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[2002] NSWCCA 218
appellant. The Court upheld the first ground of each appeal, proposed that each appeal be upheld, each conviction be quashed and a verdict of acquittal be entered. It was unnecessary to deal with the...
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The convictions depended on proving that the powder in seven bags was methcathinone. The appeal court considered the Crown analyst's testing and found substantial unanswered problems with how the results had been obtained and interpreted. In the Court's view, the jury should still have had a reasonable doubt about the identification. It therefore upheld the appeals on that ground, quashed the convictions and proposed that acquittals be entered.
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2,050 words · generated 01/10/2026
The New South Wales Court of Criminal Appeal heard appeals by Brendan Piggott, John Griffiths and Michael Simeon against convictions arising from activity at a factory unit in Castle Hill. Each had been convicted of knowingly taking part in the manufacture of not less than a commercial quantity of methcathinone. Piggott and Simeon had also been convicted of supplying not less than a commercial quantity of that drug [2]. They sought leave to appeal against their sentences as well.
The factual setting was a series of purchases and movements associated with chemicals, laboratory glassware and the Castle Hill premises. Griffiths, operating as “Solvent Solutions”, had bought chemicals and glassware. Simeon leased the factory unit. The three men visited wholesale chemical suppliers in late June and early July 1999, travelling between them and the unit in Piggott's vehicle [3]–[4]. Police searched the premises on 29 and 30 June, and recorded activity there on 1 and 2 July. Piggott and Simeon were arrested on 2 July. Police found seven smaller bags of powder in the passenger side of Piggott's vehicle [5]–[7].
The Crown alleged that the bags contained 979.1 grams of methcathinone. It also relied on evidence that the appellants had taken part in a process at the factory unit, including washing powder with acetone to remove impurities. The appeal judgment distinguishes that activity from the manufacture of the 979.1 grams: apart from an estimated quantity of about 20 grams, the evidence did not show that the larger quantity had been manufactured at the unit in any sense other than purification [10]–[12].
The central appeal issue was not whether the appellants had been present at the unit or involved in the processes shown on video. It was whether the powder in the bags had been proved to be methcathinone. The Court described the chemical analyst Mr Ballard's evidence as critical to that part of the Crown case because he alone had analysed the contents of the bags [18].
Barr J assessed the evidence as a whole, rather than treating any one defect in isolation. The judgment records that several pieces of evidence, including recipes, a chemical abstract and testing of substances found at the factory, were consistent with the Crown's case but did not themselves establish beyond reasonable doubt that the bags contained methcathinone [18]. The appeal turned on the reliability of the analysis of the bag contents.
The judgment explains three forms of testing used in chemical identification: gas chromatography mass spectrometry (GCMS), thin layer chromatography (TLC) and infra-red spectrography (IR) [19]–[23]. The experts generally regarded GCMS as the most reliable of the three. TLC and IR could support conclusions from GCMS but were not treated at trial as independently sufficient to prove the identity of the powder beyond reasonable doubt [24]. The analysts initially lacked a curator's sample of methcathinone, so they compared results with published literature standards [25]–[27].
Barr J focused particularly on the GCMS criteria the experts agreed were relevant: retention time, characteristic ion pattern and relative ion intensity [29]. In the July test, Ballard concluded from visual comparison that the first sample was methcathinone. But the relative intensities of ions 77 and 51 differed markedly from those in the literature standard. The manual's stated tolerance for comparison with literature spectra was plus or minus 20 per cent. Ballard's measured results were substantially outside that range [31]–[35]. Barr J considered that the jury ought to have treated the conclusion as tentative and questioned how firmly the ion patterns could be said to match [37]–[38].
The manual's status was contested. The Crown analysts treated it as guidance rather than a rigid set of rules, while the defence expert described it as part of the laboratory's required quality documentation [39]–[42]. Barr J did not accept that the jury had to accept the defence expert's every view, but considered that it could not treat the manual as having little or no authority. In particular, the jury had to treat the analysts' substantial departures from it as relevant to the weight of Ballard's opinion [61]–[62].
The later GCMS testing raised a separate set of concerns about retention time and records. The instrument was programmed with a 9.8-minute retention time and a 0.2-minute permissible window [49]. The curator's standard produced a retention time of 9.78 minutes. The first unknown sample produced 9.55 minutes, a difference of 0.23 minutes, yet the computer report labelled it “methcathinone” [52]–[55]. Ballard said he might have interacted with the instrument and possibly widened the window, but could not specifically recall doing so. There was no amended summary documenting a changed window [56]–[58]. Barr J considered the test summary misleading because it gave the impression that the tests had been performed under the original settings [57].
The Court did not treat the later tests as curing the difficulty. It considered the evidence about different solvents unconvincing in the absence of records identifying the solvents, and found that the later analyses did not remove the doubts about the Crown's conclusion [63]–[64]. The judgment also considered the shortcomings of the defence expert's evidence, but held that those shortcomings did not justify disregarding the problems in Ballard's analysis [61]–[62].
The governing appellate approach was stated with reference to M v The Queen (1994) 181 CLR 487. The appellants had to satisfy the Court that, on all the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the bags contained methcathinone [17]. Barr J concluded that, even after giving appropriate weight to the evidence that supported Ballard's opinion, the jury should have continued to have a reasonable doubt [65].
The judgment identifies the applicable legal framework as the unreasonable-verdict ground, citing M v The Queen (1994) 181 CLR 487 [17]. It does not purport to reformulate that authority or set out a wider test beyond the proposition it cites: the appellate court considers all the evidence and asks whether it was open to the jury to be satisfied beyond reasonable doubt of the relevant fact.
The decision's application of that approach is fact-sensitive. It does not state that a departure from a laboratory manual automatically invalidates scientific evidence, nor that a result outside a stated tolerance necessarily proves that a substance is not the drug alleged. Indeed, Barr J noted that the defence expert's categorical approach to tolerance limits seemed unreasonable because it left no room for contamination, equipment malfunction or uncertainty [42]. The judgment instead treats the manual, the test results, the analyst's explanations and the missing or misleading records as matters bearing on the reliability and weight of the particular opinion.
