R v Leung; R v Webster - [2022] NSWDC 553 - NSWDC 2022 case summary — Zoe

NSWNSWDC

R v Leung; R v Webster

[2022] NSWDC 553

District Court of NSW|2022-04-29

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At a glance

Source facts

Court

District Court of NSW

Decision date

2022-04-29

Catchwords

CRIME - CRIMINAL TRIAL BY JUDGE ALONE - Indictment containing 8 counts (see [92]) against 2 accused - Charges included manufacture of a commercial quantity of cocaine
knowingly take part in the manufacture (supply precursor)
supply of drugs
(2003) 139 A Crim R 329 R v Kuroz [2020] NSWDC 427 R v Leung

Source

Original judgment source is linked above.

Catchwords

CRIME - CRIMINAL TRIAL BY JUDGE ALONE - Indictment containing 8 counts (see [92]) against 2 accused - Charges included manufacture of a commercial quantity of cocaineknowingly take part in the manufacture (supply precursor)supply of drugs(2003) 139 A Crim R 329 R v Kuroz [2020] NSWDC 427 R v LeungR v Webster (No. 1) [2022] NSWDC 137 R v Ruiz-Avila [2003] NSWCCA 264 R v Sheen [2007] NSWCCA 452019/276599 Publication restriction: Nil.

Judgment (69 paragraphs)

[1]

Judgment Background The Premises Mr Choi The First Accused The Second Accused The Criminal Organisation Search Warrant The Garage Bedroom 1 Bedroom 2 The capsules Plastic container Conclusion regarding bedroom 2 Bedroom 3 Mr Yeom Mr McCormick The container The Liquourland bag The food dehydrator The paper shredder The home office Kitchen area Above the oven Scales Medibank card Plastic container The remainder of the kitchen Laundry The Mercedes-Benz The search of under the stairs and on the lower floor of the Premises Indictment The Crown case - manufacture The Crown case - supply Directions Onus of proof Standard of proof Inferences Actual knowledge Circumstantial case Good character evidence Accuseds' election to not give evidence Elements for counts against the Second Accused Count 1 Consideration - Count 1 Count 4 Consideration - Count 4 Count 5 Consideration - Count 5 Count 6 Consideration - Count 6 Count 7 Consideration - Count 7 Count 8 Consideration - Count 8 Verdict re the Second Accused Elements for counts against the First Accused Count 2 Consideration - Count 2 Count 3 Consideration - Count 3 Count 4 Consideration - Count 4 Count 5 Consideration - Count 5 Count 6 Consideration - Count 6 Count 7 Consideration - Count 7 Verdicts re the First Accused

[3]

The Premises

The allegations arise out of the execution by police of a Criminal Organisation Search Warrant ("COSW") at Unit 22/2-8 Water Street, Birchgrove ("the Premises"). The Premises have been described as a townhouse, and could be described as a modern terrace house. Exhibit 3 contains most of the written or graphic documents relied upon by the Crown. It is divided into a number of sections. Exhibit 3, section A2, contains a sketch plan of the Premises. The townhouse is of two storeys. The upper level is at street level. Unfortunately, the sketch plan has no north point. For ease, I shall assume that the top of the diagram is north and the bottom of it is south. The townhouse is entered from a porch on the southwestern side of the upper level. The main entry door leads directly into an area containing the dining room table.
Immediately on the right of the entry door, as one enters the townhouse is a doorway leading to a laundry. I shall describe the laundry in greater detail later on. However, it should be noted that the laundry has a washing machine and a laundry tub and a workbench. It also contains a toilet and a hand basin, which one would normally find with a toilet in either an en suite or a separate toilet area, the handbasin being clearly for the washing of hands after the use of the toilet.
The second turn to the right after entering the townhouse takes one into the kitchen. The kitchen could be described as U-shaped. The refrigerator is against the southern wall of the kitchen. The stove, with the oven beneath it, is on the eastern wall. On the northern side of the kitchen is a bench containing the kitchen sinks, and behind that is a breakfast bar. On the other side of the breakfast bar is the main living area of the townhouse. Against the western wall of the living area is a staircase leading down to the lower level.
Between the entry to the staircase and the northern wall of the terrace, but against the western wall of the terrace, is an area that could be described as a home office. The diagram shows a desk occupying the area between the northern end of the stairwell and the northern wall of the terrace hard up against the western wall of the terrace and below a window. The northern wall is flanked by two sets of double doors giving access to a balcony.
One descends the stairs from the upper level to the lower level. At the northern end of the lower level is the master bedroom or bedroom 1. It has an en suite bathroom which is entered from the southern wall of the bedroom 1. The staircase leads into what might be described as a passageway. At the northern end of the passageway is the entrance to the master bedroom. At the southern end of the passageway is the entry to bedroom known as bedroom 2. Near the entry to bedroom 2, in a door on the eastern side of the hall or aisle, is the entry to another bedroom known as bedroom 3.
Pertinent to the townhouse is a double garage, access to which is gained by a series of staircases which I understand to lead down the western side of the townhouse. The evidence as to how access is gained to the garage is contained at T13.01 to T13.07.
At all material times, these Premises were rented out. The managing agents were a firm known as Eastside Realty Pty Ltd of Randwick. A copy of the coversheet of two leases is contained in Exhibit 3, section A1. The Premises were let to Hyeon Joon Choi, also known as John Choi ("Mr Choi"), commencing on 17 October 2017 for a period of 12 months expiring on 6 October 2018. Not only was the townhouse let to Mr Choi, but also let with it was a marina known as number 35-22/2-8 Water Street, Birchgrove. The initial rental for the Premises was $4,779.76 payable each calendar month to the managing agent. According to this lease, no more than two persons might ordinary live in the Premises at any one time.
A further lease was granted to Mr Choi for a further six month period commencing on 7 October 2018 and expiring on 6 April 2019. On this occasion, the marina was not part of the tenancy. The rental for the townhouse without the marina was $4,019.35 per calendar month. According to this lease, no more than three persons could ordinary live in the Premises at any one time. The evidence does not disclose that there was any further formal lease granted to Mr Choi. However, the inference to be drawn from the evidence that I have heard is that Mr Choi stayed on as the tenant on a holding over as a monthly tenant. As at 4 September 2019, when the COSW to which I have referred was executed, the managing agent still regarded Mr Choi as the tenant.
At the time of the execution of the COSW, Mr Choi was not at the Premises. According to the First Accused, he was last seen at the Premises on the morning of 3 September 2019, that is, on the previous morning. According to the First Accused she was Mr Choi's "girlfriend". It is common ground that they were living together as a couple, living together in an intimate personal relationship. They shared the master bedroom of the Premises. According to the First Accused they had been living together at the Premises for about a year and a half.

