simply taped as part of a packaging, and they – they fell apart quite easily. They were not attached to – to any of the products.
I thought they were attached with sticky tape?---Yeah. The – the tape, it was extremely feeble, and in removing the tape to enable its use I noted they became – these came off with the tape.
Yes. And you had to make that modification, or you would have to make that modification, in order to use it as an ice pipe?---I wouldn’t call it a modification at all.
Well, whether you’d call it that or not you’d have to undertake that step in order for it to be used as an ice pipe?---Yes. You’d have to unwrap it.
Yes. Not only unwrap it but also remove the sticky tape, and with that the cone. That’s right, isn’t it?---Yes.”
- At the time of his testimony, Mr Butler had recently resigned as a police officer and was then a manager of investigations in a division of Queensland Health. Mr Butler had been a police officer for about 17 years and for the last roughly 8 years he worked in the State Drug Squad where he was a specialist investigator, predominantly dealing with precursor chemicals and production of drugs. In that role he was a member of the Illicit Laboratory Investigation Team which saw him involved in dismantling “a couple of hundred” laboratories, which also commonly involved gaining an appreciation of implements used to administer dangerous drugs, including ice pipes. He testified that a lot of the investigative operations in which he was involved dealt with methylamphetamine.
- Part of his role in the State Drug Squad involved the duties of the “drug diversion desk”, which meant that he was an advisor for the management of the Queensland Police Service on drug matters. Accordingly he kept up to date with issues from various law enforcement publications. He also had a role in a working group designed to ensure the currency of the Drugs Misuse Act 1986 (Qld), and has presented on drug enforcement issues both within Australia and overseas. 
- Mr Butler had seen and handled Exhibits 3 and 11 (i.e. the specimen pipes with product codes GP6015 and GP6016) on 18 April 2017, and was shown and handled them again in Court. He was asked about his opinion as to what they were capable of being used for. The following excerpts of his testimony are relevant:
“Now, can you tell us what those pipes are, or what those devices are?---In my opinion they’re smoking implements to be either used for – depend on if you remove the cone piece on it, different types of drugs.
What type of drugs?---So if you leave the cone piece in it could be used as a – a smoking implement. And that could include cannabis. And if you put the cannabis into the cone piece and then put – apply heat to it you could suck the - inhale the - the smoke from that when you heat it, through the narrow end.”
“Can you tell us in your experience and opinion what those devices you have in front of you, what they’re capable of being used for?---If it’s used like that, a leafy material such as cannabis would be placed in that, and that’s a dosage. And you’d put it in like that, apply heat to the top and inhale. And that would be a smoking implement for a dangerous drug such as cannabis. The simple removal of this cone piece allows this just to be a bulbous end, and in my opinion a dangerous drug such as methylamphetamine could be placed in the bottom of that, and by applying heat directly to – to that, heats up the – the drug. In this case it would be methylamphetamine or something similar. It would allow fumes to be generated, and you can inhale those fumes.
So in your opinion, what’s the primary use of that device or implement?---In that way it’s, in my opinion, if I saw that I’d think it was a smoking utensil for cannabis.
And with the cone piece out?---If I saw it like that I’d think it would be an ice pipe.
And what – to smoke what? What particular drug?---To smoke methylamphetamine or a similar powdered drug or – or – or stuff. But most commonly it’s referred to as an ice pipe to smoke methylamphetamine.
And does that apply to all of those pipes that you have there in front of you?---To my – they’re – they’re just different colouring. Different preferences. They don’t actually have an effect on the usage of it. This water thing has a little plug in it that holds the water in it. It could be just decorative, but because it’s got a inner tube and an outside tube that has water in it, technically it could be a little mini condenser that cools down the – the fumes when you breath it in, because sometimes it gets a bit hot, because you’re doing direct heat on something and then you’re breathing in that direct heat that causes the fumes. So it might be an ineffective condenser which cools things down. Same as what a condenser would be in a – a laboratory or a drug lab. But, I think it’s more decorative than for cooling purpose.”
- When shown Exhibit 4 (i.e. the specimen pipe with the product code P919) he stated:
“Could you tell his Honour what that pipe is capable of being used for?---It’s capable of the same thing as the previous item, your Honour. With the removal – with the – the addition of that can be smoked a – a – a leafy material such as cannabis, and the simple removal of that it is – can be used to smoke a dangerous drug such as methylamphetamine.
What’s that pipe capable of being used for, in your opinion?---It’s capable for using as a cannabis pipe.
And what about with the – does that have a cone attached to it?---Yeah, so it’s got a removable cone piece again. But the removal of the cone piece, that then can be used for a methylamphetamine ice pipe.
How does the user use it as an ice pipe; to smoke what drug?---Methylamphetamine is the most common. Puts a small user amount, so – with cannabis, a cone piece – a cone is a dosage. With methylamphetamine a dosage is zero point – traditional dosage is 0.1 of a gram. So you put a small amount in and by applying – in this case, you apply direct heat underneath. So you put the small amount of drug in there, apply direct heat under there until – vaporise it and move it around a little bit until it all heats up in little crystals or whatever the form of the drug comes in; most times small crystals with ice, and that heats up, creates fumes and you can breathe it in through the mouthpiece.
And in your experience have you seen drug users smoke tobacco from those pipes?---As I said, in my opinion, I don’t think it would be a very effective tobacco pipe. Normally tobacco pipes a little bit heavier and if they’re going to use them a lot – and same with cannabis and that. They’re a little bit sturdier on (sic) the ice. Because you want something sturdy because it gets stuck in there, so you actually want to hit it out, so glass is not the best thing to use. But I haven’t seen anyone smoke too much leaf material in these things without the addition of the cone piece.”
