R v Blyth

C Loukas (Appellant) COUNSEL : G Smith (Crown) D J Humphreys Legal Aid Commission SOLICITORS : (Appellant)

S E O'Connor (Crown) CATCHWORDS : Criminal Law - ss 6 & 24(2) Drug Misuse & Trafficking Act 1985 - take part in manufacture - appeal against refusal to direct not guilty verdict - miscarriage of justice - appeal against sentence - finding of "principal" LEGISLATION CITED : ss 6 & 24(2) Drug Misuse & Trafficking Act 1985 R v CWW (1993) 70 A Crim R 517 R v Greatorex (1994) 74 A Crim R 496 CASES CITED: R v Karl Karam (1995) 83 A Crim R 416 Regina v Thomas (1993) ACR 308 The Queen v Filippetti (1978) 13 A Crim R 335 The Queen v Olbrich (1999) 199 CLR 270 DECISION : Time to appeal extended to 5 July 2001; appeal against conviction dismissed; leave to appeal against sentence granted & appeal against sentence dismissed

Mason P Levine J Howie J Monday 8 October 2001

2 Levine J: The appellant was tried in the District Court before Judge Nield and a jury and convicted of the offence of knowingly taking part in the manufacture of a prohibited drug, namely, 3, 4 Methylenedioxymethylamphetamine (MDMA - "ecstasy"), being an amount not less than the commercial quantity for such drug; see s 24(2) Drug Misuse & Trafficking Act 1985 which provides a maximum penalty of 3,500 penalty units or imprisonment for 20 years. He was sentenced to imprisonment for 5 years with a non-parole of 2 yeas and six months. He appeals against his conviction and seeks leave to appeal against the sentence.

3 There are two grounds of appeal: that his Honour erred in not directing a verdict of not guilty; alternatively, that the conviction constitutes a miscarriage of justice. (No complaint is made as to the trial judge's summing up to the jury). More specifically, it is contended, that there was not sufficient evidence to sustain a verdict of guilty because: (a) there was no or no sufficient evidence of manufacture of the specific prohibited substance; (b) there was no or no sufficient evidence of the appellant's knowing participation in the manufacture of any prohibited substance; and, (c) there was no or no sufficient evidence of the appellant's intention to manufacture not less than the commercial quantity of MDMA.

4 As to the structure of the trial, the evidence which went to the jury was only that called in the Crown case. It fairly can be remarked that that evidence overall was not challenged though its import or significance, in the light of the grounds of appeal before this Court, was.

5 Very briefly as to the facts: the execution of a search warrant on 22 February 1999 at premises at Waterloo, which the evidence disclosed the accused had said were "his place", revealed the existence of a clandestine laboratory. Its paraphernalia, spread widely over the premises, is described in detail in the evidence, particularly of Detective Clarke and Mr Judd, a Forensic Chemist. The latter noticed upon his examination of the premises a smell of safrole. Additionally a search of the vehicle being driven by the appellant (there is no evidence that the appellant was the registered owner of that vehicle), revealed two glass jars containing safrole. A fingerprint of the appellant was developed on the base of a glass vessel and in respect of two other fingerprints Detective Kirby was reasonably certain that they were, but could not positively identify them as, the fingerprints of the appellant. Traces of bromo-safrole were found on the appellant's jeans and running shoes. I interpolate that evidence in relation to the jeans and running shoes as exhibits being packed together and thus leading to a chance of cross-contamination from the shoes to the jeans around the pockets of which traces of the relevant substance were found in any event, could not in the end realistically, assist the appellant. It was open to the jury to reject any innocent explanation because of the proliferation of paraphernalia and the substances in fact found in the premises described by the appellant as "his" and in the vehicle he was driving. The same observation can be made as to the attempt to gain some comfort from the strength of "fumes" within the premises accounting in some way for the material in fact located on the appellant's clothing.

6 Mr Ballard, a Forensic Chemist, gave evidence as to the method of manufacture of MDMA in two steps as applicable in the circumstances of this trial: the conversion of safrole to bromo-safrole and then the reaction of bromo-safrole with methylamine to produce MDMA. All necessary apparatus for the process of MDMA was present. Traces of MDMA were found at the premises. Although no methylamine was found, it was the evidence of Mr Ballard that he was satisfied that that component must have been used somewhere and at sometime in the premises given the existence of the traces of the final product, MDMA.

7 As to the first ground of appeal, the learned trial judge approached the application for a not guilty verdict by appropriately cataloguing the elements of the offence: "1. The accused did something knowingly.

2. The thing that the accused did knowingly was to take part in something.

3. The thing in which the accused took part was the manufacture of something.

4. The thing that was manufactured was a particular prohibited drug, namely, 3-4 methylenedioxymethylamphetamine or MDMA.

