[2] A 'commercial quantity' of methylamphetamine was 50 grams of pure methylamphetamine or a mixed substance of 250 grams containing methylamphetamine: Part 3 of Schedule 11 to the DPCS Act.

[3] Phenyl-2-Propanone. A 'large commercial quantity' of MDMA was 750 grams of pure MDMA or a mixed substance of 1 kilogram containing MDMA; a large commercial quantity of methylamphetamine was 500 grams of pure methylamphetamine or a mixed substance of 750 grams containing methylamphetamine; and a large commercial quantity of P2P was a mixed substance of 500 grams containing P2P: Part 3 of Schedule 11 to the DPCS Act.

[4] 'Traffick' is defined in the DPCS Act to include the manufacture of a drug of dependence. The term is also defined to include preparing a drug of dependence for trafficking, as well as selling, exchanging, agreeing to sell, offering for sale and having in possession for sale, a drug of dependence: s 70(1).

[6] (3,4-Methylenedioxyphenyl)-2-propanone.

[8] Contrary to s 71D of the DPCS Act_._

[9] Contrary to s 71A of the DPCS Act_._

[10] Contrary to s 71AA of the DPCS Act.

[12] Contrary to s 71AC of the DPCS Act.

[13] Contrary to s 71A of the DPCS Act.

[14] Contrary to s 71D of the DPCS Act.

[17] Contrary to s 71AC of the DPCS Act.

[18] Contrary to s 7B(2) of the Firearms Act 1996.

[19] Contrary to s 71AA of the DPCS Act.

[20] Contrary to s 72D of the DPCS Act.

[21] Contrary to s 71A of the DPCS Act. The items that were the subject of charge 23 were listed in Schedule B to the indictment.

[22] McNally also filed his application for leave to appeal out of time but was granted an extension of time on 14 June 2024.

[24] Citing Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.

[25] Citing Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338, 364-70 [68]-[86] (Gageler J); [2017] HCA 20.

[26] (2018) 272 A Crim R 450; [2018] VSCA 135 ('Arico')

[27] Citing Arico [2018] VSCA 135; (2018) 272 A Crim R 450, 466 [71], 468 [88], 470 [104] (Maxwell ACJ and Weinberg JA), 495 [263] (Priest JA); [2018] VSCA 135.

[28] McNally's counsel pointed out that the trial judge had proceeded on the basis that the definition of 'manufacture' in s 4(1) of the DPCS Act, which states that 'manufacture includes the process of refining, manipulating and mixing any poison or controlled substance', applied. However, the parties conceded that this was incorrect because s 70(2) of the DPCS Act provides that the interpretation of 'manufacture' in s 4(1) does not apply to Part V of the DPCS Act. Nevertheless, there was no suggestion that the basis on which the trial judge had proceeded had resulted in any error.

[29] This is a reference to the liquid that was decanted from one of the two pieces of glassware in which the substances containing MDMA was found. The purity of the solid substances within those two pieces of glassware was much higher: see [165] below.

[30] Substance is defined to include 'material, preparation, extract and admixture': DPCS Act, s 4(1).

[31] [2007] VSCA 270; (2007) 17 VR 454, 461-2 [34] (Nettle JA); [2007] VSCA 270.

[32] [2011] VSCA 170; (2011) 32 VR 587, 611 [124] (Weinberg JA, Ashley JA agreeing 588 [1], Hargrave JA agreeing at 613 [143]); [2011] VSCA 170 ('Trajkovski').

[33] The respondent cited Kapkidis v The Queen [2013] VSCA 35, [23] (Maxwell P and Redlich JA), Taumoefolau v The Queen [2015] VSCA 221; (2015) 253 A Crim R 508, 516 [26] (Hansen, Whelan and Beach JJA); [2015] VSCA 221, and Djordjic v The Queen [2018] VSCA 227, n 41 (Whelan, Beach and Kaye JJA).

[34] DPCS Act, s 70(1) (definitions of 'commercial quantity' and 'large commercial quantity').

[35] [2007] VSCA 270; (2007) 17 VR 454, 461-2 [34] (Nettle JA); [2007] VSCA 270.

[36] Trajkovski [2011] VSCA 170; (2011) 32 VR 587, 611 [124] (Weinberg JA, Ashley JA agreeing 588 [1], Hargrave JA agreeing at 613 [143]); [2011] VSCA 170.

