Cavanagh v The Queen; Rekhviashvili v The Queen [2016] VSCA 305

Cavanagh v The Queen; Rekhviashvili v The Queen [2016] VSCA 305 - VSCA 2016 case summary — Zoe

[85]

40 Ian Neely held a doctoral degree in chemistry. He was employed as a forensic officer with the State Forensic Science Centre, and had over 14 years' experience in the analysis of clandestine laboratories. He went to Warleigh Grove, and was also provided with an exhibit log, and had seen photographs, relating to items seized at the premises. Dr Neely examined the various items seized. He gave evidence that methylamphetamine can be manufactured from either or both pseudoephedrine and ephedrine in combination with iodine and hypophosphorous acid. In his opinion, the items seized - including the scientific glassware, equipment, solvents and chemicals - would be sufficient for the manufacture of methylamphetamine. In relation to the receptacles containing methylamphetamine in liquid form, Dr Neely could not explain why those quantities of methylamphetamine were mixed in water (there being no suggestion that water formed part of the manufacturing process). Dr Neely was, however, unable to say when any of the seized methylamphetamine had been produced, and he was unable to say what process of manufacture was used to make any of the methylamphetamine. He could not say whether any of the various quantities of methylamphetamine were manufactured at the same time or by the same process. Further, he was incapable of saying when any of the washings located on the items in the storage unit were manufactured or how they got there. In relation to the containers in which iodine, hypophosphorous acid and acetic anhydride were located, Dr Neely agreed that one could not tell by visual observation what the contents of these containers were, since they all appeared to be clear liquids. The contents could thus only be determined by analysis. Dr Neely accepted that, given the absence of any evidence of an active clandestine laboratory at either Warleigh Grove or Kennards, he was unable to say where any manufacture occurred. He further accepted that methylamphetamine can be stored at various points in the manufacturing process for an extremely long period of time.

[161]

Lucy Newman is so important in this case, perhaps that's why the learned prosecutor so thoroughly over cooked and then retracted his dismissal of her. Lucy Newman is young. She's perhaps not terribly clever. She may have appeared - and you might think it'd be difficult to be put into that witness box, knowing that your evidence is central, she might have been very nervous and she had that mannerism of giggling a bit when she got confused.

...

There is no confusion in Lucy Newman's mind about dates when you give her something to work with - not in the abstract. She was golden in that regard, and you might think it was a bit of mismatch. I knew about it, I'm calling this sort of ditsy [sic.] girl in her early 20s to give evidence. She'll be cross-examined by a prosecutor with decades of experience, for whom this is his war and his show. Bit of a mismatch. It's like sending Mother Theresa out to face Mike Tyson.

She got into the witness box and she gave a compelling story, I submit, one Mike Tyson didn't lay a single glove on. She was cross-examined at length.

...

Never - never once - was she challenged about her honesty or truthfulness in giving her evidence. That's what he had to back away from at a million miles an hour yesterday. It was never suggested she was imaging [sic.] things, making up, lying and what-have-you. She gave unchallenged evidence that Greg Rodin had never discussed manufacturing of drugs in her presence, and he didn't do so, didn't have such discussions in the presence of Will Cavanagh when he was there. Never challenged about that. ...

It was suggested in the learned prosecutor's closing address to you that she wasn't independent because she'd been in a relationship with Greg Rodin and remained his friend ...

Ask yourself this question. On the Sunday afternoon at your house, are you going to find totally independent strangers there? If something happens in your house this Sunday afternoon, is it going to be packed with totally independent strangers? Of course not.

The reality of life is that in your house you have your friends and your families and sometimes acquaintances.

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Judgment (212 paragraphs)

Legislation Cited (1)