The decision's “after” effect, as disclosed by the judgment, is the result in these appeals: the first ground succeeded, the convictions were to be quashed and acquittals entered [67]. The text does not establish a general change in the legal status of forensic evidence, laboratory manuals or expert testimony.
At [17], Barr J sets out the appeal question by reference to M v The Queen: the appellants had to show that “it was not open to the jury” to be satisfied beyond reasonable doubt that the bags contained methcathinone. In plain English, the appeal court was not simply choosing which expert it preferred. It had to decide whether the evidence could properly support the jury's finding to the criminal standard.
At [37], Barr J says the jury ought to have regarded Ballard's July conclusion as “tentative at best”. This reflects the marked difference between the measured ion intensities and the literature standard, assessed against the manual's stated acceptance criterion.
At [57], Barr J describes the pre-test summary as “misleading” because it suggested the tests used a retention-time window of 0.2 minutes, while Ballard's evidence raised the possibility that the window had been widened. In ordinary terms, the document did not reliably show the conditions under which the reported results were generated.
At [62], Barr J says the jury had to treat with caution the visual comparison of ion patterns and regard the unexplained interaction with the machine and the inaccurate test summary as casting serious doubt on the integrity of the opinion. The point was not simply that documentation was imperfect. The missing documentation made it difficult to assess whether the result had been produced using the stated method.
At [65], Barr J concludes that the jury “should have continued to have a reasonable doubt” about the correctness of Ballard's opinion. That is the decisive link between the evidence defects and the appellate result.
At [67], Barr J states that the first appeal ground should be upheld and proposes that the convictions be quashed and acquittals entered. The other appeal grounds were not decided.
This judgment is most directly relevant to a criminal appeal where proof of an essential fact depends heavily on expert scientific identification, and where the trial evidence reveals concrete grounds to doubt the reliability of the expert's conclusion. Here, those grounds included a substantial mismatch in relative ion intensities against the laboratory manual's stated tolerance [31]–[38]; uncertainty about the significance and authority of the manual [39]–[42]; a retention-time result outside the stated window [53]–[57]; a possible undocumented change to testing conditions [56]–[58]; and a lack of an accurate record of the conditions used [57]–[62].
The judgment does not say that every such defect will make a verdict unreasonable. Nor does it say that any disagreement between experts requires an acquittal. Its reasoning depends on the combined force of the evidence in this case and the central importance of the disputed analysis. Barr J expressly took account of the weaknesses in the defence expert's presentation, but still concluded that the problems in the Crown analysis left the jury with a reasonable doubt [61]–[65].
For practitioners reviewing a judgment or record with similar issues, the questions raised by this decision include: What was the critical scientific proposition the Crown had to prove? Which tests and standards were used? Were the test results compared against a curator's, library or literature standard? Were the laboratory's stated criteria followed? Are departures documented and explained? Does the evidence support the analyst's interpretation, including the relevant measurements? These are questions for analysis of the evidence, not automatic answers about the outcome of another case.
The supplied judgment identifies M v The Queen (1994) 181 CLR 487 as the authority applied to the unreasonable-verdict ground [17]. It does not cite any later decisions, and the material provided contains no information about how subsequent courts treated Piggott, Griffiths & Simeon. Accordingly, no claim about later application, distinction, approval or criticism can be grounded in this judgment alone.
The case's own stated significance is its application of the M v The Queen approach to a verdict depending critically on disputed analytical evidence. Any account of its later precedential treatment would require sources beyond the judgment supplied here.
Several questions remain outside the decision's scope. The Court did not determine the appellants' other grounds or their sentence appeals because the first ground disposed of the convictions [67]. It therefore did not address the other potential legal or evidentiary issues raised in those appeals.
The judgment also does not establish a general rule about the legal status of laboratory manuals. It records competing evidence about whether the manual was a mandatory protocol or a guide to professional practice, and concludes that the jury could not treat it as having little or no authority in the circumstances [39]–[42], [61]–[62]. It does not resolve how a different manual, laboratory practice or expert explanation should be assessed.
Nor does the judgment state a universal threshold for variation in retention times or ion intensities. Its conclusion concerns the particular results, the information available about the applicable criteria, the analyst's explanations and the absence of clear records. It likewise does not decide whether the powder was in fact methcathinone; it decides that the jury should have had a reasonable doubt on the evidence before it [65].
