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The Queen v Mark Anthony Clive Bryant[2017] QDCPR 25

The Queen v Mark Anthony Clive Bryant[2017] QDCPR 25

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Bryant [2017] QDCPR 25

PARTIES:

THE QUEEN 

(respondent)

v

MARK ANTHONY CLIVE BRYANT 

(applicant) 

FILE NO/S:

432/2017

DIVISION:

Criminal 

PROCEEDING:

s 590AA application 

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2017

JUDGE:

Farr SC DCJ 

ORDER:

  1. The application is allowed.
  2. The evidence of Ms Blakey and Mr Collett that the     detected substances have a chemical structure that is substantially similar to the specified substances is excluded from the jury’s consideration. 

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – ADMISSIBILITY – EXPERT EVIDENCE – where applicant is charged with dangerous drug offences – where the charges relate to substances that are not dangerous drugs within the Drugs Misuse Regulation 1987 Schedule 2 – where the respondent is seeking to call chemists as expert witnesses to give opinion evidence that each of the detected substances are “substantially similar” in chemical structure to a Schedule drug – where the applicant submitted that such opinion evidence is inadmissible – where the applicant submitted that such evidence offends the ‘ultimate issue rule’. 

Drugs Misuse Act 1986 s 4

Drugs Misuse Regulation 1987 

Evidence Act 1995 (Cth) s 80

Ancher, Mortlock, Murray and Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278

Clark v Ryan (1960) 103 CLR 486

Murphy v The Queen (1989) 167 CLR 94

Osland v The Queen (1998) 197 CLR 316

R v AL (2016) 310 FLR 320

R v Champion & Anor [2017] QDCR 21

R v LM [2004] QCA 192

R v Lupien [1970] SCR 263

R v Tokin & Montgomery (1975) Qd R 1

R W Miller & Co Pty Ltd v Krupp (Aust) Pty Ltd (1991) 34 NSWLR 129

Schafferius v The Queen (1977) Qd R 213 

COUNSEL:

S Holt QC for the applicant 

J Robson for the respondent 

SOLICITORS:

Nyst Lawyers for the applicant 

Director of Public Prosecutions (Qld) for the respondent

The application

  1. [1]
    The applicant seeks an order, that the opinion evidence of Senior Chemists Karen Blakey and Simon Collett that the chemical structures of material seized in this case are “substantially similar” to the chemical structures of certain scheduled dangerous drugs, is inadmissible and should be excluded from the jury’s consideration.   
  2. [2]
    The application is opposed. 

Charges

  1. [3]
    The applicant is charged on indictment with one count of trafficking in a dangerous drug, one count of receiving property obtained from trafficking and seven counts of possessing a dangerous drug. 

The prosecution case

  1. [4]
    The applicant owned and operated the “Totally Adult” retail business which sold alleged synthetic cannabis products from its seven retail outlets in southeast Queensland. 
  2. [5]
    It is alleged that the applicant trafficked and possessed three substances which were dangerous drugs: NM-2201; 5-Fluoro PB-22 and SDB-005 (“detected substances”). 
  3. [6]
    None of these detected substances are specified as dangerous drugs within the Drugs Misuse Regulation 1987 Schedules 1 or 2.  
  4. [7]
    At trial, the prosecution proposes to establish that each detected substance is a dangerous drug by calling expert evidence that each has a chemical structure that is substantially similar to the chemical structure of a specified Drugs Misuse Regulation Schedule 2 dangerous drug (“specified substance”). 

Legislation

  1. [8]
    The definition of “dangerous drug” is found in s 4 of the Drugs Misuse Act 1986.  This, relevantly provides:

“dangerous drug means—

  1. (a)
    a thing specified in the Drugs Misuse Regulation 1987, schedule 1 or 2 or;

…

  1. (c)
    a thing that—
  1. (i)
    has a chemical structure that is substantially similar to the chemical structure of a thing referred to in paragraph (a)…”

The issues on the application

  1. [9]
    The applicant raises two issues:
    1. (a)
      whether the expression “substantially similar” is a matter for expert opinion; and
    2. (b)
      whether the expression of such an opinion infringes the “ultimate issue rule.”

Is the expression “substantially similar” a matter for expert opinion?