[4]

Mr Choi

The evidence does tell me something about Mr Choi. From Exhibit 25, page 19, one can ascertain that Mr Choi was born in Seoul but had been granted Australian citizenship. As at 4 September 2018, he was 45 years old. According to evidence given by the Officer in Charge, Senior Constable Grogin, commencing at T299.16 until T301.15, Mr Choi was convicted of attempted robbery in company in 1994. He was extradited to Melbourne to face a charge of conspiracy to pervert the course of justice, which charge was laid on 9 July 1999. On 2 September 2003 he was charged with aiding and abetting the importation of a narcotic drug in more than a commercial quantity. That is an offence against the law of the Commonwealth of Australia. It should be noted that under New South Wales law, there is a distinction between a commercial quantity of a prohibited drug and a large commercial quantity of a prohibited drug, but, in the regime under Commonwealth law, the largest known quantity of any prohibited border-controlled substance is a commercial quantity.
According to Senior Constable Grogin's evidence, Mr Choi was found guilty of that offence and was sentenced to imprisonment for 20 years. I do not know when the sentence commenced. I do not know the length of the non-parole period. The Crimes Act 1914 (Cth) provides that if the Court imposes a prison sentence of more than three years, the Court is to impose a non-parole period. I can only conclude that Mr Choi had been released on parole at least by the time he took out the lease on the Birchgrove property commencing on 7 October 2017.
According to other evidence given by Senior Constable Grogin, Mr Choi remained at liberty, despite the interest of the police in dealing with him for what was found at Birchgrove on 4 September 2019, until he was arrested on Friday 8 April 2022, i.e. during the period that this trial was underway. I have been advised that he was arrested at a home unit in Gardener's Road, Mascot, and located with him at the time of his arrest were several kilograms of prohibited drugs and close to $5,000,000 AUD in cash.

[9]

Bedroom 1

I now go to the search of bedroom 1. Quoting what was found in the search I shall largely rely on the agreed facts. Agreed Facts 9 and 10 are these: "9. That, on 4 September 2019 NSW Police located the following items in bedroom 1: 9.1 Australian currency in the following amounts in different locations: 9.1.1 $1370 (XD000133943) 9.1.2 $2000 (XD700070380) 9.1.3 $1400 (XD700070379) 10. The following items: 10.1 Resealable bag containing 0.08g of cocaine (XD700070373) 10.2 Two resealable bags containing 0.14g of cocaine (XD700070374) 10.3 Resealable bag containing 0.17g of cocaine (XD700070375) 10.4 Resealable bag containing traces of cocaine (XD700070377) 10.5 Resealable bag with white powder residue (XD700070378)".
The entry door to bedroom 1 is on the southern side of the room close to the western wall. The entry door swings from right to left to be parallel with the western wall. Along the western wall of the bedroom are built-in wardrobes. As one faces the bed, the left-hand side or north side was occupied by Mr Choi and the right-hand side or southern side was occupied by the First Accused.
The entry to the en suite bathroom is on the southern side of the room, that is, on First Accused's side of the bed. The built-in wardrobe on the north side was used by Mr Choi, and the built-in wardrobe on the south side was used by the First Accused. One can ascertain that from the contents of the wardrobes.
Between the foot of the bed and the entry door was a chest of drawers on which a television was positioned. All the drugs were found in the wardrobe containing the First Accused's clothing. The total of those amounts of cocaine was 0.39 grams of cocaine.
When I reviewed the film in Chambers, it appeared to me that the finding recorded in Agreed Fact 10.1 may have been on Mr Choi's side of the wardrobe. The officer producing the package was on the First Accused's side of the wardrobe, but whence he obtained the package is unclear, that is whether it came from her side or his side. If so, if the packaging came from Mr Choi's side of the wardrobe, then only 0.31 grams of cocaine could be "allocated" to the Second Accused.

[10]

Bedroom 2

I turn now to bedroom 2. Bedroom 2 is shaped roughly like a square box from which the top right-hand corner has been excised. One enters the room from a doorway swinging from right to left from the lower north side of the room. In the higher north side of the room are built-in wardrobes. The head of the bed is against the western wall of the room. The southern side of the bed is closer to the southern wall than the northern side of the bed is to the wardrobes. Towards the east wall was a chest of empty drawers, empty but for a set of gloves, on which stood a television. On the north side of the chest of drawers with the television were receptacles with male clothing in them. On the western side of the room between the north side of the bed and the built-in wardrobes was a tallboy, that is a large chest of drawers.
Agreed Fact 11.1 is this describing an item located in bedroom 2: "A folded piece of paper containing traces of cocaine (XD000133946) and the Accused Webster's right thumb print was identified on the piece of paper, and the Accused Webster could not be excluded as the source of the right index fingerprint located on the piece of paper."
Agreed Fact 11.2 refers to the finding of "a resealable plastic bag containing 0.1 gram of cocaine (XD70070376)". Those items were found in a tin which was placed on the chest of drawers holding the television set, and the tin was behind the television set. Also in the tin was a membership card of a prominent community group with the Second Accused's name embossed into the membership card. The total of cocaine found in the tin was 0.1 grams of that drug.
Agreed Facts 11.3 and 11.4 are these: "11.3 Two resealable plastic bags with 65 capsules containing a total of 8g of 3, 4-methylenedioxymethylamphetamine (MDMA) (XD000133949). 11.4 A round plastic container containing 6.8g of MDMA (XD000133950)".
The two resealable bags with 65 capsules containing 3,4‑methylenedioxymethylamphetamine ("MDMA") were found on the floor next to the bed towards the foot of the bed on its north side. The round plastic container containing 6.8 grams of MDMA was found on the north side of the bed towards the head of the bed. The total of the MDMA found in bedroom 2 was 14.8 grams. Nearby to those substances were found two packets of capsule parts, size 4, a "Cap-M-Quik" size 4 capsule filler in a box, some clear plastic jars with blue screw top plastic lids and a tax invoice.
The tax invoice had been issued by "The Capsule Guy" and bears date 15 August 2019. It is addressed to the Second Accused at an address in Ebbley Street, Bondi Junction. The invoice is for one bag of separated size-4 gelatin capsules, for one Cap-M-Quick filler machine with "tamper 4" (the size), and for 25 plastic jars each capable of holding 125 millilitres, and they were clear. The price of the capsules was $110.00. The price of the filling machine was $57.00, and the cost of the 25 plastic jars was $1.50. Shipping of the items to the Second Accused at the Bondi Junction address was free