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CITATION : R .v. PIGGOTT, GRIFFITHS & SIMEON [2002] NSWCCA 218 FILE NUMBER(S) : CCA 60494/01; 60504/01; 60522/01 HEARING DATE(S) : 13 March 2002 JUDGMENT DATE : 7 June 2002
Brendan James PIGGOTT - Appellant PARTIES : John Henry GRIFFITHS - Appellant Michael SIMEON - Appellant Regina - Respondent JUDGMENT OF : Spigelman CJ at 1; Barr J at 2; Bergin J at 68
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0673; 00/11/0675; 00/11/0674 LOWER COURT JUDICIAL Davidson QC DCJ OFFICER :
Mr J.W. Fliece for the appellant Mr Piggott COUNSEL : Mr R.A. Bonnici for the appellants Mr Griffiths & Mr Simeon Mr P.G. Ingram for the Crown Mark Klees & Associates for the appellant Mr Piggott SOLICITORS : Paul A. Brown, Solicitors for the appellants Mr Griffiths & Mr Simeon S.E. O'Connor for the Crown CATCHWORDS : Criminal law - verdict of guilty - whether unreasonable - Criminal law - verdict of guilty - whether unsupportable having regard to the evidence LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 CASES CITED: M v The Queen (1994) 181 CLR 487 DECISION : See Judgment at Paragraph 67
IN THE COURT OF CRIMINAL APPEAL 60494/01 60504/01 60522/01
Spigelman CJ Barr J Bergin J
7 June 2002 Regina .v. Brendan James PIGGOTT Regina .v. John Henry GRIFFITHS Regina .v. Michael SIMEON Judgment 1 Spigelman CJ: I agree with Barr J 2 Barr J: The appellants, Brendan James Piggott, John Henry Griffiths and Michael Simeon appeal against their convictions in the District Court, each for the offence of knowingly taking part in the manufacture of not less than the commercial quantity of a prohibited drug, namely methcathinone. Mr Piggott and Mr Simeon appeal also against their convictions for supplying not less than the commercial quantity of the same drug. All the appellants also seek leave to appeal against the sentences imposed. 3 During the early part of 1999 Mr Griffiths, operating under the business name " Solvent Solutions", purchased chemicals and laboratory glassware from wholesale suppliers. Mr Simeon took a lease of premises, referred to at the trial as a factory unit, at Castle Hill. 4 On 28 and 29 June and again on 1 July 1999 the three accused visited the business premises of wholesale chemical suppliers. They travelled between the premises of those suppliers and the factory unit at Castle Hill in a motor vehicle owned by Mr Pigott. 5 On 29 June 1999 the police, accompanied by Mr Murtagh, a forensic analytical chemist, entered the factory unit pursuant to a search warrant. They made observations and took photographs. They took away for examination samples of materials they found there. 6 They visited the premises again on the following day. 7 On 1 July 1999, a video/audio recording was made of the activities of all three accused in the factory unit. They were the only occupants at any relevant time. The recording was continued on the following day, when only Mr Pigott and Mr Simeon were present. Mr Pigott and Mr Simeon were arrested when they emerged from the factory shortly after 9pm on 2 July 1999. Immediately preceding their arrest Mr Piggott had driven his motor vehicle out of the factory premises. He was seated in it whilst Mr Simeon was in the act of closing the roller door. On the front passenger's side of the vehicle, a police officer found plastic bags containing a further seven smaller plastic bags, each containing powder. 8 It was the Crown case that the seven bags contained 979.1 grams of methcathinone. Each appellant was charged with having been knowingly concerned in its manufacture. In addition, Mr Piggott and Mr Simeon were charged with its supply, constituted by their possession of it for the purpose of supply. 9 On 3 July 1999 the police and Mr Murtagh searched the factory unit and its contents more thoroughly. They found a variety of chemicals and a large number of items of chemical glassware and other apparatus. From this and from the video evidence it appeared that all three accused on 1 July, and Mr Pigott and Mr Simeon on 2 July were engaged in the chemical process which resulted in the manufacture, within the meaning of that term as it is used in the Drug Misuse and Trafficking Act, of the contents of the plastic bags. 10 There was also present in the factory a quantity of powder, traces of which were detected on apparatus or utensils. Video evidence indicated that a small quantity of powder, estimated by Mr Murtagh at not more than about 20 grams or so, was added by the accused to other substances, and that the whole of the resulting mixture underwent the process of washing in acetone, designed to remove impurities from it. 11 In washing the impurities from the substance all three accused on 1 July and Mr Pigott and Mr Simeon on 2 July were engaged in purifying it and hence were knowingly taking part in a step in the process of its manufacture. 12 Apart from the 20 grams to which I have referred, the 979.1 grams was not otherwise manufactured at the factory unit. The evidence did not disclose where it was manufactured in any sense other than by purification. 13 At the factory unit the police officers and Mr Murtagh found documents in which were recorded two versions of the same chemical recipe. Documents in essentially the same form were found in Mr Pigott's motor car following his arrest on 2 July and a further similar version was found in Mr Simeon's house on 3 July. These were all typewritten documents and took two forms. The first was a recipe with nineteen numbered steps, indicating a process by which some sort of chemical reaction, up to and including purification by washing in acetone, might be achieved. 14 The second version was to the same effect, without typewritten numbered paragraphs but in which the quantities of the substances to be used were recorded in half-measures. 15 In Mr Griffiths' premises was found a published chemical abstract from a Russian source for the synthesis of methcathinone. Both versions of the recipe were substantially based upon and were derived from that abstract. 16 In due course the trial judge expressed himself satisfied beyond reasonable doubt that the typewritten documents were substantially chemical recipes for the manufacture of a prohibited drug, which was likely to be methcathinone to the knowledge of each of the accused.
17 The major issue at the trial was whether the powder in the bags contained methcathinone. The first and principal ground of appeal of each appellant asserts that the verdict (or verdicts) is unreasonable or cannot be supported having regard to the evidence. Each appellant says that the quality of the evidence was such that the jury were bound to have a reasonable doubt about that ultimate fact. Accordingly, the appellants must satisfy the Court that on all the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the bags contained methcathinone and return verdicts of guilty: M v The Queen (1994) 181 CLR 487.