- He was asked about a feature of all of the pipes in front of him:
“And the bulbous – that bulbous end, if I could suggest – some of the pipes. What’s the design or the feature – the relevance behind that?---So the glass – traditionally ice pipes are made of glass because it’s easy to heat and you see the drug. A lot of drug users like to see what’s in there and know where to heat the – because it conducts the heat well and they can see what they’re doing and they know when it’s finished. That’s why it has the bulbous end because it allows things to be put in there, and that’s why they’re made out of glass. Where traditional cannabis pipes are more robust. They still can have their removable cone piece, but it might be a heavier grade of material such as brass or metal. But the heat when you apply – on a cannabis pipe is from the top because you’re burning the leaf material, so you’d have a lighter or some flame. Where, if it’s just a traditional BIC lighter, you’d light that because while you’re sucking in – you’re drawing – and that would actually draw the flame into there to heat the leaf material, and that’s why it has the cone piece because it takes out – you pat – what they call pat the cone. You put the cannabis in there, into – the user amount and then you can put it in there. And then when you’ve finished with it, give it a clean out and then it’s ready for the next dose. So that’s the top. With a ice pipe, it’s normally heated from underneath. Because you’re applying direct heat to trying to burn that drug to create fumes. And traditionally an ice pipe has a bulbous end because they like to move it around a little bit. But this design, in my opinion, has two purposes. It’s just a slight variation. Doesn’t really effect the usage of it but it also enable it to sit there without falling over. So ice pipes, with the bulbous end will roll like that because they don’t have a flat surface. They sometimes have a little addition here to keep it upright. Because the last thing that drug user wants is it to spill over and lose their drugs inside and have to do it again. So it could be an improvement, but it doesn’t affect its ability to – to use it. It’s just a design. It still has a bulbous end, allows you to put something inside, apply heat to the bottom and it to burn and the fumes to be sucked through this – this mouthpiece.”
- In cross-examination he conceded that his opinion was based entirely on an observational similarity with ice pipes:
“You’re not aware of any testing as to the ability of the glass user in making them to withstand the level of heat required to transform Methamphetamine to fumes for ingestion?---No.
All right. In other words, your evidence is entirely based on looking at these products and saying, yeah, well, they look like things that I’ve seen used for smoking ice?---So my experience I’ve seen items similar to that and slight variations in design used for methylamphetamine.
Yes, but that’s without the benefit of any testing as to the heat resistance, the capacity, anything of that nature?---That’s correct.
All right. It’s just an observational similarity with ice pipes?---The functionality and the design features are the same as a traditional sweet puff ice pipe, for that, for – if we’re using an ice pipe as an example, with the cone removed. And the only variation is the ice pipe has a more bulbous end. This has a more flat, square, bulbous end.
Well, actually you don’t know that; do you? You don’t know the thickness of the glass. You don’t know the specifications of the glass that’s used; those sort of details?---No, I don’t.
No. So in fact, it’s just – any opinion you offer to this court is based entirely on an observational similarity with ice pipes?---Yes.”
- The concession must be understood in light of “observation” including physical handling of the items.
- Mr Butler was questioned about the necessary size of the hole at the top of the pipe. He said that he had seen people smoke ice out of lightbulbs and wine glasses. In respect of the latter he said:
“So you’re not getting … as much fumes as you would out of this (pipe), but it’s still effective to get a high.”
- He also accepted that he had seen different shaped pipes used to smoke ice, but not the particular ones before him.
The Acting Magistrate’s Reasons
- The acting Magistrate gave extensive reasons. I will limit myself to those aspects which relate to the complaints presently made on appeal.
- His Honour found that Mr Butler was “an impressive expert witness with significant experience, training and education on the subject of illicit drugs.”. After quoting some excerpts of Mr Butler’s evidence, his Honour considered that “Mr Butler’s evidence was sufficient to establish to the requisite standard with regard to crystal methamphetamine and the implements inspected by him that they meet the description of an ice pipe as defined …”. He also referred to the evidence of Sgt Halley, who he described as an experienced operational officer, and his experience of drug users inhaling small amounts of “amphetamine” through pipes by applying a heat source to them.
- His Honour concluded that the implements are capable of being used for both smoking cannabis and “administering” crystalline methylamphetamine and noted that the appellant’s officers conceded that the pipes could be used for that purpose, although they considered they would not be so used because of the economic non-viability of doing so. 
- As to an argument that the pipes as supplied did not meet the statutory definition, his Honour noted that as supplied the pipes were not in “solid state form”. He did not accept that the sticky tape was part of the pipe, and whilst noting that the concept of “modification” involved issues of fact and degree, he did not accept that either the removal of the sticky tape nor the removal of the cone meant that the nature of the item, as supplied, was changed.
- At one point of his lengthy reasons, the acting Magistrate referred to an answer given by one of the appellant’s responsible officers as indicating a consciousness of guilt. To do so would have been an error for the reasons outlined at paragraph 28 herein. It is however not at all clear that he did act on an inference of a consciousness of guilt given that he concluded that the conduct of both responsible officers reflected poorly on their credit-worthiness.
The Parties’ Contentions on Appeal
- The appellant pursued two arguments under the remaining ground of appeal.
- First, that the evidence did not prove that the devices supplied were actually capable of administering a dangerous drug, in the form of the drug described in the definition, and therefore were not “ice pipes” as defined. The appellant emphasised that there was no scientific evidence before the Court as to the ability of the subject pipes to either resist or conduct heat. This was said to be important because although the pipes were marketed as tobacco pipes, and hence might be assumed to be resistant to some degree of heat, the different placement of the flames to smoke methylamphetamine meant that evidence was required.