[11]

The capsules

One of the many minor disputes in this trial was whether there were 500 capsules, as advocated by Mr Ramrakha of Counsel on behalf of the Second Accused, or 1,000 capsules, as advocated by the Crown Prosecutor. Logic demands that there were only 500 capsules. Capsules come in two parts, an inner part and an outer part. The inner part slips inside the outer part such that the opening to the inner part is in the closed bottom of the outer part. Most Australians know what a capsule containing medication looks like, and how they operate. It is clear from the tax invoice that the inner and outer parts of the capsules were sold separately. One would therefore expect there to be a bag of inner capsules and a bag of outer capsules. That is what the photographs show. Furthermore, for the capsule filling machine to operate efficiently, one would require a separate place in which to insert the inner parts of the capsule and the outer parts of the capsules. It would appear to me to be a complete waste of effort to sell capsules fixed together which then had to be separated by hand before they could be filled. As I said, logic demands that there were two bags, one containing the inner part of the capsules and the other containing the outer part of the capsules, each bag containing 500 items, but there not being in fact 1,000 capsules as the Crown Prosecutor submitted.
The inference is certainly available from where these items were found that the Second Accused had bought the capsules, and the capsule filling machine to fill capsules with MDMA, and that such capsules were in fact found in his room, in fact, 65 filled capsules. The inference can also be drawn that the drug found in the round plastic container was the source of the drug which was being filled into the capsules.
In other places in bedroom 2 were found smaller quantities of empty capsules, perhaps indicating that the purchase made on 15 August 2019 was not a 'one off' purchase that there had been earlier purchase of other capsules.
I should indicate at this stage that the round plastic container containing the 6.8 grams of MDMA was the only container of its type found in these premises.

[13]

Conclusion regarding bedroom 2

I am not persuaded that bedroom 2 was in the Second Accused's exclusive possession or that the room was empty at the time that he commenced to sleep there on 30 July 2019. I have seven reasons to support that conclusion.
Firstly, he had been absent from bedroom 2 for at least six weeks. Secondly, the accommodation which he was given there was only temporary, for about a month, and a little over a month had expired at the time of the execution of the COSW. The third reason is that, within the dwelling, no matter where one went in it, it appeared extremely cluttered. The fourth reason is that the First Accused had many clothes; according to the Crown opening there was female clothing in bedroom 3. The relevant part of the opening which can be found at T2.25 is this: "When the police searched the adjacent bedroom which has been labelled bedroom 3, which the accused, Ms Leung told the police was not occupied by any person, they located female clothing; items for the accused, Ms Leung's business." That is hardly a slip. It is quite possible that the First Accused placed a rack of her clothing in bedroom 2 during the Second Accused's absence overseas. As the Second Accused was being accommodated after 30 July 2019 on a 'friendship basis only', he might not be able to complain about the rack of female clothing in bedroom 2, or in good conscience be able to ask the First Accused to move the rack elsewhere. The fifth reason is that there is no evidence that the Second Accused wore female clothing, or as it was bluntly put by his own counsel, that he engaged in "cross-dressing". Many photographs of him were put into evidence at both the trial and on the voir dire, images downloaded from the Second Accused's own phone, but none of them was of the Second Accused wearing any female attire. The sixth reason is that, to the contrary, the images in evidence suggest that his sexuality focused on a completely different subject, bluntly 'S and M' or 'bondage' (see Exhibit 35).
My final reason is that there was also found in bedroom 2 large plastic tubs, one containing an extremely large supply of paper towelling and another containing a supply of shopping bags, bags which had been provided when other items had been purchased. It is unlikely that they had been acquired by the Second Accused between 30 July and 4 September 2019. It is more likely that they were deposited there during his absence overseas. The paper towelling may have been something to do with the First Accused's "Pawfect Pooches" business, items relating to which were also found in bedroom 3.
The red jerry can, as I have mentioned, was a 5-litre capacity. The evidence discloses that Mr Choi bought a 10-litre capacity red jerry can on 24 April 2019 at Bunnings at Ashfield (see Exhibit 29). The receipt was found amongst Mr Choi's records in the home office area (T293-T294). This 10-litre jerry can was found later in the search in the laundry, empty. Whether it had ever been used the evidence does not disclose. The point I am seeking to make is that Mr Choi was the source of red jerry cans, and the purpose for which the 10-litre can was purchased is completely unknown.
The argument advanced by the Crown is that in addition to buying capsules and the capsule filling machine on 15 August 2019, the Second Accused purchased the 25 x 120 millilitre clear plastic jars with blue screw top lids, a number of which were found near the capsules and the capsule filling machine. The tax invoice (Exhibit 3, item D11) says that the Second Accused bought 25 of these plastic jars, as I already mentioned, for the princely sum of $1.50. They are obviously very cheap items. To me they appear like specimen jars used in the collection of urine samples by medical practitioners, and also used for collecting other specimens to be submitted for pathological testing.
The Crown submitted that if one freezes the film of the search, one can count about 14 remaining plastic jars. The best that I could make of the video when frozen was about 10, but the quality of the vision is extremely poor. It was submitted that the plastic jars were for the sale of small quantities of GBL to be drawn from the 5-litre jerry can, and as there were no longer 25 plastic jars the Second Accused must have already used those no longer found in order to sell GBL. With the utmost respect, this is nothing other than pure speculation.
If the capsules were purchased in order to be filled with MDMA in order that the MDMA be encapsulated for trafficking, then might not the jars be used to sell larger amounts of MDMA? Exhibit 15 are the admitted parts of a statement made by Senior Constable Grogin, misdated 28 March 2021, but probably supposed to be dated 28 March 2022; however, even that is problematical. This was dealt with on the voir dire, however certain items of the statement were not objected to. Paragraph [15] of the statement refers to the prices for MDMA and par [17] relates to the prices for GBL. They are these: "15. The price for a 'street deal' or 'cap' [of MDMA] varies between $20-$30. When purchased in bulk, the price for an ounce (28 grams) of [MDMA] is $2,500-$4,000. The price for a kilogram of [MDMA] is $35,000-$40,000. … 17. The price for a 'street deal' (1mL) of [GBL] varies between $6-$8. When purchased in bulk, the price for 100 mL of [GBL] varies between $650-$700. The price for one litre of [GBL] varies between $2,000-$3,000." A street deal of GBL is only 1 millilitre. The capacity of the plastic jars is 120 millilitres, which could be used for selling amounts of 100 millilitres of GBL. However, there was no measuring device found with the jerry can, nor with the plastic jars, which would have enabled the Second Accused to do the necessary measuring. There was no equipment found in bedroom 2 which would have allowed the Second Accused to decant small amounts of liquid from the jerry can, for example a small funnel or set of funnels. On the other hand, there was nothing found in bedroom 2 which would have enabled the Second Accused to weigh out, for example, an ounce, or 28 grams, of MDMA, but multiple small sets of scales were found elsewhere in the Premises.
A further observation must be made about the plastic jars. They could have been used for a large number of purposes, many of which would have been wholly legitimate. The presence of the plastic jars cannot be used in the way the Crown indicates as proof on the criminal standard to link the Second Accused to the GBL.
Agreed Fact 11.5 refers to two plastic bags containing 22.1 grams and 0.3 grams of cannabis (XD000133948 and XD000133947). These were found on top of the 'tallboy' together with items commonly found with cannabis, for example a mixing bowl or a bowl which could be used to prepare the cannabis for smoking and cigarette papers. The cannabis is not the subject of any charge currently before me but may be a backup charge.
Agreed Fact 11.7 refers to the finding in the 'tallboy' of Australian currency amounting to $470. This is an amount which any adult in our community could have in his or her possession or carry at any one time. Of itself, it has no probative value whatsoever.