18 There were several pieces of evidence consistent with the conclusion that the bags contained methcathinone but which could not individually or collectively prove beyond reasonable doubt that they did. Examples were the recipes, the chemical abstract and the results of test done by Mr Murtagh on substances removed from the premises and showing, if accepted, the presence of methcathinone. The Crown accepted and the jury were directed that the Crown could prove the charges only by satisfying the jury beyond reasonable doubt of the reliability of the chemical analysis of the contents of the bags. Two chemical analysts, Mr Murtagh and Mr Ballard, gave evidence for the Crown and one, Dr Kibby, for the defence. Only Mr Ballard analysed the contents of the bags, so his evidence was critical to the proof of the Crown case. 19 The evidence established that there are three tests by which the chemical analysis of an unknown substance might be determined. The first is a double test called Gas Chromatography Mass Spectrometry (GCMS), the second is called Thin Layer Chromatography (TLC) and the third Infra-red Spectrography (IR). 20 In GCMS the substance it is desired to identify is dissolved and the solution is introduced into an instrument which incorporates a column whose interior surfaces are coated with material that causes different substances to move at different speeds. The solvent moves very fast and becomes separated from the other components of the solution. As each other component passes out of the instrument a computer records a peak on a graph. The size of the peak is proportionate to the amount of the substance present. An electronic detector records the time that elapses between the introduction of the solution into the instrument and the passage of the dissolved substance out of the instrument. That elapsed time is called the Retention Time. The instrument prints out what is called the Total Ion Chromatogram (TIC), showing, by printing peaks on a graph, which materials have passed through the machine and their retention times. 21 The second function of the apparatus is called Mass Spectrometry (MS). In it the emerging substance is electronically bombarded and converted into electrically charged particles, or ions. The test results are displayed by a computer-produced series of vertical lines or peaks on a graph, showing which ions are present and in what quantities. The position on a scale of each line or peak corresponds with the molecular weight of the ion detected and its height with the relative intensity or quantity of the ion. So the testing of a given substance should produce a typical pattern. The tester can measure from the graph and calculate the intensity of other ions detected relative to the major ion, expressing the result as a percentage figure. This is called the relative ion intensity. The tester can also instruct the computer itself to make this calculation. For this purpose the tester is concerned only with the four ions next in intensity to the major ion. 22 In TLC the unknown substance is dissolved in a mixture of solvents designed to separate its component parts. A small quantity of solution is placed on a line at the base of a rectangular plate. The plate is treated or processed so that component substances move up the plate in the solution to new positions according to their chemical composition. The distance so moved is called the Rf value. A number of dissolved substances can be dealt with in the one test on the one plate, including solutions of substances whose chemical compositions and Rf values are known. The solvent evaporates and "spots" of the unknown and known substances are left on the plate. The positions of the spots are plotted, apparently by line of sight rather than by the instrument itself, and Rf values assigned. In this way unknown substances may be demonstrated to be identical or not identical to (as having or not having the same Rf value as) known substances. 23 In IR the unknown substance, which will absorb infra-red radiation, is dissolved in a solvent which will not. An instrument scans the solution and measures the rate at which radiation is absorbed. It produces its results by printing out a spectrum, which may be compared with the spectra of known substances. 24 Mr Murtagh and Mr Ballard, both chemists employed by the Australian Government Analytical Laboratories (AGAL), and Dr Kibby, an analytical chemist of considerable experience, agreed generally that the most reliable of the three tests was GCMS. They did not agree about the value of TLC and IR. Dr Kibby, for example, thought that TLC results were of little worth. What can be said with confidence is that TLC and IR results were treated at the trial as being capable of supporting conclusions reached by GCMS testing but not, standing alone, of proving beyond reasonable doubt the nature of the powder in the bags. 25 Conclusions based on the results of GCMS testing require a comparison between the result patterns of unknown substances and those of known substances. An analyst may obtain the relevant patterns of known substances in any of three ways. Ideally, the known substance will be available to the analyst for testing on the same apparatus at the same time as the unknown substance. This is called a curator's standard. Secondly, the apparatus to be used may already have tested the known substance. The results retained in the database are called the library standard. None of the tests carried out used library standards. When a laboratory does not have a sample of a known substance for comparison the analyst has to resort to comparing the test results with results published in scientific publications. These are referred to as literature standards. The three experts said that matches with curator's standards were preferable to literature references which, of course, require the application of human judgment and are therefore subject to human error. Even so, the AGAL manual provides that literature standards are an acceptable source for comparison. 26 Methcathinone has been a prohibited drug under the Drug Misuse and Trafficking Act only since December 1996 and the Court was told that this trial was the first in New South Wales concerned with that drug. Although both Mr Murtagh and Mr Ballard had had substantial experience as analytical chemists - Mr Murtagh had been over thirty years with AGAL and Mr Ballard had eleven years' experience as an analytical chemist including three and a half years at AGAL - neither had analysed methcathinone before. 27 When Mr Murtagh began to test the substances taken from the factory unit AGAL had no curator's standard for methcathinone. Using TLC, which he conceded as the crudest of the tests, and GCMS, Mr Murtagh concluded by visual comparison with literature standards that a number of samples contained methcathinone. He told Mr Ballard his opinion. It is unnecessary to deal here with the attacks made at trial on the reliability of these conclusions. What is important about them is that from then on Mr Murtagh and Mr Ballard, who not long afterwards became associated with the testing, thought or expected that the bags might contain methcathinone. 28 Seven samples, one from each bag, were taken by AGAL and numbered 991685 to 991691. They went to Mr Ballard for testing. On 12 July 1999 he did an IR test on them all and concluded by reference to literature standards that each was methcathinone. He conceded at the trial that further testing was necessary to confirm that conclusion. On the same day Mr Ballard carried out TLC tests on the seven samples and came to the same conclusion. However, he did not regard those results as settling the identification of methcathinone. 29 It was agreed between the experts that there were three factors important to the validity of an identification by GCMS, namely the retention time, the characteristic pattern of ions and the relative intensity of ions. 30 AGAL maintained a manual, an extract of which put into evidence as Exhibit WW. The extract comprises pages 12 and 13 of a 29-page document and the body of it is as follows - 7.0 GAS CHROMATOGRAPHY MASS SPECTROMETRY Many of the above considerations concerning Gas Chromatography instrumentation are also applicable to GC-MS systems. Autotune: is an automated tuning program for general purpose MSD operation. It optimises MSD performance. In autotuning the mass number is calibrated, the mass peak resolution is adjusted as is the sensitivity or relative intensity. The data system automatically adjusts MSD parameters to meet certain predefined performance criteria.
Identification of Substances by GCMS · Each analyst should be able to identify the MS of a substance by direct comparison to a reference spectrum and be able to determine any significant differences · The MS should contain sufficient details (pattern of peaks and relative abundancies(sic)) to identify the substance by comparison to a reference spectrum. The reference spectrum should be obtained from one of (1) standard actually run on the same GCMS (2) library search reference data match (3) literature reference e.g. "Pharmaceutical Mass Spectra" The Pharmaceutical Press, London. · Individual compound identification should be done by comparison with reference spectrum. Comparison may be done against the reference spectra manually or using the table of relative ion abundances.