- It was submitted that an opinion is only as good as the validity of the underlying foundation of facts and, it is said, Mr Butler’s opinion evidence acted on an unstated assumption that two pieces of glass that appeared to him to be similar will have the same capability. It is said that it is matter of common knowledge that glass does not necessarily have the same characteristics, even if it might look the same as another piece of glass. It was argued that there was no or insufficient foundation for the opinion that was expressed as to the capability of the specimen pipes to be used to smoke powder drugs. The finding of the acting Magistrate on this topic was also criticised on the basis that it stated conclusions, without any stated analysis of the reasoning leading to those conclusions.
- It was accepted that both Mr Butler and Sgt Halley had sufficient expertise to act on testimony as to what “ice pipes” look like, and how the specimen pipes compared visually with the items they had previously seen. So, it was said, the evidence of visual similarity was relevant, but it was insufficient to constitute proof of the issue without more. The appellant relied on the decision in R v Kaddour  3 Qd R 575 to demonstrate what it said was the limitations of the expert evidence adduced.
- Secondly, it is contended that even if it is capable of being used to smoke powder drugs, the device, in the form it was at the time it was delivered to the retailer, was neither an ice pipe nor a component of an ice pipe as defined. It was said that the evidence was all one way that as supplied to the retailer with the cone and sticky tape intact, it could not be used to smoke powder drugs.
- Further, it was not a component of an ice pipe because it was greater or larger than an ice pipe. It was submitted that, the removal of the sticky tape and the cone amounted to an adjustment or modification before it could be used to smoke powder drugs (if it is assumed that could in fact occur) and hence the item, as supplied by the appellant, did not fall within the definition of “component of an ice pipe”.
- The respondent emphasised Mr Butler’s expertise in particular and the wide range of items that could be used to smoke methylamphetamine, as conceded by the appellant’s officers. It was submitted that the appellant’s attack on the lack of scientific evidence took too jaundiced a view of everyday knowledge of the properties of glass. The respondent accepted that the definition required proof of an actual capacity, but it was argued that the various features of the evidence, including the expert evidence of Mr Butler, permitted the conclusion that actual capability existed. The respondent emphasised that the pipes were capable of being used to smoke ice, even if they did not do so economically or efficiently. The respondent also submitted that this was not an issue in the summary hearing below and that the efficacy of the convictions needed to be assessed in that light.
- As to the second of the appellant’s arguments, the respondent’s primary position was that consideration need not be given to whether the pipes, as supplied, were a component of an ice pipe, because they were in any event an ice pipe. It was argued that the pipes were capable of both smoking cannabis and crystal methylamphetamine, and the actual capability of using it for one purpose did not disqualify its capability for being used for another purpose.
- In the alternative it was argued that whether something is modified is a matter of fact and degree, and that the two corporate officers accepted in the interview that the removal of the cone would not significantly modify the product, and that “it’s just part of the feature”.
First Basis Argued
- The respondent submits that the issue as now framed by the appellant did not arise at the summary hearing, and that the reasonableness of the verdict must be assessed against the issues at that hearing.
- I accept that the issue as now framed did not directly arise below, but it was raised in the final addresses, albeit somewhat tangentially and without the emphasis that it now attracts.
- It cannot be doubted that the Court has jurisdiction to hear a ground of appeal not raised below but will ordinarily entertain points taken for the first time only if there are exceptional reasons to do so. This ground was in my opinion sufficiently raised below to permit it to be considered on appeal.
- This argument focuses attention on the definition of “ice pipe” and the concept of capability of being used to, in effect, inhale the fumes of heated powder drugs.
- The word “capable” is not defined either in the TOSPA or the Acts Interpretation Act 1954. It should therefore be afforded its ordinary meaning.
- The word “capable” is defined in the online version of the Oxford English Dictionary, relevantly, and as an adjective, as:
“1a. Able to take in, receive, contain, or hold; having room or capacity for.
- Able or fit to receive and be affected by; open to, susceptible:a. of anything material.
- Able to be affected by; of a nature, or in a condition, to allow or admit of; admitting; susceptible.”
- Similarly, the word is relevantly defined in the context of the phrase “capable of” in the Macquarie Concise Dictionary, 7th Ed. as:
“a. having the ability, strength, etc., to; qualified or fitted for. b. susceptible to; open to the influence or effect of. c. predisposed to; inclined to.”
- Two things can immediately be noted about the definitions. First, they do not restrict the concept of capability to one of unique capability. That is, an item can be capable of use for more than one purpose.
- Secondly, neither definition is in terms that requires immediate capability for the intended use. Each permits the precedent taking of a step or steps before the item can in act be used in the manner it is capable of being used.
- The parties are agreed that the word “capable” in the statutory definition of “ice pipe” means “actually capable” as opposed to some other broader concept such as, for example, “potentially capable”. Whilst I harbour some doubts that the word’s meaning should be restricted in that manner, given the broad ordinary definition of the term, I accept that is the way in which the proceedings were conducted below, and given the position of the parties to this appeal I will assume without deciding that it is the correct position.
- The appellant does not challenge the fact that both witnesses were entitled to give evidence about what ice pipes looked like, but contends that there was no or insufficient foundational evidence to allow, or otherwise accept, opinion evidence that the specimen pipes were actually capable of being used in that manner.
- In fact, the prosecution only adduced evidence of that nature from Mr Butler. It did not attempt to lead any such opinion evidence from Mr Halley. He was however cross-examined about what had to be done to make a pipe that he had retrieved from a property point (not one of the specimen pipes) immediately capable of being used to smoke methylamphetamine.