[14]

Bedroom 3

I turn now to the search of bedroom 3. This room had not been allocated to any particular person as a place of sleep. It appears to be common ground that it was used as a storage space. According to the Agreed Facts, the following was found in this room: "12.1 A black cooler bag. The interior of black cooler bag was swabbed and the examination of the swab revealed cocaine. The bag contained: 12.1.1 A square container containing 3 plastic bags (XD000120846) containing: 12.1.1.1 27.37g methylamphetamine. 12.1.1.2 27.87g MDMA 12.1.1.3 27.75g MDMA DNA recovered from a trace swab of the knots in the three plastics bags is a mixture that originates from at least two individuals. An unknown female (not the Accused Leung) and Luke Yeom cannot be excluded as contributors to this mixture. 12.1.2 A square plastic container containing 554g of crystallised MDMA (XD000120847). A DNA swab of the clasps and under the lip of the lid of the container recovered DNA from at least three individuals. Paul McCormick cannot be excluded as the majority contributor to this mixture. The DNA from the minor contributors is not suitable for comparison due to the lower level and complexity. 12.1.3 A container containing 443.7g of crystallised MDMA (XD000120848). Four fingerprints on the container were identified as the right middle fingerprint of the Accused Webster. Two other fingerprints on this container could not be identified. 12.1.4 A red Liquorland environmental bag (X0003584251) containing a resealable plastic bag containing 339.8g of crystallised MDMA (XD000120845). DNA recovered from a tape lift of the handles of the red environmental bag is a mixture that originates from at least three individuals. The Accused Leung and Hyeon Joon Choi cannot be excluded as contributors to this mixture. The DNA from the additional contributor(s) is not suitable for comparison due to the low level. 12.1.5 A doorbell box in which there were seven plastic packets and four resealable bags of cocaine weighing a total of 209.23. 12.2 A glass dish with white powder residue (X000817750). 12.3 A box containing $27,550 in Australian currency 12.4 A Sunbeam food dehydrator with three sheets of baking paper with white powder residue (X000817753). Four fingerprints were located on the dehydrator. One on the side of the dehydrator was identified as the left index fingerprint of the Accused Leung. One on the right edge of the door of the dehydrator was identified as the right thumb print of the Accused Leung. The other two fingerprints were not identified. 12.5 A paper shredder. A swab from the opening and blade area of the paper shredder was taken and identified cocaine, and indicated the presence of methylbenzoate, ecgonine methyl ester and anhydroecgonine methyl ester. A fingerprint on the exterior side of the paper shredder was identified as the Accused Webster's right index fingerprint. (X0003584286)" I make the following comments on matters raised in those Agreed Facts.

[22]

Kitchen area

I turn now to the search of the kitchen area: "14.1 In a cupboard above the oven the following items: 14.1.1 A plastic container containing 85.5g of cocaine (XD000120856). One fingerprint on the exterior surface of the plastic container was identified as the Accused Webster's right palm print. The Accused Webster was unable to be identified or excluded as the source of two other fingerprints on the exterior surface of container. The edge of the lid of the container was swabbed for DNA. The DNA recovered is a mixture that originates from at least two individuals. The major contributor has the same DNA profile as the Accused Webster. The minor contrinutor(s) is not suitable for comparison due to the low level. 14.1.2 A plastic container containing 12.8g of cocaine (XD000120854). 14.1.3 A plastic container containing 155.5g of cocaine (XD000120857). One fingerprint on the exterior lid of the plastic container was identified as the Accused Webster's left palm print. The Accused Webster was unable to be identified or excluded as the source of another fingerprint on the exterior surface of the container. 14.1.4 A plastic container containing 56.3g of cocaine (XD000120855). One fingerprint on the exterior surface of the plastic container was identified as the Accused Webster's left thumb print. The Accused Webster was unable to be identified or excluded as the source of two other fingerprints on the exterior surface of container. 14.1.5 A plastic container containing 424.5g of lidocaine (XD000120855). A fingerprint on the exterior of the container was identified as Hyeon Joon Choi's left middle fingerprint. 14.2 In a kitchen drawer two sets of scales were located (X0003584266) being a Tania brand scaled and a Tuff-Stuff brand scales. The buttons of Tanita brand scales were swabbed for DNA and the DNA recovered has the same DNA profile as Hyeon Joon Choi. The weighing pan of the Tanita scales was swabbed and the analysis of the swab identified cocaine. The weighing pan of the Tuff-Stuff scales was swabbed and the analysis identified cocaine, MDMA, methylamphetamine, and indicated the presence of methyl benzoate, ecgonine methyl ester, and anhydroecgonine methyl ester. 14.3 A casserole dish. Inside the dish was a Medibank card in name of Hyeon Joon Choi, two spoons, a metal sieve and a paint brush. A scraping of the dish and the items in it collected 0.34g of powder containing cocaine (A028). 14.1 A plastic container. The container also held two plastic scrappers, two plastic nozzles and a paint brush. A scraping of the container and the items it held collected 0.38g of a compressed substance containing cocaine (A029)." I make the following comments on those agreed facts.