Acceptance/rejection criteria for relative abundances of the five most significant masses: ± 10% of the standard run on the same day on the same instrument, and or ± 20% of reference spectra. · If the MS contains several relatively abundant ions at the high mass end, comparison with the condensed library spectrum may be sufficient. For substance that contain only one or two relatively small sized ions an expanded scale spectrum should be printed and this compared with a slightly expanded spectrum run of the reference standard · The retention time should be considered as certain high mass molecules may match an MS but would be unlikely to have a similar retention time to the unknown · A satisfactory spectrum may be difficult to obtain for trace drug components. The spectrum may be highly indicative of a particular drug component but contain additional small peaks (instrumental background, contamination) not present in the reference spectrum. Do not eliminate a substance due to the presence of such small peaks. · Condensed library spectra contain only the most significant peaks as selected by the instruments library creation algorithm. The proportion of minor peaks may vary from one analysis to another, instrument to instrument and may be affected by background and sample concentration. 31 On 15 July 1999 Mr Ballard carried out a GCMS test on sample 991685 and by a visual comparison with a literature standard concluded that the substance was methcathinone. He was cross-examined on the question whether the relative intensity of the ions came within the 20% tolerance provided for in the manual. 32 The literature standard was set out in a document which became Exhibit 158. Mr Ballard agreed that the 20% tolerance was to be calculated on the literature standard, not on the results of tests of the unknown substance. His test results were set out in a document Exhibit 157. Exhibit XX was a computer-produced calculation assigning intensities to the ions Mr Ballard's test showed to be present. The most abundant ion in the tested and the literature samples was ion 58. The next four most abundant ions, not necessarily in decreasing order of size, were numbers 77, 51, 56 and 42. The value of 100% was assigned to ion 58 and lower percentage figures to the other ions according to their abundances relative to that of ion 58 as revealed in the test results. 33 Mr Ballard agreed in cross-examination that the following were the relevant intensities of ions 58, 77 and 51. In the literature standard ions 77 and 51 were present in about equal intensities and each was assigned a value relative to ion 58 of 11%. According to the manual, therefore, ions 77 and 51 of the tested unknown substance would meet the acceptance criterion if their intensity, expressed as a percentage of the intensity of ion 58, fell within the range 8.8% to 13.2%. Mr Ballard calculated the intensity of ion 77 from his results in Exhibit 157 at 23%. The computer-calculated intensity in Exhibit XX was 24.19%, exceeding the literature standard by 83%. Mr Ballard calculated the intensity of ion 51 from the results in Exhibit 157 at 28%. The computer-calculated intensity was 29.23%, exceeding the literature standard by more than 120%. There was this evidence - Q. We have agreed, of course, that the only way the most intense peak in the spectrum is termed the base peak and all others are reported relative to its intensity. That is it, isn't it? You can't get around that, that is just not in the manual, is it, that is scientific precision? A. That is the way of calculating the relative ion intensities, yes.
Q. Why calculate the relative ion intensities? A. As I said, it is not often done. I can't think of any occasion in the laboratory where myself or others I have worked with have actually done that. It is not procedure. Q. These manuals and the NATA Service Charter aren't all put out for mere fun, are they, is that what you are saying? A. No, not at all. These manuals of which Exhibit WW is part are written according to the practices that we use. NATA then look at our practices, look at the manuals and their accreditation is based overall on that. But these manuals aren't just strung up and blindly followed. These manuals are written up from what is being done. Exactly what the writer of this particular document meant by 'comparison against the reference spectrum manually' I can't comment on but they would have written that with regard to what was actually done in the laboratory and what is actually done in the laboratory is a visual comparison. Q. Even for a substance that is unknown and not previously analysed? A. I believe so, yes. Q. Do forensic chemist have a certain magic that ordinary humans don't? A. I wouldn't describe it as anything magic and, as I have previously said, there is nothing mystic about methcathinone. It is another substance like any other we analyse. We analyse it in the same manner as every other substance we receive in the laboratory.
Q. You see, WW ruins your confirmatory test, doesn't it? A. I don't believe it ruins it, as I said these methods are dynamic. They are changed from time to time if something is found to be in need of change. Q. Which is wrong if you accept that relative intensity of ions is not just proper but proven scientific procedure and I think we have all accepted that. Am I right? A. I would say yes, it is proven procedure.