  1. [10]
    The first question is whether this issue is one in which expert evidence can be given.  
  2. [11]
    It is common ground that the question of whether two chemical structures are substantially similar to each other is a question of fact, to be determined by a jury at trial.[1]
  3. [12]
    It is also common ground that there is no absolute scientific standard or formula in relation to the meaning of “substantially similar” in this context.  This is because the expression “substantially similar” is necessarily non-quantitative.  
  4. [13]
    I also note that there is no legislative definition of “substantially similar.”  In evidence on this application, Ms Blakey said that the term “substantially similar” was not a scientific term and that it was “really just a comparative way of trying to assign a degree of similarity.”  She also conceded that for scientists to assess whether two compounds are substantially similar is “not necessarily a commonplace thing.”[2]  She said that when she conducts such a comparison, the definition of the word “substantial” that she applies is “for the most part, or to a considerable extent.”[3] 
  5. [14]
    In R v AL,[4] the Victorian Court of Appeal noted that “there is no agreed standard in chemistry for determining whether or not a substance is substantially similar in chemical structure to another”.  
  6. [15]
    The applicant submits that the term “substantially similar” carries its ordinary meaning.  The respondent agrees.  The difference between the parties is that the applicant contends that an expert witness can describe the similarities and differences between the chemical structures of different compounds, but once such evidence has been given, the opinion as to whether such similarities are substantial is not a matter of expertise.  It is submitted that in the absence of any scientific standard or guide against which such an assessment can be made, a jury is just as well placed to determine that question.  The respondent submits that such a conclusion is “based on expertise after conducting visual comparisons of molecular models, combined with their expert knowledge of chemistry”.  
  7. [16]
    Expert evidence is admissible as an exception to the usual prohibition on opinion evidence, but only when it is needed to provide specialised information likely to fall outside the experience and knowledge of a judge or jury.  In Osland v The Queen,[5] Gaudron J said:  

“Expert evidence is admissible with respect to a relevant matter about which ordinary persons are ‘[not] able to form a sound judgment… without the assistance of [those] possessing special knowledge or experience…which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience’.”[6]

  1. [17]
    Importantly, I note that the issue in this application has been the subject of argument and determination in another matter.  Durward SC DCJ considered this very issue in R v Champion & Anor [2017] QDCR 21 and stated at [62]:  

“There is no doubt that chemists can assess the chemical properties of two substances and if there is a difference, point out what that difference is.  But he or she cannot take the further step, as the respondent urges that I should find, of expressing an opinion that one is substantially similar to the other.  That remains a matter for the jury.  I do not think that issue is a matter of law for a Judge to determine.  It follows that Schulze cannot express the opinion that the detected substances in this case are ‘substantially similar’ to the specified substances.”  

  1. [18]
    Whilst that decision is not binding, it nevertheless carries a significant persuasive value.  I note also that in that decision, his Honour referred to evidence before McGill SC DCJ and comments his Honour made in a hearing in Townsville on 8 April 2016 regarding this very issue.[7]  As Durward SC DCJ noted, McGill SC DCJ said at the conclusion of that hearing (although it was not a ruling on the issue) that his initial reaction to the applicant’s contention was that:  

“There could be expert evidence as to what the structure of the particular compound is and what the structure of some related dangerous drug was – but the question of whether they are substantially similar is a matter for the jury or a judge, depending on whether it’s a question of fact or a question of law. [It] Wouldn’t be a matter on which expert evidence was admissible.”[8]  

  1. [19]
    The respondent seeks to distinguish this matter from R v Champion & Anor in two ways.  The first is said to be due to the fact that his Honour’s ruling “turned upon the particular evidence that emerged from the experts that were involved in that case”.  Upon my reading of that decision though, it is quite clear that the expert’s evidence was indistinguishable from the evidence of Ms Blakey in this matter.  That is hardly surprising, and in fact, it would have been troubling if different experts gave evidence of different approaches, tests or definitions in the “scientific assessment” of the same issue.  
  2. [20]
    Secondly, the respondent submits that when reaching his decision on this issue, his Honour was not referred to the case of Ancher, Mortlock, Murray and Woolley Pty Ltd v Hooker Homes Pty Ltd,[9]  a matter that involved allegations of copyright infringement by architects.  The case turned on the extent of copying involved, and whether it was “substantial” and the respondent relies heavily on the following statement by Street J when ruling that the evidence was admissible:  

“The decision upon the issue of similarity is an original decision for the court itself.  It is to be reached upon an assessment of such similarities and dissimilarities as appear to the court between the plans or buildings under consideration.  The fact that one particular expert of the highest authority and of unimpeachable credit is permitted to swear to an opinion on similarity or dissimilarity does not relieve the court of the responsibility of forming its own opinion on this issue.  In this sense the expert evidence in a suit such as the present fills a somewhat unusual role.  It is almost as if each side calls an expert to argue out with counsel in examination-in-chief and crossexamination the similarity or dissimilarity which that particular expert sees between the plans and houses.  By attending to the progress of this argumentative process between counsel and expert the court is enabled to perceive and more readily to appreciate the points of similarity and dissimilarity.  In this way the tendering of expert evidence is of value in exposing the facets of the ultimate question to which the expert opinion evidence is directed.”  

