• Criminal Law Consolidation Act 1935 (SA) s 353(1);
• Controlled Substances Act 1984 (SA) ss 4, 12, 32(1)(b);
• Controlled Substances (Prohibited Substances) Regulations 2000 Schedule 1, referred to.
• Barca v The Queen [1975] HCA 42; (1974-1975) 133 CLR 82;
• Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234;
• Thomas v The Queen [1960] HCA 2; (1959-1960) 102 CLR 584;
• Peacock v The Queen [1911] HCA 66; (1911-1912) 13 CLR 619;
• McGreevy v The Director of Public Prosecutions [1973] 1 WLR;
• The Queen v Poulter (1978) 19 SASR 370;
• Reg v Hodge (1838) 2 Lew CC 227;
• Grant v The Queen (1975) ALR 503;
• Reg v Van Beelen (1973) 4 SASR 353;
• R v Chapman (2001) 214 LSJS 319;
• Driscoll v The Queen [1977] HCA 43; (1976-1977) 137 CLR 517;
• Mraz v The Queen [1955] HCA 59; (1954-56) 93 CLR 493;
• Domican v The Queen (1991-1992) 173 CLR 555;
• Festa v The Queen (2001) 76 ALJR 291;
• Ugle v The Queen [2002] HCA 25, considered.

Counsel: MR W RETALIC - Solicitors: MCGEE & ASSOCIATES

Counsel: MR P ROFE QC - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Judgment No. [2002] SASC 255

On Appeal from THE DISTRICT COURT, HIS HONOUR JUDGE LOWRIE

(Court of Criminal Appeal: Nyland, Williams and Gray JJ)

[2002] SASC 255

Court of Criminal Appeal: Nyland, Williams & Gray JJ

1. NYLAND J: I agree for the reasons given by Gray J that this appeal should be allowed and the matter remitted to the District Court for re-trial.

2. WILLIAMS J For the reasons given by Gray J I agree that this appeal should be allowed and the matter remitted for retrial in the District Court.

Darryl Kenneth Chapman the appellant was charged with knowingly taking part in the manufacture of a prohibited substance. The particulars of the offence were that between 1 January 1999 and 1 April 1999 at Renmark the appellant knowingly took part in the manufacture of 3, 4-Methylenedioxyamphetamine ("MDA") or 3, 4-Methylenedioxymethamphetamine ("MDMA"). On 22 January 2002 following a trial in the District Court a jury found the appellant guilty.

On 31 March 1999 detectives attended at a property near Renmark. They found the appellant in a shed. The windows had been boarded over. The appellant was spoken to by police in the doorway. He gave his name and was then asked "What are you doing here?" He replied "Minding my own business." He was asked "Is there a lab in there?" and he answered "I'm just experimenting."

An examination of the shed revealed a chemical laboratory. Flasks, chemicals, glass jars, glassware, rubber gloves and other equipment were set up on a bench. There were a number of books in the shed including a bound photocopy of a publication by Uncle Fester entitled 'Secrets of Methamphetamine Manufacture Fourth Edition Including Recipes for MDA, Ecstasy, and Other Psychedelic Amphetamines'. There were other documents which were said to relate to the manufacture of amphetamines. Six pages of handwritten notes were said to be a log of observations for distillation purposes.

A glass reaction vessel configured for reflux in an oil-filled electric saucepan was seized. The flask held a brown liquid. Subsequent examination of that liquid by a forensic scientist employed at the State Forensic Science Centre, revealed that it contained a mixture of compounds including safrole, isosafrole, formamide and n-formyl 3,4-Methylenedioxyamphetamine, a direct precursor to MDA commonly known as "ecstasy".

Section 32(1)(b) of the Controlled Substances Act 1984 (SA) ("the Act") makes it an offence for a person knowingly to take part in the manufacture or production of a prohibited substance. Both MDA and MDMA are prohibited substances[1].