34 The references to NATA were to the National Association of Testing Authorities, an Australian body which accredits scientific institutions. 35 Mr Ballard said that when he tested sample 991685 he knew that the testing equipment could print out the relative ion intensities but that it was not the practice in the laboratory to do so. This question and answer followed - Q. Because if you had produced these results, 1685, which is Exhibit XX, there is no way, would you agree with me, that those results could stand up with what the manual says you are supposed to do, is that right? A. According strictly to the manual, yes. 36 No comparison of retention times could be carried out at that stage because AGAL had no curator's standard for methcathinone. 37 In view of the remarkable discrepancy between the relative ion intensities of the reference sample and the tested sample and the acceptance/rejection criterion of plus or minus 20% provided for in the manual the jury ought in my opinion to have regarded Mr Ballard's conclusion as tentative at best. 38 Mr Ballard formed his conclusion by reference only to the second of the criteria, namely the appearance of the characteristic pattern of ions. Given that the relative intensity of ion 77 was almost twice as great as in the literature standard and that that for ion 51 was more that twice as great, I think that the jury ought to have wondered how firmly Mr Ballard could hold the view that the pattern appearance of the tested sample matched the literature standard. 39 The evidence about the AGAL manual, its status, intention and authorship, was unsatisfactory. Only two small parts of it were tendered. According to Mr Murtagh it was written by scientists for scientists to assist analysts, not to replace their skills. It was not to be read in a black and white fashion. He rejected what he called its dogmatic approach. Speaking of the tolerance margins for relative ion intensities, he made a number of statements which may not have sat well together, namely that the tolerance levels were valid, that the authors had given insufficient weight to the difference between two makes of testing instruments and that a test result falling outside the 20% margin should exclude a match technically, though it did not show that a conclusion to the contrary was wrong. He was not asked to explain what he meant by the word "technically". 40 Dr Kibby said this of the manual - It's a part of the quality accreditation re laboratory. You must have adequate documentation of the procedures that you use for analytical chemistry, and these procedures and protocols are to be followed by all staff. 41 Mr Murtagh and Mr Ballard routinely regarded the manual's statements only as guidelines. Occasionally they ignored them. An example comes from the evidence of Mr Murtagh about testing samples on 13 and 14 October 1999, by which time AGAL had the curator's standard for methcathinone. The manual provided for runs of blanks initially and between runs of the known and unknown substances, to ensure that the results were not contaminated by material remaining from any prior run. This extract is taken from his Honour's summing-up - … and (Mr Murtagh) gave in evidence that, in relation to these tests, he had not done them in accordance with the manual - "technically", again he said - in that he had not run a standard at the end of each blank, nor had he included duplicate runs as indicated by the manual. He claims, however, that the reference to "duplicates" relates to quantitation, not identity testing, even though the manual apparently indicates otherwise. He agreed that his runs in respect of these samples, however, was "technically" deficient, because they did not comply with the manual. You have heard the evidence relating to the importance of complying with these set standards and counsel's submissions to you in relation to that, particularly from Mr Mayne, whose evidence in cross-examination I am presently dealing with, but also from Mr Fliece and Mr Bonnici. You may ask yourselves whether substantial non-compliance with these set standards, designed to produce validity in the results of an analysis, can be properly regarded as merely technical. 42 Dr Kibby took the opposite approach and submissions by the appellant at trial and in this Court based on his evidence were to the effect that a test result falling outside the tolerance margin showed that the unknown substance must be a substance other than methcathinone. Such an approach seems unreasonable to me, if only because it makes no allowance for contamination or equipment malfunction and admits no possibility that an analyst may be unsure of the identity of a tested substance . 43 Dr Kibby also said this - Q. How important is the criteria (sic) of relative ion intensities in relation to identification of a compound which is known against a compound which is unknown please? A. Well, it's critical. But remember the first criteria (sic) is retention time. It's when the retention times match that you then have to progress to the ions observed and then the relative intensities of those ions. But if the retention times don't match, you don't even progress to the second and third criteria. 44 Dealing with the diametrically opposed views of the experts, the Crown put to the jury and repeated in this Court that notwithstanding the provisions of the manual the approach of Mr Ballard and Mr Murtagh was a principled one. Referring to Mr Ballard's identification only by ion pattern, the analogy was drawn of a person recognising a common make of motor car. It could be legitimately done in either of two ways, it was submitted, namely by looking at it and assessing the make and model by reference to the way the make and model always appeared, or by recording the number of all the component parts and comparing them with the manufacturer's list of parts. 45 In my opinion the analogy is of limited value. The recognition of a motor car as of a well-known model requires at least two things to happen. First, the observer has to have seen a substantial number of cars of that model in conditions which will impress all the distinctive aspects of its profile on the memory. Secondly, the car to be identified has to be seen in conditions which enable all the distinctive aspects of its profile to be seen. It is by no means clear that the shape or chemical profile of methcathinone was known to Mr Ballard, though he had read in the literature about the ion pattern that might be expected to be seen. He had never analysed methcathinone before, even though the process of analysis was the same as for any other chemical substance. He did not see all aspects of the shape of the test samples before reaching a conclusion, but only the shape represented by the ion pattern. As the cross-examination revealed, the shape that Mr Ballard saw must have differed to some degree from the literature description. 46 The analogy also assumes that the observer has no expectation about the make and model of motor car about to be seen, a condition that did not exist here. 47 AGAL received its curator's sample of methcathinone on 5 August 1999. On 25 August Mr Ballard did a GCMS test of each of the seven samples. Unlike Mr Murtagh, he ran a sequence of tests in accordance with the manual, comprising one blank, three standard runs, one further blank run, a first and a duplicate run on the first sample (991685) and one run for each other sample followed by a further blank and a final standard run. 48 Mr Ballard prepared to run GCMS tests, as he said to establish that the substance was methcathinone. Before starting them he programmed the instrument and a summary of the intended test runs was printed out. It was tendered by counsel for Mr Griffiths and became Exhibit U. 49 Mr Ballard's evidence was that he keyed in the name of the substance to be tested as "methcathinone" and that he probably keyed into the instrument a retention time of 9.8 minutes. He either keyed in or left in 0.2 minutes as the maximum permissible difference in retention time. On the summary Exhibit U the retention time of 9.8 minutes and the tolerance margin, called "window", of 0.200 minutes appear. Next to each of the samples listed in Exhibit U appear under the heading "source", the letters "ACQU". They are an abbreviation of "Acquisition", an instruction to the computer to acquire data from the samples being run 50 The instrument took about 29 minutes to perform each run. 51 The form of report for each individual run had provision for printing the date and time of commencement, the name of the component and the retention time, among other things. There was no provision for showing the tolerance margin or window. There was provision for printing the word "acquire" if the computer, according to its instructions, acquired its data from samples run. Each report also incorporated a graph with a computer-produced peak. If the peak fell within the window, the computer would print "methcathinone" at the apex of the peak, but would otherwise not print the name of any substance on the graph. 52 The results of the first three curator's standard tests were printed. They became Exhibits V, W and X. On each report the retention time is printed as 9.78 minutes. It was common ground that the expected retention time for methcathinone was 9.8 minutes, but it was also agreed that a difference of 0.02 minutes was insignificant. Following the next blank run the unknown samples were tested and the results printed on documents that became Exhibits S to GG. 53 It was agreed that the retention time for each of the seven unknown samples should not differ from the retention time for the curator's sample by more than 0.2 minutes. There was no direct evidence as to the manual's requirements, in that respect. No relevant portion of the manual was tendered. However, the portion of Dr Kibby's evidence extracted above implied that the manual mandated a tolerance margin of 0.2 minutes. 54 The first three runs, on the curator's standard, produced identical results, including retention times of 9.78 minutes and the printed annotations "methcathinone" on the graph. According to the reports, the first run commenced at 12 hours 13 minutes 37 seconds, the second at 12 hours 42 minutes 37 seconds and the third at 14 hours 16 minutes 21 seconds, all on 24 August 1999. The reports of the first two runs, Exhibits V and W, bore the printed word "acquire". That of the third run, Exhibit X, bore instead the word "file". 55 The report on the test of the first of the unknown samples, Exhibit Z, showed the retention time at 9.55 minutes. Surprisingly, because that time was more than 0.2 minutes less than the standard retention time, the report printed "methcathinone" at the apex of the peak. Like Exhibit X, it bore the printed word "file", not "acquire". Mr Ballard was cross-examined about how such things could have happened. Then there emerged a fact which had not been mentioned (or perhaps noticed, for this is not intended to be any criticism of the Crown Prosecutor) during Mr Ballard's evidence in chief, namely that the run was recorded as having commenced at 14 hours 17 minutes 52 seconds on 24 August 1999. That was impossible if the preceding run with the standard sample(report Exhibit X) did not begin until 14 hours 16 minutes 21 seconds and took about 29 minutes. 56 Curiously, Mr Ballard then said that he was conducting the tests not to confirm that the substance was methcathinone but only for the purpose of quantitation. He agreed in cross-examination that the notation "methcathinone" should not have appeared on the graph in view of the difference between the retention times. Later on, he confirmed that each run took about 29 minutes. There were these questions and answers - A. Further looking at this last night, going through them with the times, it appears that I did use the instrument some time after 12.42 and before 14.16 - 2.16 - that day.