  1. [21]
    Of course, an important distinction between that case and this is that this matter involves a trial by jury and allegations of criminal conduct and can result in lengthy terms of imprisonment if the applicant is convicted. Accordingly, caution must be exercised when determining this issue, because, as Dawson J said in Murphy v The Queen:[10] 

“The admission of such evidence carries with it the implication that the jurors are not equipped to decide the relevant issue without the aid of expert opinion and thus, if it is wrongly admitted, it is likely to divert them from their proper task which is to decide the matter for themselves using their own common sense.”  

  1. [22]
    Notwithstanding the above statement by Street J, to opine that one compound has a chemical structure that is “substantially similar” to another is not an opinion based on special knowledge and experience.  Once evidence of the chemical structure of a detected substance and of a specified substance is before the court with their similarities and dissimilarities identified and explained by an appropriately qualified expert, then the question of whether they are substantially similar is one which a jury could answer and is not dependent upon expert qualification, learning or experience.  
  2. [23]
    For this reason, such opinion evidence is not admissible.  I am further supported in that conclusion when I note the alternative definition of “dangerous drug” in s 4 of the Drugs Misuse Act.  That is:  

“dangerous drug means—

  1. (a)
    a thing specified in the Drugs Misuse Regulation 1987, schedule 1 or 2 or

…

  1. (c)
    a thing that—

…

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

…”

  1. [24]
    In a case where that provision is relied upon by the prosecution, one can envisage evidence from a suitably qualified expert detailing the pharmacological effects of the detected substance and of the specified substance.  Upon receipt of such evidence, it clearly becomes a question of fact for the jury to determine if “substantial similarity” has been proved beyond reasonable doubt.  Whilst it would be a matter for an expert to speak of the nature of the pharmacological effects of each compound, whether those effects are substantially similar “would not be an opinion based wholly or substantially on the expert’s knowledge”.  In other words, once the evidence of the pharmacological effects has been given, the opinion as to whether the similarities are substantial is not a matter for expertise.  In the absence of any scientific standard or guide, against which such an assessment can be made, a jury is just as well placed to determine that question.  
  2. [25]
    The same logic applies to the definition in question in this matter, notwithstanding that the comparison of chemical structures may be a more difficult task than the comparison of pharmacological effects.  

Ultimate issue rule

  1. [26]
    Notwithstanding my conclusion that the proposed evidence is inadmissible, I will nevertheless briefly consider the applicant’s second submission that such evidence also offends the ultimate issue rule.  
  2. [27]
    That rule is that a witness may not give evidence on an issue that is the ultimate issue for determination in a case.[11]  
  3. [28]
    The respondent has submitted that the ultimate issue in this matter is whether each detected substance has been proved to be a dangerous drug.  But, given the relevant legislative definition of a dangerous drug, it is beyond question that the ultimate issue is whether substantial similarity has been proved beyond reasonable doubt.  
  4. [29]
    It is accepted by the applicant that the ultimate issue rule is not absolute,[12] and that individual circumstances are relevant to its application.  In RW Miller & Co Pty Ltd v Krupp (Aust) Pty Ltd,[13] it was said:  

“…It is almost impossible for a rule in those terms to be applied, there are many cases in which an expert has given such an opinion, and a rule in those terms has been doubted in the High Court [in Murphy v The Queen (1989) 167 CLR 94 at 110, 126-127]… a lesser restriction has been recognised, that the expert may not give an opinion on an ultimate issue where that involves the application of a legal standard – for example, that the defendant was negligent, that a risk was reasonably foreseeable, that a testator possessed testamentary capacity, that a representation was likely to deceive or that a publication was obscene.”  

  1. [30]
    I note also that the rather archaic nature of the rule has been recognised in Commonwealth legislation by its abolition pursuant to s 80 of the Evidence Act 1995 (Cth).  
  2. [31]
    Nevertheless, it remains the position in this state that the ultimate issue rule can still have application, although as noted in R v LM that there is now a greater willingness than in former times to allow such expert evidence to be given, particularly so when such evidence is led in a criminal trial in defence.[14]   
  3. [32]
    The fact that an opinion traverses an issue that is properly for the jury to determine may render the evidence inadmissible as a matter of law,[15] or otherwise lead to an exercise of discretion to exclude such evidence.[16]  
  4. [33]
    As I have said, in this matter the opinion that each of the detected substances has a chemical structure that is “substantially similar” to substances listed in Schedule 2 of the Drugs Misuse Regulation is the ultimate issue.  I agree with the applicant’s submission that it is an opinion as to the proof of an element of the offence.  
  5. [34]
    Given that the proposed opinion evidence does not apply a scientific standard, such evidence does no more than place someone’s opinion as to how the matter should be resolved before the jury.  The danger of such evidence is that a jury may place undue weight on such an opinion because it has been offered by an expert witness notwithstanding the fact that the expert would be in no better position than the members of the jury in determining the issue.  
  6. [35]
    For this reason, this is a matter where the ultimate issue rule should not be relaxed.  