- The appellant does not directly appeal against the admission of the opinion evidence from either witness, but contends that even though it was admitted I must assess it in terms of the sufficiency and quality of the evidence to sustain the convictions and in doing so would accept that the evidence is only of sufficient quality to permit it to be used as evidence that the specimen pipes look like ice pipes, not that they are actually capable of smoking methylamphetamine.
- The approach to be taken, given the manner in which the appellant has framed its argument, needs consideration. Section 223 of the Justices Act 1886 requires me to conduct a re-hearing on the whole of the admissible evidence adduced at the hearing. The appellant has deliberately chosen not to appeal against the decision to admit the ultimate opinion evidence, and in fact abandoned a ground encompassing that complaint. Accordingly unless I independently conclude that the opinion evidence is inadmissible, which I have not been asked to do and so would only do in the clearest of cases, I must consider the opinion evidence that was adduced, and is re-produced above. I cannot ignore the evidence, although I can afford the ultimate opinion whatever weight, if any, I consider to be appropriate in light of the whole of the evidence, including the so called foundational evidence.But I cannot ignore the evidence. It would have been otherwise had the appellant successfully pursued a ground alleging erroneous admission of the ultimate opinion evidence, but the appellant has deliberately chosen not to do so.
Charges One to Four
- It is now convenient to consider the state of the evidence concerning charges one to four inclusive separately from that concerning charge five.
- It is well established that police officers (in this case, including a recently retired police officer) can give opinion evidence concerning the drug trade and matters connected with illegal drug use based on practical experience alone, provided of course that the subject matter does not fall within the ordinary field of knowledge of the tribunal of fact. Whether the specimen pipes were capable of being used to smoke methylamphetamine was a matter, in my view, that fell outside the ordinary range of knowledge of the tribunal of fact.
- Mr Butler’s opinion was obtained from an inspection of the specimen pipes. The hearing was conducted on the basis that the specimen pipes were either part of the respective charged consignments, or at least were identical to the pipes in the respective consignments.
- The first basis, was in my view, reasonable given the relative closeness in time between the delivery of the charged items and the respective seizures of the specimen pipes.
- On the second basis, in my opinion it was safe to assume that the items would be the same as the specimen pipes given the likelihood that the items would continue to be manufactured to the same specifications over the relatively short space of time involved. I note that there were submissions in the summary hearing that the acting Magistrate could not assume these were mass produced items, but the issue was only faintly pursued in the no case submission and has not been maintained in the appeal. Common sense suggests that they are of a nature that they would be mass produced. There was no indication in the lengthy interview Exhibit 14, the transcript of which occupies 203 pages, that there was any change in the specification of the differently labelled pipes during the relevant time (or at any time). The interview gives the distinct impression that they were in fact mass produced on the basis of orders lodged by the appellant with the manufacturer.
- At the hearing the appellant challenged the proposition that the specimen pipes could be assumed to be the same as those supplied. In my view the acting Magistrate was correct to note that the use of the “unique product code” linked the specimen pipes examined to those supplied by way of the appellant’s invoices which referred to the product codes. I expand on this by noting that the product code was supplied by the appellant to the producer, thereby linking the specimen pipes to the appellant and alleviating any real risk that it would have been adopted by competitors. It was a coded number only, and not something integral to its marketing from which a competitor would have benefited.
- In my view there was no reasonable possibility that Mr Butler was comparing a pipe different from those that were supplied by the appellant to the retailers, and it was appropriate to consider Mr Butler’s opinion even though it was given in respect of the specimen pipes.
- The critical parts of Mr Butler’s evidence have been reproduced above. He had, as found by the acting Magistrate “significant experience, training and education on the subject of illicit drugs”, and in particular in powder drugs. The additional finding that he was “an impressive witness” was, I deduce, based not only on the content of his testimony but also the manner of delivery and overall presentation. There is no reason to suspect that is an erroneous finding. The basis for reaching the opinion was clearly expressed in the course of his testimony and hence was available for the scrutiny of the tribunal of fact. Notwithstanding the apparent concession, it was not based purely on visual observation, but also on his physically handling the specimen pipes. His evidence was based on the physical attributes and functionality of the specimen pipes, compared with the physical attributes and functionality of pipes which, in his experience, had been used to smoke methylamphetamine.
- The appellant relies on the decision in Kaddour to contend that Mr Butler’s evidence was not sufficient on its own to justify a conviction on any of the counts. I do not accept that his evidence stood alone, but for present purposes it can be noted that there are material differences between this case and that of Kaddour. In Kaddour the prosecution did not adduce evidence to say that a seized drug appeared to be a dangerous drug as defined. That is no doubt because the drug was never seized. The prosecution there was tendering the evidence as part of a circumstantial case, but it was of a distinctly different quality to the evidence adduced in this hearing given the police officer in Kaddour was not comparing the actual drugs with drugs he had previously observed. His mere description of what drugs look like was obviously well short of a sufficient basis on which to solely base a conviction. Kaddour does not stand for authority either that scientific evidence is required before proof beyond reasonable doubt can be attained in a drugs case, nor that expert evidence of a police officer can only ever rise to the point of being a relevant circumstance in an otherwise larger circumstantial case.
- It is of course true that there is no scientific evidence as to the properties of the glass in the specimen pipes, the ability or otherwise to conduct heat and the heat required to vaporise powder drugs, and there is nothing to suggest that Mr Butler held any relevant scientific qualification. But the issue is not what other evidence might have been called, but rather whether the evidence in fact called meant that it was open to convict on the four charges presently under consideration.