The Crown case was circumstantial. It was said that the appellant intended to make either MDA or MDMA. However, neither had been produced at the time of the police investigation.

The information alleged both prohibited substances. Each substance is closely related and requires an almost identical manufacturing processes. Counsel for the Crown submitted that as there was no absolute certainty as to which substance was about to be produced, it was necessary to include both as alternatives.

Evidence was given by a Crown expert witness Dr Paul Pigou. He said that the equipment found in the shed was being used to identify the separated components of a mixture from their boiling points at different vacuum pressures. Dr Pigou agreed that the equipment was more than that required to produce MDA or MDMA. The effect of Dr Pigou's analysis was that the most likely outcome of the process was the production of MDA. However, he could not exclude the reasonable possibility that MDMA might have been produced.

The defence case was that the appellant was not intending to manufacture MDA or MDMA.

The appellant was aged 49 at the time of trial. He attended Flinders University and studied chemistry for two years. He did not complete his Bachelor of Science degree as he had begun operating his own business. He operated various businesses including an electronics store, a hi-fi centre and a farm. He also had varied interests which included the study of Australian native plants and the essential oils and essences that can be derived from them. He was a member of the Australian Bush Flower Essence Society. At one stage he considered himself an amateur chemist.

The appellant claimed that during 1997 he took an interest in a series of deaths caused by the use of substances which had been produced from attempts to make ecstasy. He said that he had developed a theory that people attempting to make ecstasy were in fact making a dangerous substance known as PMA. He claimed to have conducted research into this theory. He wrote a paper on this topic. This paper was said to have been published in a university journal in September 1998. The appellant said that the article was written in response to an advertisement placed on the internet which sought information about the manufacture of PMA and overdoses and deaths. The advertisement was said to have been displayed as a general request as part of a research project into PMA. The appellant claimed that he was attempting to validate the theories he expressed in his paper in the shed at Renmark.

The appellant complained that the judge's summing up was deficient in several respects. Complaint was made about the directions concerning circumstantial evidence and reasonable doubt. It was contended that material errors of fact misled the jury. It was further said that the guilty verdict was unsafe and unsatisfactory. Finally, it was complained that the judge should have found that there was no case to answer once it had been established that there was a reasonable possibility that a drug other than MDA or MDMA could have been produced.

When summing up the judge summarised the Crown case:

"The Crown case really was very straightforward. In fact, there was very little issue raised with it. You recall the large amount of police evidence of going to this vineyard block at Renmark and there was this large quantity of obviously extensive equipment and a large base of chemical materials which were seized and all duly indexed, and we eventually had produced to us all of that material, so indexed and indeed resulting in what I call the exhibit showing the various steps and various chemicals which were present there, including the first precursor or the MDP2P which was in the flagon and the yellow beaker and coming down to form the MDA which was present in the flask. But stopping in what may be one possibly two steps short of the production of the drug of ecstasy. I suppose when one would look at that and consider that evidence, one would think 'Well, this man's purpose there must have been to produce ecstasy because of the nature of that laboratory'."

"When you look at the question 'Was Mr Chapman telling the truth?', look at this background, bearing in mind the first thing he said to the police was that he was conducting an experiment, look at the nature of his detailed notes, and the various editions of Uncle Fester's book that he had, and indeed he was proposing to make ecstasy."

Counsel submitted that the judge erred in two respects. MDA had not been produced and the appellant was not proposing to make ecstasy. The complaint was that the jury would understand that the judge was directing them that it was a fact that MDA had been produced intentionally by the appellant. The Crown conceded that the judge was in error in saying that MDA had been produced.

The judge's mistakes of fact were significant. In substance he directed the jury that the appellant had intentionally produced ecstasy. These were material misdirections in regard to critical issues. As earlier observed, the defence case was conducted on the basis that the appellant did not intend to produce MDA or MDMA and that he had not produced either substance.