[28]

Laundry

I turn now to the laundry. The Agreed Facts contain this: "15. That, on 4 September 2019 NSW Police located the following items in a laundry / bathroom of the Birchgrove premises: 15.1 A blue cooler bag (X0003584273). The interior of the cooler bag was swabbed and the swab identified cocaine, and indicated the presence of ecgonine methyl ester, methyl benzoate, lidocaine, and anhydroecgonine methyl ester. The blue cooler bag contained: 15.1.1 Two bags containing 57g and 80.4g of cocaine and one bag containing 41.4g of lidocaine (XD000120859). 15.1.2 A bag containing 683.0g of methylamphetamine (XD000120860). 15.1.3 A green bag containing two bags containing a total 2.08g of heroin and 0.28g heroin (XD000125410). 15.1.4 A block of 175.4g of heroin (XD000125409). 15.1.5 Two orange bags containing 49.6g of cocaine (XD000161561). 15.2 A 'Bissell' box (X0003584281) which containing the following: 15.2.1 A black cooler bag (X0003584277) was located. A tape lift was taken of the handles of the bag. The DNA recovered from the tape lift was a mixture from at least three individuals. The major contributor to this mixture has the same profile as Hyeon Joon Choi. The minor contributors were not suitable for comparison due to the low level. A swab taken of the interior of this bag contained cocaine, and indicated the presence of ecgonine methyl ester, lidocaine, cinnomoylcocaine, and anhydroecnine methyl ester. The black cooler bag contained the following: 15.2.1.1 A plastic container (X0003584274) was examined for fingerprints and the Accused Leung's left little fingerprint could not be identified or excluded as the source of a latent fingerprint on the side of the container. The container held two further plastic contains inside: 15.2.1.1.1 A plastic container containing 35.6g of Methylamphetamine (XD000125408). The container was swabbed for DNA and DNA recovered was a mixture from at least three individuals. The DNA of Hyeon Joon Choi and Paul McCormick cannot be excluded as contributors to this mixture. Hyeon Joon Choi's right middle fingerprint was also identified on the exterior of the container. 15.2.1.1.2 A plastic container containing 9.26g of MDMA (XD000125407). The container was swabbed for DNA. The DNA recovered was a mixture from at least three individuals. The DNA of Hyeon Joon Choi cannot be excluded as the major contributor and Paul McCormick cannot be excluded as the minor contributor to this mixture. 15.2.1.2 A plastic container (X0003584275). A fingerprint on exterior of the large rectangular clip lock container was identified as the left little fingerprint of the Accused Leung. The Accused Leung was unable to be identified or excluded as the source of another fingerprint on the container. This plastic container held two further plastic containers: 15.2.1.2.1 A plastic container containing 15.9g of cocaine (XD000125406). 15.2.1.2.2 A plastic container containing 39.5g of methylamphetamine (XD000125405). 15.2.1.3 A plastic container (X0003584276). A fingerprint on the exterior of the container was identified as the left middle fingerprint of the Accused Leung. This plastic container held two further plastic containers: 15.2.1.3.1 A plastic container containing 34.2g of cocaine (XD000125404). The container was examined for DNA and the DNA recovered was a mixture from at least three individuals. The DNA of Hyeon Joon Choi and Paul McCormick cannot be excluded as a contributor to this mixture. 15.2.1.3.2 A plastic container containing 58.5g of heroin (XD000125403). The container was swabbed for DNA and the DNA recovered was a mixture from at least three individuals. Hyeon Joon Choi's DNA cannot be excluded as a contributor to this mixture. The DNA from the additional contributor(s) is not suitable for comparison due to low level. 15.2.1.4 A plastic container containing 64.2g of cocaine (XD000125402). 15.3 A stack of four plastic buckets with one of the buckets containing 1.22 grams of a compressed substance which contained cocaine (A024/XD000125401). 15.4 A gas camping stove (X0003584278). 15.5 Two rubber gloves (X0003584280). The interior of the rubber gloves were swabbed for DNA and a partial DNA was recovered. The partial DNA profile has the same DNA profile as the Accused Leung. A finger of the gloves was examined by a drug analyst (Paul) and no prohibited substance was detected on it. 15.6 A 'Smart Link' storage box (A003) containing: 15.6.1 'Scott' profile half face APR respirator mask with filters (A004). The inside of the half face respirator was swabbed for DNA. The DNA recovered has the same DNA profile as the Accused Cameron Webster. The filter in the respirator was examined and no prohibited drug was detected. 15.6.2 'Protector' goggles (A005). A tapelift of the interior strap of the safety googles was examined for DNA. The DNA recovered had the same DNA profile as the Accused Cameron Webster. A swab was taken from the exterior of the googles and no prohibited drug was detected. 15.6.3 Three black plastic funnels (A006). A swab of the top funnel contained cocaine. 15.6.4 A shopping bag containing a PVC pipe end cap and a sealed foodsaver bag containing a grey coloured grinding wheel (A007). The grinding wheel was examined and cocaine and levamisole was detected. 15.5.5 An open box of unused filter papers (A008). 15.5.6 Plastic bag knotted shut containing shredded paper (A009). The paper tested positive for cocaine. 15.5.7 Three plastic colanders (A010) with the top colander containing used paper filters. The substance on three of the filters was examined. Filter 1 contained 0.50g of powder containing cocaine. Filter 3 contained 1.55g of powder containing cocaine. Filter 7 contained 3.75g of powder which contained an estimated 1% cocaine. 15.6 A plastic storage container containing 2-propanol (isopropanol) with a gross weight 13,953g (A011). 15.7 A plastic storage container containing 2-propanol (isopropanol) (A012) with a gross weight of 3,398g. 15.8 A plastic storage container containing 2-propanol (isopropanol) (A013) with a gross weight of 11,330g. 15.9 A plastic storage container containing a small amount of sludgy dark grey liquid containing cocaine and indicated to contain iso-propanol (A014) 15.10 A Isoproponal plastic storage container containing a liquid containing less than 1% cocaine and indicated to contain isopropanol (A015) with a gross weight of 1,197g. 15.11 A hot plate with residue containing cocaine (A016). 15.12 A 20L pail with lid containing a liquid, with a gross weight of 9,627g. The liquid contained less than 1% cocaine and indicated the presence of isopropanol. (A017) 15.13 A 20L pail with lid containing a small amount of liquid and two plastic bags each containing moist shredded printer paper (A018). The liquid contained cocaine and indicated to contain isopropanol. The paper in both bags contained cocaine. 15.14 A 20L pail with lid containing a small amount of wet black solid and shreds of printed paper. A sample of the solid and paper contained cocaine. Iso-propanol was also indicated. (A019) 15.15 A 20L pail with lid (A020). 15.16 A 20L pail with lid (A021) with dark grey staining and shreds of moist printed paper. No prohibited substance was detected on a swab taken of this item, 15.17 A 20L pail with lid containing moist printed paper with text with a small amount of black solid (A022). The gross weight of the item was 934g. A sample of the paper and solid was found to contain cocaine. 15.18 A 20L pail with lid containing two moist mesh bags and numerous tied off mesh stockings containing a black solid. A piece of the mesh fabric containing the black solid contained cocaine and was indicated to contain activated charcoal. (A023) 15.19 A large metal paint stirrer (A025) with shredded printed paper attached. No prohibited substance was detected on a swab of this item. 15.20 A boiler and tubing attached to a condenser containing foil and a digital thermometer (A026). A swab taken from the inside of the boiler contained cocaine. A wash taken from inside the condenser contained cocaine. A fingerprint and a palm print on the exterior of the boiler were identified as the Accused Webster's left ring fingerprint and left palm print. 15.21 A hydraulic press (A027). A swab taken from the press stage of the hydraulic press contained cocaine. No prohibited substance was detected on a swab of the press ram. A swab taken form the unwrapped star plate identified cocaine and lidocaine. 16. A swab taken from the wall behind the hydraulic press identified no prohibited substance. 17. A swab taken from the roof above the hydraulic press identified no prohibited substance. 18. A swab taken from the inside of the door identified no prohibited substance. 19. A swab taken from the exhaust fan in the room contained cocaine."
I must make a number of comments on what was found. When first entered, most of the contents described in the Agreed Facts were packed up behind the entry door to the laundry. That door, as one enters the laundry, swings from right to left. The entry is in the western wall in the northwest corner of the wall. The northwest wall of the laundry is not straight. At its western end, it protrudes into the area which would otherwise be part of the kitchen. This protrusion is to allow entry into the laundry. There is some storage space in this protrusion, that is, the area behind the door when the door is shut. There was a further stacking, piling, or accumulation, of material along the northern wall of the laundry.