- The appellant exemplifies its argument by reference to the use of ordinary glassware as opposed to bakeware in an oven. It is said that an item of bakeware can appear to be the same as an item of glassware, but a person cannot be assured that glassware will survive being placed in the oven for a period of time. The argument proceeds that one needs to ensure that it will by reference to the maker’s specifications or testing of its properties. It is the said that in the same way, Mr Butler cannot truly be understood to have been able to say that a specimen pipe was capable of conducting the heat simply by looking at and handling the pipe.
- The argument has it weaknesses in comparing the heat of an oven over what is usually a notable period of time as opposed to the heat from a butane lighter over a relatively short space of time, but it does neatly encompass what the appellant argues are the limitations of Mr Butler’s ultimate opinion as to the actual capabilities of the devices in question.
- I find Mr Butler’s evidence persuasive. The fact that Mr Butler had no scientific qualifications to speak to the properties of the glass used in the pipes and other scientific features is a relevant consideration when considering whether to accept the ultimate opinion evidence of actual capability. I am also conscious that the expert evidence should not be disregarded in the absence of a contrary opinion or body of evidence. The respondent submits, and I agree, that the appellant takes too jaundiced a view of the ability of a tribunal of fact to understand the properties of glass, but notwithstanding the strength of the impugned evidence I consider that Mr Butler’s evidence alone cannot negative the reasonable possibility that the specimen pipes in fact were not capable of conducting the heat necessary to vaporise the powder drugs due to the properties of the glass used. I consider the possibility to be slim, but nonetheless reasonable.
- Accordingly I consider that the acting Magistrate erred in finding that the issue of capability was proven to the requisite standard on the basis of Mr Butler’s evidence alone.
- However, I consider that it was open as part of a wider circumstantial case to find that charges one to four inclusive had been proven beyond reasonable doubt.
- First, even if Mr Butler’s opinion evidence is only capable of rising to the level that the specimen pipes each had the physical appearance and functionality of ice pipes with no discernible features that would disqualify them from that conclusion, that is a powerful consideration given the extent of his experience in the field.
- Second, there is support for the assertion that the pipes would be able to withstand a degree of heat sufficient to vaporise the powder drugs.
- The specimen pipes were tendered and appear to be made of relatively light weight but not fragile glass. There is no scientific evidence as to the precise temperature at which methylamphetamine vaporises, but there is evidence that the temperature can be reached by applying the heat from a butane (cigarette) lighter or some other flame to the bulbous end of an ice pipe. That the sufficient temperature has been achieved with glass pipes on other occasions suggests that, whilst no doubt hot to human touch, it is not an extravagantly high temperature at which the drug vaporises. The statements of the responsible officers in the interview summarised at paragraph 31g herein permits the conclusion that the glass will not fail before that temperature has been reached, at least in respect of the P919 pipe.
- No doubt the ability of the pipe to conduct the particular heat applied depends on the composition of the actual glass. Differences may mean that the same degree of heat needs to be applied longer as between different pipes, or that a higher degree of heat is required when used with one ice pipe as opposed to another. The capability of any or all of the specimen pipes to smoke powder drugs is not limited to vaporising the drug with a butane (cigarette) lighter, or through the application of heat for a particular time only. Should a particular pipe in fact require a greater degree of heat to vaporise the drug, it remains capable of being used to smoke the drug provided that degree of heat can be applied. Similarly the requirement to hold the same flame there longer than might otherwise be the case does not deprive the pipe of the capability of being used to smoke the drug.
- The point is illustrated by the wide array of implements that can be used to smoke methylamphetamine, such as light bulbs, wine glasses, glass dishes, spoons and cups. Ordinary experience indicates that each are of differing composition and quality but, on the evidence, each can be used to vaporise the drug, albeit no doubt after the application of varying degrees of heat over varying periods of time. There will invariably greater and less efficiency as between the different implements, but I agree with the respondent that the degree of efficiency achieved is not relevant to the issue of capability. It may be relevant to the issue of what the instrument was primarily designed for, but that is not the present issue here.
- I have accepted that the answers of the responsible officers in the interview need to be approached with caution given they were not answering in their first language, nonetheless part of one answer demonstrates that a wide range of glassware is capable of being used as an ice pipe, even if the answer should not be taken literally:
“… A piece of any glass is capable. …”
- There is other circumstantial evidence that tends to support the proposition that each of the pipes are actually capable of being used to smoke powder drugs.
- First, the pipe retrieved from the property point by Sgt Halley had a residue of methylamphetamine in the bulb consistent with it having been used to smoke the drug. That pipe appears from the photograph of it to be the same as the specimen pipes bearing the product code GP6016. It is true that it cannot be said that the two pipes are necessarily identical in their composition, but this is a feature that both supports the proposition that pipes of this nature are capable of smoking the drug and that many types of implements are so capable.
- Second, the specimen pipe bearing product code GP6015 appears to the naked eye and on physical handling of it to differ from those bearing the code GP6016 only in respect of the length of the stem. Mr Butler’s evidence suggests there is nothing about the different length of stem to affect the issue of capability.
- Thirdly, if it is accepted that the composition of the P919 pipe the subject of the third and fifth charges is the same, the advertising for the P919 pipe which was the subject of charge five promotes the proposition that it can be used as a “vaporiser” with a flame heat applied to the bottom of the bulbous end of the pipe.
- In light of the whole of the evidence, in my view there is no reasonable possibility that the pipes the subject of charges one to four inclusive were not capable of being used to smoke powder drugs, even though there was a lack of scientific evidence as to the composition of the glass used in the pipes. Put another way, it was open on the basis of that body of circumstantial evidence to conclude that the pipes supplied were ice pipes, as defined. That is so regardless of whether the consideration in paragraph 102 forms part of the consideration or not.
