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What should be done about the failure of the Psychoactive Substances Act 2013 to control unapproved psychoactive products?

Unapproved psychoactive products should be controlled drugs. As such, their classification should follow recommendations of the Expert Advisory Committee on Drugs, and pending any advice to the contrary they should be Class C controlled drugs.

An arguably premature revision of the mental elements for liability for drug offences was undertaken in Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161 (not freely available online, strange to say). [Background: perhaps the delay in its availability was due to outstanding proceedings against an absconding defendant keeping suppression orders in force until his death, reported on 2 March 2019 - although there had been extensive media coverage in 2018 of the entire case up to sentencing, with everyone named. No, that's not the reason. There is no reason.] The new requirement of knowledge that the substance was a controlled drug, or of recklessness as to its being a controlled drug, is too narrow in that it pinpoints “controlled drug”. This means knowledge of, or recklessness as to, the substance being scheduled in the Misuse of Drugs Act 1975, including knowing it by a name that is a common term for a scheduled substance (see Cameron at [40], [93]).

The problem here is that under this requirement it would be a defence for a person to have thought that the substance was an unapproved psychoactive product (there are currently no approved products, and none are in the process of being tested for approval).

Under the pre-Cameron law, the mental elements for guilt included knowledge that the substance was a drug that had an effect on the mind. This requirement, settled for some 30 years after some interesting cases were digested, did not give rise to intrinsic difficulties of proof. If anyone asked what I thought, I would say, go back to that. Cameron is suited to an anticipated future in which there are approved psychoactive products and it is necessary to recognise the innocence of people who honestly think they have such a product when in fact they have a controlled drug. On this view, we have here a rare example of reality not having caught up with the law.

As far as controlled drug analogues are concerned, we should wonder whether the legislated criterion of "substantially similar" structure to a controlled drug is really on point. The purpose of the Act is to prevent the harm that is caused by the use of controlled drugs, and substantial structural similarity serves (whether accurately or not, we don't necessarily know) as a proxy for that. In any event, for liability, mens rea should address the effects of the substance when used. If requiring knowledge of, or recklessness as to, structural similarity seems somewhat absurd (it has never been necessary for a defendant to know that a substance was an isomer, a salt, an ester or an ether of a scheduled substance) courts should be more comfortable assessing whether a defendant knew of, or was reckless as to, the effect of the substance on the mind of a user. People who manufacture and distribute such substances should be well aware of their effects when used, and of the similarity of those effects to those caused by use of controlled drugs. So, for offences in relation to analogues, there is no reason to treat the mental elements for liability as being any different from those applicable to other controlled drug offences. Our current legislation follows international precedents, at least as to definition of the actus reus, but that should not stop the search for improvements in the case law definition of the elements of mens rea.

It's a matter for you ... but you may well think ...

The High Court of Australia has accepted that, as a general rule, judges presiding at jury trials should not comment on issues of fact: McKell v The Queen [2019] HCA 5 at [31], [46]. Comment should only be used to correct an error or restore balance: [53]-[55]. The power to comment is to be used to ensure trial fairness, and is not to be used to add force to one side so as to sway the jury: [3].

It is important, obviously, that perceptions of trial fairness be kept consistent internationally. One reason for this is so as not to impede extradition processes.

The Supreme Court of New Zealand may well be alert for an opportunity to revisit the approach to judicial comment set out in R v Keremete CA247/03, 23 October 2003, applied recently in B v R [2018] NZCA 80.

Keremete tolerates a contradiction that is dispensed with by the general rule in McKell. This is that the judge may express in strong terms a view on the facts, while at the same time telling the jury that it is the sole arbiter of the facts. Keremete accepts a position in which strong comment can be consistent with fair presentation of the issues while at the same time leaving the issues of fact to the jury. Muddled, to say the least.

If jury trial judges disobey McKell, appellate courts will have to grapple with summings-up like that considered in B, where the court had to accept that there was prima facie lack of balance, but decided that in context the combined significance of the errors was considerably reduced, to the point where the court was able to conclude there was no unfairness.

This cleansing-by-context process is unsatisfactory, not the least because it is mysterious. B was not a case where comment was aimed at correcting an error or restoring an imbalance. It can only have been speculation for the court to conclude that there was no real risk that jurors had been influenced by the improper judicial comments. Trial outcome and trial process are separate matters, and it would be wrong to think that, because a verdict seems to have been correct, it was arrived at fairly. An analysis analogous (and here I stretch a bit for an analogy) to the requirements for the defence of withdrawal may be appropriate in determining whether a judge has restored the balance after making an inappropriate comment: compare Ahsin v R [2014] NZSC 153 at [140], applied in De Soto v R [2018] NZCA 366. Outside of strict criteria of that sort, breach of the McKell rule should, of itself, amount to a miscarriage of justice.

In what one hopes was a flash of brilliant wit, Gageler J declined to comment on judicial comments.