On the southern wall of the laundry are, from west to east, a toilet with a cistern above it, a wash basin for washing hands after using the toilet, a small window, and then the laundry tub. That tub is in a unit along the east wall of the laundry. From south to north, the east wall of the laundry is the laundry tub, a workbench area, and, at ground level rising to the benchtop, a front-loading washing machine. In front of the washing machine was a confined area allowing one access to the washing machine, including an area in which to place a washing basket. But there was then the end of the stack of the materials that were found in the laundry, that is, the eastern end of the stack of material.
Necessarily, the police search required the police to pull apart the piled-up material. At least one section of the piled-up items was covered by some type of fabric.
The Agreed Facts describe what is found. Agreed Fact 5.1 is photographed in Exhibit 3, section H3, p 1. Agreed Fact 5.1.1 is photographed in Exhibit 3, section H3, pp 4 and 5. Agreed Fact 5.1.2 is photographed in Exhibit 3, section H3, pp 2 and 3. Agreed Fact 15.1.3 is photographed in Exhibit 3, section H3, pp 6 and 7. Agreed Fact 15.1.4, is photographed in Exhibit 3, section H3, pp 8, 9 and 10. For Agreed Fact 15.1.5, I have been unable to find a photograph of this item. Agreed Fact 15.2, the 'Bissell Box', is photographed in Exhibit 3, section H4, pp 11, 12 and 13. Agreed Fact 15.2.1, referring to a black cooler bag, is photographed in Exhibit 3, section H4, p 14. Agreed Fact 15.2.1.1, referring to a large rectangular clip lock box, is photographed in Exhibit 3, section H4, pp 15, 16 and 17. Agreed Fact 15.2.1.1.1, referring to a smaller square rectangular clip lock box found within the larger rectangular clip lock box, is photographed in Exhibit 3, section H4, pp 18 and 19.
Agreed Fact 15.2.1.1.2, referring to a second smaller square clip lock box contained within the larger rectangular clip lock box, is photographed in Exhibit 3, section H4, p 20. Agreed Fact 15.2.1.2, referring to a large rectangular clip lock box, is photographed in Exhibit 3, section H4, pp 21 to 25. Agreed Fact 15.2.1.2.1, referring to a smaller square clip lock box found within the preceding large rectangular clip lock box, is photographed in Exhibit 3, section H4, p 27. Agreed Fact 15.2.1.2.2, referring to a second smaller square clip lock box found within the second larger rectangular clip lock box, is photographed in Exhibit 3, section H4, p 26. Agreed Fact 15.2.1.3, referring to a third large rectangular clip lock box, is photographed in Exhibit 3, section H4, pp 28, 29 and 30. Agreed Fact 15.2.1.3.1, refers to a smaller square clip lock box contained within the third large rectangular clip lock box, is photographed in Exhibit 3, section H4, pp 32, 33. Agreed Fact 15.2.1.3.2, referring to a second smaller square clip lock box contained within the large rectangular clip lock box, is photographed in Exhibit 3, section H4, p 31. Agreed Fact 15.2.1.4, referring to a small square clip lock box, is photographed in Exhibit 3, section H4, pp 34 and 35.
I have thus far in this section identified seven small square clip lock boxes. Three of the small square clip lock boxes, one found in each of two larger rectangular clip lock boxes, and the third being the last small square clip lock box, I just identified, had labels on them. The three labels are "Skincare", "Scampi", and "Squid". Those labels indicate that prior to being used for the storage of drugs, they were being used for innocent domestic uses, storage of skincare products, and storage of food items. These labels are best seen in Exhibit 31.
Agreed Fact 15.3, is photographed in Exhibit 3, section H4, p 36. Agreed Fact 15.4, referring to the "Campmaster" brand stove, is photographed in Exhibit 3, section H4, p 39. This may be the subject of Exhibit 22 (I emphasise "may" as this is uncertain). There was a receipt found in a bag of documents related to "Pawfect Pooches" for the purchase of a stove and a set of four cartridges, showing same bought at Big W at Top Ryde on 11 May 2019. The finding of that receipt in that bag may be pure coincidence.
Agreed Fact 15.5, referring to gloves commonly used in a household if washing up is done by hand or when cleaning, is photographed in Exhibit 3, section H8, p 40. The gloves were found in the laundry where washing agents and implements and aids are commonly found. Both the laundry tub, the laundry workbench, the toilet, and the hand basin, would need cleaning from time to time. It is unsurprising that the First Accused's DNA might be found in a pair of such gloves. It is of greater moment that no prohibited substance was detected thereon. As a piece of circumstantial evidence, it has no utility whatever.
Agreed Facts 15.6.1 and 15.6.2 refer respectively to a respirator mask and goggles each containing the Second Accused's DNA. The Crown stresses the significance of these finds. A photograph of the respirator which has been labelled by the chemical operations group as 040919BIRA004 can be seen in a photograph in Exhibit 3, section H11, p 43. A photograph of the goggles, given chemical operations label 040919BIRA005, can be found in Exhibit 3, section H11, p 44. These items appear to me to be new. They so appeared to Dr Coghlan, the expert called in the Crown case (see his evidence at T84.14 to T84.20). As that piece of oral evidence shows no prohibited substances were detected on or in either item. In re-examination Dr Coghlan gave this evidence: "Q. You've been asked a question about the fact that no prohibited drug is detected on the outside of the goggles. If the goggles had been cleaned, would you expect prohibited drugs to be detected? A. If they had been cleaned, no, we wouldn't detect the drugs. HIS HONOUR Q. It'd depend on how rigorous the cleaning was, wouldn't it? A. It depends....if the cocaine was in the hydrochloride form, just by rinsing thoroughly in water would remove all traces of the cocaine. It's very soluble in water." The problem with that evidence is that cocaine has two types, cocaine base and cocaine hydrochloride: see T84.22. No testing was done on any of the cocaine to determine what type it might have been. Does cocaine base easily wash off or wash out of the filter? The evidence is completely silent. For all anyone knows, the Second Accused may have come across those items lying around somewhere in the townhouse and tried them on out of curiosity. There is no direct evidence that the Second Accused used them in the process of manufacturing cocaine. This is just another piece of circumstantial evidence.
Agreed Fact 15.6.3 is photographed at Exhibit 3, section H11, p 45. Agreed Fact 15.6.4 is photographed at Exhibit 3, section H11, pp 46 and 47. Agreed Fact 15.6.5, photographed at Exhibit 3 section H11 p 48. Agreed Fact 15.6.6 is photographed at Exhibit 3 section H11 p 49. Agreed Fact 15.6.7 is photographed at Exhibit 3, section H11 pp 50 and 51.
Agreed Facts 15.6.8 to 15.6.10 refer to large 20-litre containers, square in shape, each described as being partially filled with isopropanol, also known as isopropyl alcohol.
Agreed Fact 15.11 is photographed at Exhibit 3, section H11, p 57. Agreed Fact 15.12 is photographed at Exhibit 3, section H11, pp 59, 60 and 61. Agreed Fact 15.14 is photographed at Exhibit 3, section H11, pp 62 and 63. Agreed Fact 15.5 is photographed at Exhibit 3, section H11, p 64. Agreed Fact 15.6 is photographed at Exhibit 3, section H11, p 65. Agreed Fact 15.7 is photographed at Exhibit 3, section H11, p 66. Agreed Fact 15.18 is photographed at Exhibit 3, section H11, pp 67, 68 and 69. Agreed Fact 15.19 is photographed at Exhibit 3, section H11, p 71. Agreed Fact 15.20 is photographed at Exhibit 3, section H11, pp 72 to 79.
The fingerprint and palm print of the Second Accused disclose that he has handled the still part of the boiler, that is, the bottom part, not the part with the brass condenser on the middle. At some stage after the Second Accused handled it, it had been placed in the box shown in photograph 72, from which it was extracted during the search. The handling could have been as late as placing the still in the box.
Agreed Fact 15.21 is photographed at Exhibit 3, section H11, p 80 and 81. Agreed Fact 16, referring to the area swabbed behind the hydraulic press, is photographed at Exhibit 3, section H12, p 82. Agreed Fact 17 refers to the swabbed area of the ceiling above the hydraulic press, photographed in Exhibit 3, section H12, p 84.
Agreed Fact 18, referring to the area swabbed on the back of the door into the laundry, is photographed at Exhibit 3, section H12, p 83 (assuming that the door was shut during the extraction of the drug in the laundry).
Agreed Fact 19 is photographed at Exhibit 13, section H12, p 85, showing where the ceiling fan was and/or the area swabbed. The ceiling fan appears to me to be about two-thirds of the ceiling from the door, and therefore one-third of the ceiling from the eastern or laundry tub wall.