HIS HONOUR: Q. Between 12.42 - is that what you said? A. Yes, 12.42
Q. And what time? A. And 14.16, which is the next print-out.
BONNICI: 14.42 is the last. HIS HONOUR: Q. I'm sorry, when you say you used the instrument, you mean for something else? A. Not for something else, but I believe I had some interaction with the instrument.
BONNICI: Q. Exhibit W is 12.42pm, is that right? A. That's right. Q. Why would you set a sequence up the way you did and you've got 0.2 window and you're only there for quantitative purposes as you say, why would you touch that sequence at all, Mr Ballard. A. Sequences are sometimes interrupted while they're running.
HIS HONOUR: Q. Sometimes interrupted? A. While they're running.
… BONNICI: Q. If you interacted with the machine there has to be a reason for that, doesn't there? A. Yes.
Q. What was your reason? A. I can't remember specifically, but I am guessing it's to, well I am assuming I had seen that the computer wasn't selecting the peak from exhibit Z onwards as methcathinone. Having already determined that it was methcathinone in those samples, and confirmed it by the previous tests, I believe I changed the window, opened the window a little to include it. 57 The summary of the sequence of tests, Exhibit U, was printed at 11 hours 11 minutes 37 seconds, before the first run began. It must have been intended and understood to be an accurate summary of the instructions then given to the instrument for the succeeding tests. As such it was misleading because it gave the impression that the tests that followed had been run subject to a limitation that a tested substance would be designated methcathinone only if the retention time fell within 0.2 minutes of 9.8 minutes. One would have expected an amended report in the form of Exhibit U to be printed, summarising the changed test conditions and listing the samples to be tested. There were these questions and answers - Q. Here of course the very reason you stopped the sequence in the, if we want to call it the lunch hour, and started it again, was to enlarge the window to possibly .3, certainly over .23, isn't that right? A. At this point I can't say whether that's why I stopped the sequence. Q. Has anyone else, would anyone interact with the machine to increase the width of the window from .2 to over .23? A. I don't believe so. Q. The fact is that the window on exhibit U showing .2 during the lunch hour had been increased to possibly .3, hasn't it? A. Possibly .3, yes. Q. Why isn't that documented please, so we can know the exact window that we are supposed to be looking at?
HIS HONOUR: Q. Are you saying that it was increased and it possibly could have been .3? I am not sure I fully appreciate your evidence. You are saying the window was increased? A. It was possibly increased.
BONNICI: Q. Not possibly, definitely increased, wasn't it? A. Again, I can't specifically recall it, but it would appear that I possibly increased the minute. Q. Let's forget whether you recall it or not. It's there documented in evidence that .23 is a difference in the retention times between the curator standard and the sample 1685 to 1691. It's in black and white on exhibit U, isn't it not, that the window is .2, and it's also in black and white in exhibits Z to GG that methcathinone has been printed out on the pieces of paper that have come out, without even saying who did it, the window has been increased to over .23, hadn't it? A. It would appear so, yes. Q. And when the window is increased, it's increased from .2 to .3 you wouldn't be doing .25? A. I don't know, I can't answer that. Maybe .3. Q. If anybody changed the window, it must have been you, is that correct? A. Yes, I'd say that's correct.
Q. So where's the record of that change? A. Unfortunately, there doesn't appear to be a record. It perhaps would have been more prudent of me if I had changed it, then to reprint exhibit U showing that. I think it's just --
Q. More prudent? A. It would have been a lot easier now to see that that was .3, Q. So from what I gather you now know definitely in the lunch hour you must have done that on 24 August 1999, am I right? A. Again, I can't say that I definitely did it, but --
Q. Could be there was a virus in the computer that did it? A. I can't answer that either, but it was quite possibly me who changed it. Q. And if you did, the only possible reason you would have done it is to ensure that on the window it appeared as the word methcathinone, isn't that right? A. To ensure that the area was displayed in the relevant box, the area of the peak.
… Q. Did you change exhibit U to show that or did you - why did you not tell anyone that you had done that please? A. Why didn't I change exhibit U?