- When all of that is added to Mr Butler’s opinion evidence, albeit understood in the limited manner referred to earlier, and the other evidence proving other elements of the charges, it was open to convict the appellant on each of charges one to four inclusive.
- The evidence concerning the fifth charge principally differs from that concerning the first four charges in that a specimen pipe was at no stage seized from the relevant retail premises, and hence there was no specimen pipe seized close to the time of the charged date that was eventually examined by Mr Butler.
- Broadly speaking, this charge was based on the contents of the invoice dated 19 May 2017 from the appellant showing the provision to the retailer of, amongst other things, a quantity of P919 pipes and the observations of an investigator at the retailer on 22 June 2017 and 26 July 2017. Photographs were also taken of an advertisement for a P919 pipe and the packaging box of the same style of pipe on the earlier date. It has already been remarked that the quality of these photos is not good.
- In my opinion, it is open to conclude that the P919 pipes the subject of charge five which were supplied on or about 19 May 2017 are of the same composition as those the subject of charge three.
- Again the relative closeness in time between the date of the charged supply of the pipes and the date the investigator first attended the shop provides, in my view, sufficient basis to accept that the pipes he inspected were either part of the supplied stick, or were of the same composition as the supplied pipes.
- I have explained at paragraph 82 above why it can be accepted that the pipes are all mass produced. There is roughly seven months between the other four supplies of pipes and that the subject of charge five. There is no reason to suspect that the specifications of the pipes changed in that time, and so it can be assumed that the P919 pipes the subject of this fifth charge were of the same composition as the P919 pipe inspected by Mr Butler. Although the responsible officers were not expressly questioned about these pipes, their answers generally ranged from the time of the other supplies to the date of the interview. There was no suggestion of a change of specification of any of the pipes.
- The evidence concerning the wording on the advertisement for and the packaging of the P919 pipe is directly relevant to this charge as circumstantial evidence. The fact that the box bears a website name which the responsible officers referred to as being under their control, albeit presently diverted to a retailer is further support for the proposition that the subject pipes were the appellant’s product.
- For those reasons Mr Butler’s opinion evidence and the other circumstantial evidence was relevant to an assessment of the proof of the fifth charge. I conclude that it was open to convict the appellant on this charge also.
The Second Basis Argued
- It will be recalled that each charge alleged the supply of an ice pipe or component of an ice pipe. Those terms are defined at section 26ZPF(4) of the TOSPA. Consideration of this argument relies on an appreciation of the physical characteristics of each pipe the subject of the respective charges. For the reasons outlined above, I consider this argument on the basis that the P919 pipe the subject of the fifth charge is the same as the specimen pipe examined by Mr Butler.
- The appellant argues that even if the relevant pipes are capable of being used to smoke powder drugs in the manner described by Sgt Halley and Mr Butler, they are not ice pipes, as defined, because at the time they were supplied by the appellant to the retailer they were not capable of being used to smoke powder drugs, because of the presence of the cone in the bulbous end of the pipe and the sticky tape holding that cone in place.
- The appellant further argues that it is not a component of an ice pipe, as defined, because what was supplied to the retailer was not part of (and hence not a component of) an ice pipe, and in any event required an adjustment or modification to make it an ice pipe. The first part of the argument relies on the proposition that, with the cone inserted, a component cannot be greater than the total of the device. The second argument contends that the removal of any or all of the packaging, sticky tape and cone amounts to an adjustment or modification, which by definition, means it is not a component of an ice pipe.
- The appellant’s contention in this Court is exemplified by the following oral submission:
“ … these products could only be used as ice pipes once someone took the step of doing or taking the first step. Now, I'm not going to tell your Honour that the step to be taken was anything other than something of the greatest simplicity; that is to say, to take the sticky-tape off and remove the cone piece so as to make the device capable, but whether it's easy to do or whether it's hard to do is not the issue.”
- The respondent contends that what was supplied was, in reality, an ice pipe and therefore one need not consider whether it was a component of an ice pipe.
- I accept the respondent’s argument.
- In my view, what was supplied by the appellant to the retailers was a device that was capable of smoking both leaf product and powder drugs. It is telling that the device bearing the product code P919 was promoted in the accompanying advertisement in the shop as being a “2 in 1 DRY PIPE VAPOURIZER” (sic). In my view the other subject pipes should be considered to also have dual functionality and capability. It is difficult to understand why they would be designed with a separate cone held only in place by the forces of gravity if it were otherwise. All pipes were sold with common sticky tape holding the cone in place in the bulbous end of the respective pipes.
- The position taken by the appellant in this Court is not entirely consistent with that taken below, where Queens Counsel then appearing for the appellant conceded that the removal of the sticky tape was not a relevant consideration, but the change in position does not matter greatly. Both below and in this Court it is contended that the presence of the cone in the bulbous end of the respective pipes means that what was supplied to the retailer was not capable of smoking methylamphetamine because, in effect, the evidence establishes that with the cone inserted it cannot be used to smoke a powdered drug; only a leaf product. This contention cannot be accepted.
- The definitions of the word “capable” are reproduced earlier in this judgment. The word does not require an exclusive capability, nor an immediate capability. Two common examples will illustrate the point. A fully functional motor vehicle is capable, as that word is commonly understood, of being driven even though it requires the starting of the ignition. Also a rock is capable of breaking a glass window even though it requires projection to achieve that. These common examples illustrate the point that capability can involve the need for pre-requisite action or actions.
