LAWS304 - Examine the Hypothetical, Identify the Relevant Issues - Law Assignment Help

Assignment Task

Introduction
1. I have been asked for advice as to whether or not Ray Smith (‘Smith’) is likely to face charges under provisions of the Drug Misuse and Trafficking Act 1985 (NSW)(‘DMTA’). For the reasons that follow my advice is that Smith may be liable for being in possession of drug manufacturing paraphernalia intended for use in manufacturing (DMTA, s24A), or liable for being in possession of prohibited precursor (DMTA, s24B), but not liable for manufacturing prohibited drugs (DMTA, s24). On the current evidence there are risks associated with successful prosecution.

2. As detailed in the brief, Smith was arrested after police located a jar of hypophosphoric acid and various glass containers in the boot of his car, suggesting Smith was involved in the manufacture of amphetamines. The matter has since been referred to the DPP for advice on the likely charge or charges arising. Threshold Issues

Jurisdiction
3. The brief does not detail exactly where Smith was arrested. On the assumption he was arrested in NSW, the DMTA will apply because there is a geographic nexus between offences contained in the DMTA, and the events described above.1 As he was driving, we may also infer that he is an adult, and therefore prima facie criminally responsible as a matter of law.
 

Lawful Search?
4. As a general proposition, for evidence to be admitted in a court it must be lawfully obtained. It is therefore important to consider the legality of the search, given that

Smith was pulled over for a random breath test.

Offences pursuant to the DMTA
Manufacturing?
5. The facts suggest a link between Smith and the manufacturing of prohibited drugs. It is highly unlikely these facts would sustain a charge of this kind. In R v BD11 the accused was found to be in possession of 27,000 sudafed tablets and glassware strongly indicating his involvement in manufacturing. Here the NSWCCA upheld his appeal against conviction for manufacturing and entered a verdict of acquittal.12 The court did so on the basis that mere possession and transportation of implements, without more, was not a “step in the process of manufacture” as required by the Act.13 As there is no evidence in the present brief as to more than possession and transportation, this avenue is not advised. However, as noted below that conclusion is tentative given Smith’s links with another matter involving Mark Bloggs.14

Possession of precursors and apparatus for manufacturing

6. Section 24A of the DMTA prohibits the possession of precursors and apparatus intended or known by the accused to be used for the purpose of manufacturing a prohibited drug.15 In the alternative, it is an offence under s24B merely to be in possession of precursors used in the manufacture of a prohibited drug, whether known by the accused or not.16

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