Hi - I am the R.Simpson you appear to be discussing - I have a wealth of material, as I would, on the subject. The supreme court appeal on the matter is also in the online AustLII case law library. I was charge under the 'derivative' part of the act, as 2-5dimethoxy-4bromophenylethylamine (aka 2-CB or Nexus) was not on Schedule One of the Drugs Misuse and Trafficing Act at the time - I was charged then with having manufactured a drug 'structually derived from a methoxy phenylethylamine and with hallucinogenic properties'. This was a 'catch all' in the act. Subsequent to the charges being sucessfully prosecuted, the substance was scheduled.
The bummer of it was I had checked it's legality out with my solicitor prior to manufacture. He never found it on Schedule One, the Poisons List or the Customs list and told me it would be legal to produce. At trial the Judge said it wasn't checked well enough and he 'hoped my lawyer had good insurance'. In a nutshell (the trial lasted 9 months) the prosecution had to prove the substance was (a) structurally derived from methoxy phenylethylamine and ( had halucinogenic properties. The Judge stated that the term 'structurally derived' was to be interpreted as 'any substance that could be derived from the structure of methoxy phenylethylamine on the blackboard.' The fact that maybe twenty reactions and / or whether the reactions could actually be performed was irrelevant - if a theoretical route could be established it was enough. We probed the Judge with ' Well according to this loose definition, petrol would fall into this category - are we all driving around with a prohibited drug in our petrol tanks?' The judge smiled and said "perhaps, but you are not being charged for that'Both legal teams argued at length - we lost.
The halucinogen clause - well we were basically setup by an informed DPP who had been down this path before - we hadn't. The definition of halucinogenic became paramount. The substance effects the eyes, similar to double vision when being drunk. The DPP called one witness on the subject, an english professor, who when asked what halucination meant said ' anything that effects the eyes'. When asked where he got his definition from he said 'everyday english usage'. On cross examination by John Korn, my Barrister, he was asked 'well when you rub your eyes when you wake up in the morning, is this an halucination?' - he replied 'yes'. Another question - ' when one is drunk and the eyes go funny - halucination?' - answer 'yes'. Well about now we were smiling thinking what on earth is this idiot on about.
Alexander Shulgin testified saying it was not halucinogenic. We had doctors, psychiatrists, psychologists, all manner of expert testify that the accepted definition of halucination is as in DSM4 - that it is not enough to see visual disturbances where one might say 'I must be out of it, the clock appears to be melting down the wall' - a true halucination requires a 'conviction to belief in the reality of the situation' ie 'oh my god, the clock is melting on the wall' where one truly believes in the experience. This was not the case with 2-CB.
Summing up, the Judge ordered the jury to dismiss all defense witnesses on the subject of defining 'halucination'. He said this was because each defense witness spoke from an area of expertese. The law, said the Judge, was required to be interpreted in terms of 'everyday english usage'. (Where had i heard that before!) The only witness who's definition was acceptable was from our dear DPP english professor.
The annoying thing was all we needed to do was present with our own english professor, with a DSM4 definition, who stated he got his definition from 'everyday english usage' and thanks to a precedent set by Lindy Chamberlain's case, there would have been a conflict of expert evidence and the Judge would have been required to order the jury to take the defenses definition. Ah well.