Circumstantial Evidence And Proof Beyond Reasonable Doubt

In Barca v The Queen[2] the High Court concluded that where a Crown case rests substantially upon circumstantial evidence a jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. The court said:

"To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen[3]; see also Thomas v The Queen[4]. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.' (Peacock v the Queen)[5]. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions[6] that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and commonsense."

A direction concerning rational inferences is an amplification of the direction that the Crown must prove its case beyond reasonable doubt. This was explained by Bray CJ in The Queen v Poulter[7]:

"[The judge] did not, it is true, use the precise words of the time-honoured dictum in Reg v Hodge[8] that the jury must be satisfied 'not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person'. But the High Court has held in Grant v The Queen[9] that a direction in those or similar words does not have to be given in all cases. The direction in question is an amplification of the direction the Crown must prove its case beyond reasonable doubt; see Grant's case[10], per Barwick CJ at p 504, Reg v Van Beelen[11]. There are cases in which the charge to the jury will be inadequate without such a direction, but this is not one of them. There was a specific direction to acquit if the jury thought there was any reasonable possibility of the applicant's innocence."

When summing up in the present case the judge said:

"As was mentioned, this is a circumstantial case. Circumstantial evidence always calls for a great degree of caution. As was put to you, crimes can either be proved by direct evidence, direct evidence is someone who saw the crime, perhaps knew the accused and can give that evidence supporting all ingredients in the crime, very direct evidence. Unfortunately it doesn't operate if the crimes are not committed in that way, so the prosecution are able to put forward a whole lot of other circumstantial facts and say 'Look at all of these facts, the only inference you can draw from this is guilt'. You see in that reason is a cause for concern. It is an inference. Sometimes circumstantial evidence is very strong, e.g. fingerprints, DNA. Other times it is not strong and of little weight at all. But this is a circumstantial case, and what we say to that is that if there is any other explanation to explain that evidence, well clearly it makes that evidence unreliable. It is often called if there is any other hypothesis, rational of innocence, then the circumstantial evidence is of very little weight."

This direction raises a number of concerns. Although it emphasised the weight to be given to circumstantial evidence when the reliability of that evidence was questionable, it did not address the critical issue of whether a reasonable hypothesis consistent with innocence existed. The direction suggested that the jury's consideration was restricted to an evaluation of the weight of the evidence. The judge did not at any time direct the jury that if a reasonable hypothesis consistent with innocence existed then there was a duty to acquit the appellant. The judge's direction left open the possibility that the jury might convict notwithstanding that the circumstances were consistent with a reasonable hypothesis other than the guilt of the appellant.

Other directions did not overcome this inadequacy. To the contrary, the errors of fact identified earlier compounded the inadequacy.

Prior to trial the appellant obtained a stay of proceedings because of the form of the information. That order was overturned by the Court of Criminal Appeal in R v Chapman[12]. On appeal counsel drew attention to a passage in the judgment of Bleby J:

"In this case, there is no doubt that the allegation is that the defendant took part in the manufacture of a prohibited substance. That is one offence only. The only uncertainty is whether the substance would turn out to be MDA or MDMA. At the stage at which the process was interrupted, it was impossible to tell which prohibited substance was being manufactured. The essence of the allegation is that it was one or other, and nothing else.

If the evidence shows that it could only be one or the other, the offence will be proved. If the evidence shows that there is a reasonable possibility that it could be something else, there would obviously be sufficient doubt to justify a verdict of not guilty."

During the course of the trial, Dr Pigou accepted that it was a possibility that the equipment in the shed was being used to make drugs other than those particularised. Counsel for the appellant said that as a result the appellant was entitled to be acquitted as the Crown could not prove which drug could have been produced. It was accepted that the information could have been amended but counsel for the appellant said that as no amendment had been made the convictions should be set aside.

Despite the fact that other substances may have been produced by the appellant there was ample evidence to allow the jury to conclude that he intended to produce MDA or MDMA as alleged. The judge correctly declined to rule that there was no case to answer.