- Further, on any view of the evidence in this matter, something more than the mere device is required to use it smoke either leaf product or powdered drug, namely the application of heat. That is, the device is not at the time of sale immediately capable of smoking any substance, but it is in my view capable of being used to smoke powder drugs. If it were otherwise the legislative definition would be incapable of application to any ice pipe. This would be contrary to the principle that a provision should be construed in a manner that gives effect to the language and objects of the legislation, and so that all the provisions have work to do.
- It appears that the sticky tape is nothing more than a convenient way of packaging the device so that the ultimate customer can be assured of being sold the cone as well as the larger device, and possibly also for display-for-sale purposes. I agree with the view of the acting Magistrate that the sticky tape is not part of the pipe. The removal of the sticky tape is, in my view in the same category as the removal of packaging, which was not argued in this Court as being an impediment to a finding of capability and was expressly conceded below as not being an impediment.
- I also consider that the removal of the cone piece, whether deliberately or inadvertently, does not mean that the device was not capable of being used to smoke methylamphetamine when supplied with the cone inserted. The removal of it is a minor pre-requisite step. What necessary pre-requisite steps will be sufficient to deny the device of that status will involve issues of fact and degree. For example, if, in the pipes’ current configuration, the cone had to be sawed off or otherwise physically broken away from the rest of the pipe, those steps would likely be of sufficient bearing to mean that the device was not capable of smoking powdered drugs when supplied. There will be many other possibilities depending on the design of the device when supplied, but in this case the mere removal of a separate, loose piece that is designed to provide the device with dual functionality is not an action in my view that means that the device did not have the status of being capable of being used to smoke powder drugs. The fact that the cone is just a feature of the pipe was confirmed by the responsible officers. The simplicity of those actions were revealed in the cross-examination of Sgt Halley reproduced at paragraph 39 herein.
- It can be accepted, as the respondent does, that a component of a device cannot ordinarily be greater than the whole of the device and also that a component of a device cannot ordinarily be the same as the whole of a device. Given my findings on this argument, the devices are not components of ice pipes. This does not provide an avenue to success for the appellant as it has been proven that what was supplied in each charge were ice pipes and, given the way that each charge was worded, that was sufficient for proof of each charge.
Has the defence been made out?
- Section 26ZPF(2) of the TOSPA provides for a defence, in respect of which the onus of proof falls on the defendant on the balance of probabilities.
- It has not been suggested in this appeal that the onus had been satisfied and that therefore the conviction was wrongly entered. In light of the position taken by the appellant I need not consider this issue in detail, but I do record that I have given consideration to the issue and I am satisfied that the defence has not been made out.
- Given my conclusions, the issue of a costs would seem to be straight forward. However at the hearing I indicated that, depending on my findings, I would invite further submissions or make an order allowing for the filing of submissions if the parties could not agree on costs. The latter course will be adopted.
- I make the following orders:
- Appeal dismissed.
- The parties are to exchange and file written submissions as to costs, limited to three pages, by 4.00pm on 14 May 2020 if not earlier agreed, with a view to the issue of costs being determined on the papers.
Transcript of hearing 1-3.44 – 1-4.2; Appellant’s Outline of Argument at paragraph 6.
Transcript of hearing Appellant’s Outline of Argument at paragraph 6.
Fox v Percy (2003) 214 CLR 118 at -; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at , ; McDonald v Queensland Police Service  2 Qd R 612 at .
Allesch v Maunz (2000) 203 CLR 172 at ; McDonald v Queensland Police Service, ibid.
These principles, in the context of a jury trial, were helpfully summarised in the recent decision of R v Dalton  QCA 13, -.
Exhibit 14 page 11, line 12.
Transcript 1 August 2018 page 2-23 to 2-24; Exhibit 3 and 27. The evidence of Ms Maskill at 2-54 was that a photo marked exhibit 8(i) was also of these items. A comparison of the objects in Exhibit 3 and Exhibit 8(i) demonstrates that the photo is obviously not of the objects in Exhibit 3. In fact it appears to be a duplication of Exhibit 13 – see footnote 10 below. No submissions have been made on this discrepancy either below or on appeal.
Transcript 1 August 2018 page 2-25; Exhibit 4.
Transcript 1 August 2018 page 2-63; Exhibits 11, 13 and 28.
Transcript 2 August 2018 page 3-102 to 3-104; Exhibit 24. Although the transcript records one of the photos as being exhibit 25, all three photos were physically marked as exhibit 24 and a different document was marked as exhibit 25 on the next sitting day – see Transcript 5 December 2018 page 4-31.
Also spelt as “vaporizer” elsewhere on the advertisement.
This was the reason for it given by the responsible officers of the appellant. The utility of this cooling process was doubted by one witness. He thought it had more effect as a decoration than as a cooling mechanism.
The sole director of the appellant and its general manager.
Transcript 2 August 2018 page 3-99 line 15.
Transcript 2 August 2018 page 3-13 line 30.
Bernard Elsey Pty Ltd v Federal Commissioner of Taxation (1969) 121 CLR 119 at 121.
Hamilton v Whitehead (1988) 166 CLR 121 at 127.
Exhibit 14 transcript page 37 line 41 – page 38 line 4. This passage was in relation to questioning concerning the pipe coded P919.
Exhibit 14 transcript page 35 line 43; page 54 lines 6-14; page 121 line 16; page 122 line 3; page 135 line 35; page 153 line 14
Exhibit 14 transcript page 122 line 5.
Exhibit 14 transcript page 153 lines 13 to 18.
Exhibit 14 transcript page 197 line 26.
Exhibit 14 transcript page 49 line 15.
Exhibit 14 transcript page 60 line 5.
Exhibit 14 transcript page 21 lines 31 to 34.