5. The amount of the prohibited drug that was manufactured was not less than, that is, equal to or more than, the commercial quantity for that drug which is 125 grams". 8 His Honour thereupon considered the evidence with respect to each element and came to the conclusion under challenge.

9 It is first contended that there was no or no sufficient evidence of manufacture of the specific substance. His Honour dealt with this as follows: ""Thirdly, manufacture. The following evidence shows beyond argument that a manufacturing process was being conducted on the premises to manufacture Bromo-safrole (BS) by reaction between safrole and hydrobromic acid:

1. The smell of safrole about the premises.
2. The sound of the fan from the bedroom in which the manufacturing process was being conducted.
3. The apparatus within which the chemical reaction was taking place within this bedroom.
4. The apparatus about the premises generally.
5. The quantity of chemicals about the premises generally.
6. The safety equipment, the breathing mask and the goggles, on the premises.
7. The apparatus containing traces of, inter alia, MDMA found in the bedroom in which the chemical reaction was taking place.

8. The container containing, inter alia, MDMA in the roof space adjacent to the accused's bedroom. As the Crown Prosecutor said, the accused would have had to be blind and deaf and without any sense of smell to be unaware of what was happening on the premises". 10 I agree with his Honour's analysis of the evidence and would add that the presence of traces of MDMA was of special significance.

11 It was next contended that there was no evidence of the appellant's knowing participation in the manufacture.

12 What his Honour said on this element was as follows: "Firstly, knowingly. The evidence must show beyond reasonable doubt that the accused knowingly did something in the manufacture of something. To do something knowingly is to do the thing intentionally or deliberately with appreciation or awareness of the purpose for which the thing was done. The evidence does not prove directly what the accused knew about what he did in relation to the manufacturing process. But the evidence proves directly that he intentionally or deliberately did some things in relation to the manufacturing process, namely, he was living in premises in which a clandestine laboratory was operating, his fingerprints were found on two jars containing Safrole, his fingerprints were on one of the two glass vessels being used in the manufacture of Bromo-Safrole, BS, he had BS on his jeans and he had Safrole and BS on his shoes. In my view this evidence is capable of showing beyond reasonable doubt that the accused had knowingly done something in relation to the manufacturing process". 13 Furthermore, in this context, it was contended that there was no or no sufficient evidence of the accused's knowing "participation" in the manufacture of any prohibited substance.

14 His Honour said: "All that is required is that the evidence be capable of showing beyond reasonable doubt that he: A. Took part in any step in that process or: B. Provided the premises in which any such step in that process was taken or:

C. As the occupier of the premises, if that is what he was, suffered or permitted any such step in that process to be taken. In my view, the following facts are capable of showing that the accused took a step in the manufacturing process. His fingerprints were found on two jars containing Safrole, his fingerprints were found on one of the two glass vessels being used in the manufacturing process and BS was found on his jeans and on his shoes. Also, in my view, the evidence shows that the accused provided the premises on which the manufacturing process was conducted. However, in my view, the Crown cannot rely upon the accused as the occupier of the premises, if that is what he was, suffering or permitting someone else taking any step in the manufacturing process on the premises" (emphasis added). 15 I am of the view that the approach of his Honour reflects a proper application of principle as to "taking part in," as provided by s 6(a) and (c) of the Statute and its import as stated by Gleeson CJ in Regina v Thomas (1993) ACR 308 at 310.

16 Section 6 of the Drug Misuse & Trafficking Act 1985 relevantly states: "For the purposes of this Act and the regulations, a person takes part in the cultivation or supply of a prohibited plant or the manufacture, production or supply of a prohibited drug if: (a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply,

... (c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates". 17 It is to be borne in mind in relation to s 6(c) that his Honour specifically found that the accused "provided the premises on which the manufacturing process was conducted". He ruled that the Crown could not rely upon the accused as the occupier of the premises or "suffering" or "permitting" someone else to take any step in the manufacture.

18 I will say no more than that the words "providing the premises" could be characterised as elusive in terms of their clarity of meaning once any notion of "occupation" or "suffering" is eliminated. For the purposes of the disposition of this appeal, they are not so opaque, in my view, as to render unavailable the evidence constituted, for example, at the very least, by the statement of the accused that the premises were "his", that the accused resided there with his defacto wife and child, and even though there was another person present. Additional evidence is constituted by the keys from the vehicle being driven by the accused and one of them being available to unlock the gates. As to "knowingly" I have set out above what his Honour said: the evidence to which his Honour refers clearly is capable of leading to the finding of knowledge in accordance with the test correctly stated by his Honour to the effect that knowledge in the context of "knowingly take part in" may be established either by proof that the accused knew or was aware of something or alternatively, had a belief, falling short of actual knowledge, or an awareness of the likelihood in the sense of the significant or real chance of something: see R v CWW (1993) 70 A Crim R 517 at 524; R v Greatorex (1994) 74 A Crim R 496 at 498; R v Karl Karam (1995) 83 A Crim R 416 at 423-424.