Q. Mm hmm. A. It wasn't a purposeful thing. I guess, I already printed it out and I already printed out the sequence out in if I had changed the window, well, I guess it was an oversight. I forgot to reprint exhibit U which is the sequence. 58 Mr Ballard's attention was drawn to the appearance of the word "file" on Exhibits X and Z, whereas the display on the other reports was "acquire". There were these questions and answers - Q. Please go to Exhibit U to make it simpler for all of us. Number 1 blank, number 2 the standard, number 3 the standard, that is the ones run before12.42 pm and all have the word 'acquire' don't they? A. Yes they do on that list. All of them have the word 'acquire'. Q. But if you look after 12.42 pm, exhibits X, and Z, the word 'acquire' is not there, it is the word 'file? A. Yes that is true and if I printed them all out every single one would have the word 'file'. Q. But you didn't print them the following day, you printed them out between 12.42 pm and 2.17 pm on 24 August? A. Yes I did, I thought I had made that clear.
HIS HONOUR: Q. You printed all of these out? A. Exhibits X and Z I printed out, whether it was because the origins had been jammed in the printer or for some other reason I can't now say but I reprinted those two. BONNICI: Q. The only reason, Mr Ballard, is the difference, that there would be an extension of the window, there hasn't been a paper jam, has there? A. I can't now recall. 59 There was no evidence of any paper jam. 60 It was put to Mr Ballard that the difference in retention time of 0.23 minutes indicated that the unknown samples did not contain methcathinone. He said that if his explanation were discounted that was a conclusion which was open. It seems to me that that was a very important concession which ought to have been given weight by the jury. 61 The evidence about the authority of the manual and the respect which analysts ought to have had to it was, in the circumstances I have summarised, ambiguous. The jury were not bound to accept at face value the evidence of Dr Kibby, and I have given one reason by way of example justifying a critical appraisal of it. There were others, too. Some of the results he described as "absolutely amazing". He described the GCMS results of August 2000 as "…this rubbish proffered in evidence…". He described test results as "dreadful" and obliquely accused the Crown experts of being biased. The jury were in the best position to assess his demeanour and these illustrations show why they might not have been inclined to place much weight on his evidence. 62 But even so, I do not think that the jury were entitled to treat the manual as of little or no authority and I think that they were obliged in assessing the evidence of Mr Ballard to regard as substantial the manner in which he disregarded its statements. They were obliged, I think, in view of the relative ion intensities that were ultimately shown to exist, to treat with caution Mr Ballard's conclusion arrived at by visual comparison alone of the pattern on ions. The jury were also bound to regard what Mr Ballard described as his "interaction" with the testing apparatus, his putting forward a misleading summary of tests programmed as though they were carried out in terms and his not producing an accurate summary of tests actually done as throwing serious doubt on the integrity of his opinion based on those test results. 63 Evidence was adduced to try to explain why the differences in retention times should not invalidate Mr Ballard's conclusions. The first was that the solvent mixtures used for the standard and the unknown samples were different. In my opinion the jury should have found the evidence unconvincing in view of the fact that no record was made of the nature of the solvents used. Evidence was adduced of tests run on methylamphetamine and pseudoephedrine using two solvents in which retention times for pseudoephedrine differed by 0.4 minutes whereas those for methylamphetamine were substantially the same. However, no print-out of the mass spectrum of pseudoephedrine was produced and Dr Kibby disagreed that the peak referred to showed pseudoephedrine at all. In my opinion this evidence was unlikely to go any way towards removing the doubt thrown on Mr Ballard's conclusions. 64 Evidence was also adduced of GCMS tests done after Mr Ballard's certification. On 15 September 1999 sample 991691 was tested by Mr Murtagh and he concluded that the substance was methcathinone. However, the relative intensity of ions 77, 51 and 56 deviated by more than 20% from the standard relative intensity. On 18 August 2000 Mr Murtagh tested sample 991685. The relative intensity of ions was not significantly different from that in the test of 15 September 1999. The retention time was greater than 0.2 minutes from the standard 9.8 minutes and the shape of the computer-produced peak came under heavy criticism. The last test was done on 18 January 2001. All samples 991685 to 991691 were tested. The relative intensity of ions was not significantly different from that demonstrated in the two other tests and other criticisms were levelled at the results. In my opinion these results could go no way towards removing doubts about the conclusion contended for by the Crown. 65 When hearing an appeal under this ground the Court is to consider all the evidence. However, for reasons which I have explained it is not necessary to go outside the evidence of Mr Murtagh, Mr Ballard and Dr Kibby. In my opinion the jury, having considered the evidence of those witnesses and having given appropriate weight to such of it as might support Mr Ballard's conclusion, I should have continued to have a reasonable doubt about the correctness of Mr Ballard's opinion. 66 No complaint is made about the summing-up. The jury were appropriately instructed and their attention was drawn to the shortcomings of Mr Ballard's evidence. I think that serious doubts ought to have existed in the minds of the jury about his identification by visual comparison alone on 15 July 1999 and in the tests of 24 August 1999. I am fortified in my view by these remarks of the trial judge on sentence - In an interlocutory judgment, after the Crown case had closed, I expressed a view as to the value of Mr Ballard's evidence, in light of the cross-examination of him, and, more particularly, in light of his having admitted "interacting" with the GCMS testing on 25 August 1999, when it had become apparent that the machine had produced a retention time inconsistent with his previously formed opinion. I went so far as to say that if I had been the judge of fact, on that basis, and on the basis of other misgivings more particularly relating to relative ion intensities, I would have rejected Mr Ballard's evidence and acquitted each of the accused, in respect of all charges, on that ground alone. 67 I would uphold the first ground of appeal. It is unnecessary to deal with the remaining grounds of appeal filed by any of the appellants. I propose that in each appeal the appeal be upheld and the conviction quashed and that a verdict of acquittal be entered. 68 Bergin J: I agree with Barr J.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
M
The Queen
(1994) 181 CLR 487
The Court upheld the first ground of each appeal, proposed that each appeal be upheld, each conviction be quashed and a verdict of acquittal be entered. It was unnecessary to deal with the remaining grounds [67].