Exhibit 14 transcript page 101 line 18 to page 102 line 11; page 105 line 40 to page 106 line 10.
Exhibit 14 transcript page 99 line 39 to page 100 line 31.
Exhibit 14 transcript page 114 line 25 to page 117 line 2.
Exhibit 14 transcript page 120 line 9 to page 121 line 3.
Exhibit 14 transcript page 121 lines 17 to 38. And generally see page 75 lines 29-33.
Exhibit 14 transcript page 122 lines 5 to 7.
Exhibit 14 transcript page 123 lines 24 to 35.
Exhibit 14 transcript page 135 line 31.
Exhibit 14 transcript page 123 line 37 to page 124 line3.
Transcript 5 December 2018 page 4-2 to page 4-24 and Exhibits 25 and 26 (submissions); page 4-25 to page 4-27 (ruling).
Transcript 5 December 2018 page 4-47 and page 4-49.
Transcript 5 December 2018 page 4-51 lines 35-45.
The date of the analysis certificate referred to in footnote 43.
 I have ignored this opinion, which amounts to an opinion as to a legal conclusion, when determining the issues in the appeal.
Transcript 5 December 2018 page 4-58 line 32 to page 4-59 line 16.
Transcript 5 December 2018 page 4-62 line 13 to page 4-65 line 17.
Transcript 5 December 2018 page 4-65 lines 27 to 35.
Transcript 5 December 2018 page 4-64 lines 36 to 44.
Transcript 5 December 2018 page 4-66 line 45 to page 4-67 line 4.
Transcript 5 December 2018 page 4 – 68 lines 5 to 44.
It appears to me that this is an erroneous transcription and that the word should be “than”.
Transcript 5 December 2018 page 4 – 69 line 16 to page 4 - 70 line 10.
Transcript 5 December 2018 page 4 – 72 line 31 to page 4-73 line 10.
Transcript 5 December 2018 page 4 – 74 lines 13 to 40.
Transcript 5 December 2018 page 4 – 75 line 28.
Transcript 5 December 2018 page 4 – 76 lines 16 to 20.
Reasons 15 July 2019 page 16 line 10.
Reasons 15 July 2019 page 17 lines 19 to 22.
Reasons 15 July 2019 page 17 lines 38 to 42.
Reasons 15 July 2019 page 17 line 33 and page 24 lines 21 to 31.
Reasons 15 July 2019 page 17 line 44 to page 19 line 22.
Reasons 15 July 2019 page 11 lines 1 to 9.
Reasons 15 July 2019 page 14 line 36.
See paragraph 34j.
Transcript of oral submissions 31 January 2020 page 1-32 lines 18-28.
Transcript 15 July 2019 page 1 – 15 lines 6 – 31.
Crampton v The Queen (2000) 206 CLR 161, , -, ; R v Hill, Bakir, Gray and Broad; ex parte Cth DPP  QCA 306, -.
https://www-oed-com.ezproxy.sclqld.org.au/viewdictionaryentry/Entry/27354; accessed 27 March 2020.
See paragraph 37 herein.
See paragraph 39 herein.
SKA v The Queen, (2011) 243 CLR 400 at .
R v George  2 Qd.R. 150, .
Transcript of oral submissions 31 January 2020 page 1-27 line 27 to 1-28 line 19.
R v Kaddour  3 Qd.R. 575, ; R v Morrison (2002) 136 A Crim R 222, -; R v Marchesano (2000) A Crim R 237.
Transcript 31 July 2018 page 1 -12 line 33; page 1-25 line 16 to page 1-26 line 47;
Exhibit 32 (Appellant’s written submissions on the no case submission) paragraph 114.
Reasons 15 July 2019 page 17 lines 24 to 31.
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, , , .
R v Kaddour  3 Qd.R. 575
Transcript of oral submissions 31 January 2020, page 1-20.
R v De Voss  QCA 518.
Transcript of oral submissions 31 January 2020, pages 1-29 line 29 to 1-30 line 25; Respondent’s outline of submissions paragraphs 14 – 16.
Transcript 5 December 2018 page 4-49 lines 8 and 20; page 4-72 line 41.
See paragraph 29 herein.
See paragraph 37 herein.
See paragraph 109 below.
See paragraph 16 herein.
Transcript of oral submissions 31 January 2020, page 1-25 lines 19-24.
Including tobacco and cannabis.
Also spelt as “vaporizer” elsewhere on the advertisement. See exhibit 24.
Transcript 12 June 2019 page 1-20 lines 9-21.
Project Blue Sky Inc and others v Australian Broadcasting Authority (1998) 194 CLR 355, -; Scaffidi v Chief Executive Officer, Department of Local Government and Communities (2017) 52 WAR 368, .
See for example Exhibit 2.
Reasons 15 July 2019 page 18 lines 29 to 30.
Transcript 12 June 2019 page 1-20 lines 9-12.
See paragraph 31j herein.
Transcript of oral submissions 31 January 2020, page 1-41 line 22.
- Published Case Name:
Trio Brothers Pty Ltd v Michelle Maskill
- Shortened Case Name:
Trio Brothers Pty Ltd v Maskill
 QDC 62
27 Apr 2020
|Event||Citation or File||Date||Notes|
|Primary Judgment||Magistrates Court (No Citation)||15 Jul 2019||Appellant convicted of five charges laid under section 26ZPF(1)(b) of the Tobacco and Other Smoking Products Act 1988 (“TOSPA”).|
|Primary Judgment|| QDC 62||27 Apr 2020||Appeal against conviction pursuant to s 222 of the Justices Act dismissed: Byrne QC DCJ.|
|Notice of Appeal Filed||File Number: CA 115/20||27 May 2020||-|