[37] An eighth proposed ground of appeal, which alleged that Doble's convictions were unreasonable and/or could not be supported having regard to the evidence, was abandoned at the hearing.

[38] Citing Astbury v The Queen [2020] VSCA 132, [48]-[48], [67] (Kaye, Niall and Weinberg JJA), R v Tangye (1997) 92 A Crim R 545, 556 (Hunt CJ at CL, McInerney J agreeing at 562, Sully J agreeing at 562), Tran v The Queen [2000] FCA 1888; (2000) 105 FCR 182, 203 [103], 204 [148] (Black CJ, Weinberg and Kenny JJ); [2000] FCA 1888.

[39] Citing Waters v The Queen [2011] VSCA 415, [103], [111] (Ashley JA, Weinberg JA agreeing at [140], Hargrave JA agreeing at [141]).

[40] Citing King v The Queen [1986] HCA 59; (1986) 161 CLR 423, 432 (Dawson J); [1986] HCA 59.

[41] Citing R v Chaouk (2013) 40 VR 356, 370 [9] (Nettle AP, Buchanan and Osborn JJA); [2013] VSCA 99, and Abernethy v The Queen (2020) 282 A Crim R 513, 531 [96] (Niall and Emerton JJA); [2020] VSCA 96.

[42] See [72] above.

[43] Doble pointed to s 18 of the Jury Directions Act 2015, which defines 'incriminating conduct' to mean conduct that amounts to an implied admission by the accused: (a) of having committed an offence charged or an element of an offence charged; or (b) which negates a defence to an offence charged.

[44] Section 20(1) of the Jury Directions Act 2015 provides that the prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless: (a) the prosecution gives notice in accordance with section 19; and (b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.

[45] See [132] above.

[46] In support of this submission, Doble pointed to the use of the expression 'offence charged includes any alternative offence' in s 18 of the Jury Directions Act 2015.

[47] Doble also made submissions about the prosecutor's failure to invite the jury to treat either piece of evidence as an implied admission of any particular charge, which was said to leave the jury to speculate about how the conduct was to be used as an implied admission. However, Doble ground 6 is framed only by reference to the trial judge's determination to permit the evidence to be relied on as incriminating conduct. To the extent Doble's submissions criticise the prosecutor's conduct in relation to this evidence, we have addressed those submissions as part of our analysis of Doble ground 4 above.

[48] Citing DPP v Lynn [2024] VSCA 62, [116], [121] (Emerton, Taylor and T Forrest JJA). See n 44 above.

[49] Jury Directions Act 2015, s 20(1)(b): see n 44 above.

[50] See DPP v Scriven [No 4] [2015] VSC 220, [23]-[27] (Maxwell P), cited in DPP v Lynn [2024] VSCA 62, [120] (Emerton P, Taylor and T Forrest JJA).

[51] See Cookson (a pseudonym) v The King [2024] VSCA 289, [141] (McLeish, Boyce and Kaye JJA).

[52] This is the mandatory direction on the use of evidence of incriminating conduct provided for by s 21(1)(a) of the Jury Directions Act 2015.

[53] This is the mandatory direction on the use of evidence of incriminating conduct provided for by s 21(1)(b) of the Jury Directions Act 2015.

[54] This is the optional additional direction on incriminating conduct in s 22(a) of the Jury Directions Act 2015.

[55] This is the optional additional direction on incriminating conduct in s 22(b) of the Jury Directions Act 2015.

[56] This is the optional additional direction on incriminating conduct in s 22(c) of the Jury Directions Act 2015.

[57] Citing MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ, Dawson and Toohey JJ agreeing at 351); [1996] HCA 35 ('MacKenzie').

[58] Citing Schliefert v The King [2024] VSCA 197, [37] (Priest, Taylor and Boyce JJA).

[59] Citing MacKenzie [1996] HCA 35; (1996) 190 CLR 348, 367 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35.

[60] MacKenzie [1996] HCA 35; (1996) 190 CLR 348, 366, 368 (Gaudron, Gummow and Kirby JJ, Dawson and Toohey JJ agreeing at 351); [1996] HCA 35.

[61] See, eg, Booth v The King [2024] VSCA 318, [126] (Beach, Kennedy and Orr JJA).

[62] MacKenzie [1996] HCA 35; (1996) 190 CLR 348, 367 (Gaudron, Gummow and Kirby JJ, Dawson and Toohey JJ agreeing at 351); [1996] HCA 35.