Orders 

  1. [36]
    I make the following orders:  
    1. The application is allowed.
    2. The evidence of Ms Blakey and Mr Collett that the detected substances have a chemical structure that is substantially similar to the specified substances is excluded from the jury’s consideration. 

Footnotes

[1] R v Champion & Anor [2017] QDC 21 at [62].  

[2] Transcript pp 1-17, ll 5-23. 

[3] Transcript pp 1-18, l 24.  

[4] (2016) 310 FLR 320 at [35].  

[5] (1998) 197 CLR 316.  

[6] At 336 [53].  

[7] R v Champion & Anor [2017] QDCR 21 at [16]-[29].   

[8] Ibid at [34].  

[9] [1971] 2 NSWLR 278.  

[10] [1989] 167 CLR 94, 131.  

[11] Clark v Ryan (1960) 103 CLR 486 at 490-492; R v Tokin & Montgomery (1975) Qd R 1 at 39.  

[12] Murphy v The Queen (1989) 167 CLR 94 at 110-111, where doubt was expressed as to the universal application of the rule; Schafferius v The Queen (1977) Qd R 213 regarding the physical and psychological condition of a patient.  

[13] (1991) 34 NSWLR 129 at 130-131.  

[14] [2004] QCA 192 at [69]-[71].  

[15] R v Lupien [1970] SCR 263.  

[16] R v LM [2004] QCA 192 at [69]-[71].  

Close

Editorial Notes

  • Published Case Name:

    The Queen v Mark Anthony Clive Bryant

  • Shortened Case Name:

    The Queen v Mark Anthony Clive Bryant

  • MNC:

    [2017] QDCPR 25

  • Court:

    QDCPR

  • Judge(s):

    Farr SC DCJ

  • Date:

    11 Aug 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Clark v Ryan (1960) 103 C.L.R 486
2 citations
Jump To
Cite 1 - (1960) 103 C.L.R 486
Cite 2 - (1960) 103 C.L.R 486
Murphy v R (1989) 167 CLR 94
4 citations
Jump To
Cite 1 - (1989) 167 CLR 94
Cite 2 - (1989) 167 CLR 94
Cite 3 - (1989) 167 CLR 94
Cite 4 - (1989) 167 CLR 94
Murry & Woolley Pty Ltd v Hooker Homes Pty Ltd (1971) 2 NSWLR 278
2 citations
Jump To
Cite 1 - (1971) 2 NSWLR 278
Cite 2 - (1971) 2 NSWLR 278
R v AL (2016) 310 FLR 320
2 citations
Jump To
Cite 1 - (2016) 310 FLR 320
Cite 2 - (2016) 310 FLR 320
R v Champion & Anor [2017] QDCR 21
4 citations
Jump To
Cite 1 - [2017] QDCR 21
Cite 2 - [2017] QDCR 21
Cite 3 - [2017] QDCR 21
Cite 4 - [2017] QDCR 21
R v Champion & Anor [2017] QDC 21
1 citation
Jump To
Cite 1 - [2017] QDC 21
R v LM [2004] QCA 192
3 citations
Jump To
Cite 1 - [2004] QCA 192
Cite 2 - [2004] QCA 192
Cite 3 - [2004] QCA 192
R v Lupien (1970) SCR 263
2 citations
Jump To
Cite 1 - (1970) SCR 263
Cite 2 - (1970) SCR 263
R v Osland (1998) 197 CLR 316
3 citations
Jump To
Cite 1 - (1998) 197 CLR 316
Cite 2 - (1998) 197 CLR 316
Cite 3 - (1998) 197 CLR 316
R v Schafferius [1977] Qd R 213
2 citations
Jump To
Cite 1 - [1977] Qd R 213
Cite 2 - [1977] Qd R 213
R v Tonkin and Montgomery [1975] Qd R 1
2 citations
Jump To
Cite 1 - [1975] Qd R 1
Cite 2 - [1975] Qd R 1
R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129
2 citations
Jump To
Cite 1 - (1991) 34 NSWLR 129
Cite 2 - (1991) 34 NSWLR 129

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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