[30]

The search of under the stairs and on the lower floor of the Premises

The Agreed Facts do not describe the search of the area under the stairs, nor the area on the lower floor of the townhouse. The police found no items of interest to them, and nothing was seized from that space. They did, however, appear from the film of the search to find many boxes of shoes and packaging from shopping. In submissions, Madam Crown said this: "[Leung] had extensive personal property. As seen in [video clip] C13, she had not less than 16 designer handbags, Chanel, Louis Vuitton, to name a couple. As one of the officers comment in the execution of the search warrant, $100,000 worth of property. Also seen-- HIS HONOUR: How do we know that they are designer handbags? It is very common for these items to be the subject of replication by the unscrupulous, especially in various parts of Asia and, no doubt, because of her role as a cabin crew member for Qantas, she was travelling extensively throughout the world and in an easy position to pick up a replica of this, that and the other thing at any part of the world. I mean, I've got no hard evidence other than a few boxes to say that these are really designer handbags rather than relatively cheap replicas. CROWN PROSECUTOR: Yes. HIS HONOUR: And the same can apply to the shoes. CROWN PROSECUTOR: I'll say this about them, the fact - the bags - there were boxes that are consistent with them being legitimate designer items. There were also shopping bags from the same designers found. When you buy a fake, you don't get that kind of stuff. HIS HONOUR: I don't know. I don't buy handbags and shoes. CROWN PROSECUTOR: Without giving evidence from the bar table, I won't say more than that, your Honour, but they have all the accoutrements of being legitimate. There were also mountains of clothes, and as your Honour may have noticed, when they were being gone through by the police, a lot of them had tags still on them and as-- HIS HONOUR: Some ladies have a real propensity for acquiring clothing and shoes and, et cetera, and if you're travelling the world and pick up things cheaply or if you're in London when it's sale time or San Francisco when it's sale time, whatever, you might be able to make a few killings. CROWN PROSECUTOR: True, but the sheer volume-- HIS HONOUR: It isn't necessarily consistent with having some illegitimate source of income. CROWN PROSECUTOR: The Crown would say the sheer volume of it, the nature of the items, the fact that they are seen with the boxes and accoutrements, the bags, the shopping bags that are supplied by legitimate operators, would tend to suggest that these a high-end market items. One also had to keep in mind that she was cabin crew. HIS HONOUR: The? CROWN PROSECUTOR: She was - her only form of legitimate employment was cabin crew, not consistent with the volume of items that were seized. After all there were at least - there were boxes and boxes and boxes of designer shoes, Ferragamo, Dior, Chanel, Mooie Mooie, Prada, which appear never to have been worn. They still had the sticks that hold them in shape. They were still wrapped in the complete packaging. The Crown would say that this is evidence that might suggest that she benefited from what was going on and therefore, permitted to occur." In an aide memoir, MFI-17, Mr Boe and his Junior asked me to ignore, what they submitted was, evidence from the Bar Table. I do so. Further, the NSW Police Officer's comment recorded in the video of the search is an opinion which he was not entitled to make and I disregard it. Without a proper valuation, and without certification of originality, I can place no real significance on the value of shoes and handbags.