19 Enveloped by various contentions made in the written submissions (but not spoken to in the course of oral submissions), was the assertion that with respect to the offence of "taking part in" there rests upon the Crown an obligation to exclude beyond reasonable doubt the participation of others by analogy to the principles in relation to "possession" referred to in The Queen v Filippetti (1978) 13 A Crim R 335 at 338. All I am disposed to say on this undeveloped point is that I have great difficulty as a matter of logic and good sense in transposing to the statutory requirement as to "taking part" in by the accused charged with that offence the principles that have evolved in relation to exclusive physical control. Insofar as his Honour ruled that there was no such requirement on the Crown in a case such as this, his Honour was correct.

20 Finally it was submitted that there was no sufficient evidence as to quantity. His Honour said: "Lastly, not less than the commercial quantity for MDMA. It is essential that the evidence show beyond reasonable doubt that the accused intended to manufacture not less than the commercial quantity of 125 grams of MDMA. This is the effect of the decision of the Court of Criminal Appeal in CWW (1993) 70 ACR 517 applied by the Court of Criminal Appeal in Davey CCA 3 March 1995 unreported. The accused's counsel submitted that the evidence does not show that the accused intended to manufacture MDMA not les than the commercial quantity. The Crown Prosecutor submitted that the decision of the Court of Criminal Appeal in CWW does not apply to the manufacture of a prohibited drug but that, if it does, the evidence shows an intention to manufacture not less than the commercial quantity. In my view, the decision of the Court of Criminal Appeal in CWW applies to the manufacture of a prohibited drug in an amount not les than the commercial quantity in the same way that the Court of Criminal Appeal applied it in Davey to the supply of a prohibited drug in an amount not less than the commercial quantity. In my view, the evidence of the total quantity of Safrole found o the premises and in the vehicle being driven by the accused and the evidence of Mr Ballard as to the minimum amount of MDMA capable of being manufactured from the total quantity of Safrole is capable of showing beyond reasonable doubt that the accused's intention was to manufacture an amount of MDMA not less than the commercial quantity. To paraphrase what was said by Sheller JA in CWW , intention may be proved by showing beyond reasonable doubt that the accused had the belief, falling short of actual knowledge, or was aware of the likelihood, in the sense that there was a significant or real chance, that the amount of MDMA likely to be manufactured from the quantity of Safrole was equal to or more than 125 grams". 21 For present purposes, contrary to the submissions for the Crown, CWW to which his Honour referred, in my view, is applicable to this offence: see Sheller JA at 524. Here there was evidence, as his Honour held correctly, to go to the jury on the issue. I add that the alternative count was left to the jury in the event of it not being persuaded beyond reasonable doubt as to this fifth element of the charge in the indictment.

22 The matters to which I have referred are the only matters relevant to the first ground of appeal in the light of the structure of the Crown case. I do not consider his Honour to have been in error either as a matter of principle or in the application of principle as to the evidence as analysed by him.

24 As to the second ground relating to an asserted miscarriage of justice this must also fail. It is inextricably bound up with the structure of the appeal in relation to the first ground. The case was essentially a circumstantial evidence case, properly left to the jury and the subject of proper directions. Upon the whole of the evidence it was open to the jury, in my view, to be satisfied beyond reasonable doubt of the accused's guilt. I note that his Honour said words to the effect in his remarks on sentence that the outcome was no surprise to him. The appeal fails on this basis.

25 The complaint about sentence is that his Honour erred in finding that the appellant was a "principal". His Honour was, as I understand it, in no doubt of it. His Honour's remarks on sentence are clear and well ordered and without error. What his Honour described as the overwhelming case against the appellant led him to the view he formed which was clearly open to him. Indeed, it is very difficult to isolate a basis upon which it could be asserted, as I understand it to have been asserted during the proceedings on sentence, that the appellant was engaged at a "low level," whatever that might mean. Nothing that was said by the High Court in The Queen v Olbrich (1999) 199 CLR 270, where the concern was with the desirability of any notion of hierarchy and the onus and standard of proof on matters of sentence provides a basis for impugning his Honour's approach. As I have said, his Honour was satisfied beyond doubt as to the status of principal which he found the appellant to have enjoyed and I am quite satisfied that there was an abundance of evidence upon which his Honour could do so. To my mind no error has been exposed in his Honour approach to the exercise of his sentencing discretion and the finding led to the imposition of a custodial sentence well within the available range.

26 Accordingly, I would propose the following orders:

1. That the time to institute the appeal be extended to 5 July 2001.

2. That the appeal against conviction be dismissed.

3. That leave to appeal against sentence be granted.

4. The appeal against sentence be dismissed. 27 Howie J: I agree with the orders proposed and reasons given by Levine J.

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