The Crown submitted that no miscarriage of justice had occurred and that the proviso should be applied to uphold the appellant's conviction.[13]

It is necessary to evaluate the prejudice occasioned by the misdirections and the errors of fact. All were prejudicial to the appellant. The errors of fact went to the central issue in the case. There was a risk of a miscarriage of justice in this case.[14]

This appeal must be allowed. The matter is to be remitted for a retrial in the District Court.

LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT

1 By virtue of the combined operation of section 4 and section 12 of the Controlled Substances Act and Schedule 1 of the Controlled Substances (Prohibited Substances) Regulations 2000.

2 [1975] HCA 42; (1974-1975) 133 CLR 82 at 104-105

3 [1963] HCA 44; (1963) 110 CLR 234

4 [1960] HCA 2; (1959-1960) 102 CLR 584 at 605-606

5 [1911] HCA 66; (1911-1912) 13 CLR 619 at 661

6 [1973] 1 WLR 276; [1973] 1 All ER 503

7 (1978) 19 SASR 370 at 374

8 (1838) 2 Lew CC 227 at 228; 168 ER 1136 at 1137

9 [1905] ArgusLawRp 161; (1975) 11 ALR 503

10 [1905] ArgusLawRp 161; (1975) 11 ALR 503

11 (1973) 4 SASR 353 at 374

12 (2001) 214 LSJS 319 at 328 [33]-[34]. The appellant formally argued the ground rejected by the Court in R v Chapman but accepted that this court was bound to reject this ground. This course was said to be necessary to protect the appellant's position with respect to special leave in the High Court.

13 The proviso appears in section 353(1) of the Criminal Law Consolidation Act 1935 (SA) which provides:

"The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

14 Driscoll v The Queen [1977] HCA 43; (1976-1977) 137 CLR 517 at 524-5; Mraz v The Queen [1955] HCA 59; (1954-56) 93 CLR 493 at 514; Domican v The Queen (1991-1992) 173 CLR 555 at 565-567; Festa v The Queen (2001) 76 ALJR 291 at 326; Ugle v The Queen [2002] HCA 25

[1] By virtue of the combined operation of section 4 and section 12 of the Controlled Substances Act 1984 (SA) and Schedule 1 of the Controlled Substances (Prohibited Substances) Regulations 2000.

[2] [1975] HCA 42; (1974-1975) 133 CLR 82 at 104-105

[3] [1963] HCA 44; (1963) 110 CLR 234

[4] [1960] HCA 2; (1959-1960) 102 CLR 584 at 605-606

[5] [1911] HCA 66; (1911-1912) 13 CLR 619 at 661

[6] [1973] 1 WLR 276; [1973] 1 All ER 503

[7] (1978) 19 SASR 370 at 374

[8] (1838) 2 Lew CC 227 at 228; 168 ER 1136 at 1137

[9] [1905] ArgusLawRp 161; (1975) 11 ALR 503

[10] [1905] ArgusLawRp 161; (1975) 11 ALR 503

[11] (1973) 4 SASR 353 at 374

[12] (2001) 214 LSJS 319 at 328 [33]-[34]. The appellant formally argued the ground rejected by the Court in R v Chapman but accepted that this court was bound to reject this ground. This course was said to be necessary to protect the appellant's position with respect to special leave in the High Court.

[13] The proviso appears in section 353(1) of the Criminal Law Consolidation Act 1935 (SA) which provides:

"The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

[14] Driscoll v The Queen [1977] HCA 43; (1976-1977) 137 CLR 517 at 524-5; Mraz v The Queen [1955] HCA 59; (1954-56) 93 CLR 493 at 514; Domican v The Queen (1991-1992) 173 CLR 555 at 565-567; Festa v The Queen (2001) 76 ALJR 291 at 326; Ugle v The Queen [2002] HCA 25