[31]

Indictment

I believe, at this stage, that I should turn to the indictment. The indictment is in the following terms: The accused have been arraigned on an indictment containing eight counts. That indictment is this: 1. between 5 April 2018 and 5 September 2019, at Birchgrove in the State of New South Wales, the Second Accused manufactured an amount of a prohibited drug, namely cocaine, which was not less than the commercial quantity of that prohibited drug; 2. between 5 April 2018 and 5 September 2019, at Birchgrove in the State of New South Wales, the First Accused knowingly took part in the manufacture of an amount of a prohibited drug, namely cocaine, which was not less than the commercial quantity of that prohibited drug; 3. In the alternative to Count 2, between 5 April 2018 and 5 September 2019, at Birchgrove in the State of New South Wales, the First Accused, believing that a serious indictable offence had been committed, namely, the manufacture of an amount of a prohibited drug, namely, cocaine which was not less than the commercial quantity applicable, and believing that she had information that might be of material assistance in securing the apprehension, prosecution or conviction of the offender for that offence, failed without reasonable excuse to bring that information to the attention of a member of the NSW Police Force; 4. on 4 September 2019, in Birchgrove in the State of New South Wales, the First Accused and the Second Accused did supply an amount of a prohibited drug, namely, cocaine being an amount which was not less than the commercial quantity applicable to that prohibited drug; 5. on 4 September 2019, at Birchgrove in the State of New South Wales, the First Accused and the Second Accused did supply an amount of a prohibited drug, namely, MDMA being an amount which was not less than the large commercial quantity applicable to that prohibited drug; 6. on 4 September 2019, at Birchgrove in the State of New South Wales, the First Accused and the Second Accused did supply an amount of a prohibited drug, namely, methylamphetamine being an amount which was not less than the large commercial quantity applicable to that prohibited drug; 7. on 4 September 2019, at Birchgrove in the State of New South Wales, the First Accused and the Second Accused did supply an amount of a prohibited drug, namely, Heroin, being an amount which was not less than the traffickable quantity applicable to that prohibited drug; and 8. on 4 September 2019, at Birchgrove in the State of New South Wales, the Second Accused did supply of amount of a prohibited drug, namely, GBL being an amount which was not less than the commercial quantity applicable to that prohibited drug.

[32]

The Crown case - manufacture

The Crown case is framed around an allegation that between 30 July 2019 and 4 September 2019 as far as the Second Accused is concerned, or between 5 April 2018 and 4 September 2019 as far as the First Accused is concerned, the manufacture of cocaine at these Premises was conducted.
Manufacture is defined in s 3 of the Drug Misuse and Trafficking Act 1985 to include the process of extracting or refining the drug in question. The process relied upon by the Crown has been described by Dr Coghlan in his evidence. The process has a number of steps: 1. paper impregnated with cocaine was imported into Australia. Other substances commonly found impregnated in that fashion are towels, nappies, and clothing, however none of those other methods were used at the Premises; 2. the paper was then shredded using the paper shredding machine found in bedroom 3. There were remains of paper which had been impregnated with cocaine found within that shredding machine; 3. the shredded paper was then steeped in the isopropanol, which was used to draw out the cocaine from the paper. The process could last for hours. The pails, or buckets, were used for steeping the shredded paper in the isopropanol; 4. the still was then connected to a power source so it could be turned on. On top of the still is a condenser, a brass metal object on the lid, and that needed to be connected firstly to a water source, and secondly to an outflow. In other words, water was to be drawn from a tap and drained off into a sink. The still was then turned on and the isopropanol was driven off. According to Dr Coghlan, a cutting agent would then be employed. I assume that once the isopropanol was driven off, the residual material would have been cocaine, perhaps in some liquid or not completely solid state. That fluid would then need to be thoroughly dried out; and 5. one can see from the description that I have given, that leaving aside the question of paper impregnated with cocaine, there were the items necessary for carrying out such an extraction found within the Premises. There were pails or buckets in which shredded paper could have been placed. There were sources of isopropanol which could have been tipped into buckets into which shredded paper had been placed. As I have already pointed out, there was a shredding machine there which could be used to facilitate the shredding of paper. There was the still with the condenser on its lid which could have been employed. I am not aware of how the condenser would have been linked to a tap and the other end of the condenser tied to a sink. There was a large paint stirring item which could be used no doubt to stir up the shredded paper in the isopropanol to quicken the process of the isopropanol drawing the cocaine from the paper.
There was also evidence of cocaine in some liquid state being dried out, perhaps in the oven or perhaps by the use of the two stoves that I have described being used to heat the final content of the still after the isopropanol had been driven off. It is of course possible that also the food dehydrator may have been used to dry out the drugs at the end of the process of the distillation.
The question then becomes: what evidence is there that that process had been carried out at Birchgrove? The Court is aware of cases of a similar nature, and there are many different ways of manufacturing different drugs. For example, the manufacture of methamphetamine is quite different to the system here used to extract or refine cocaine which had been originally impregnated in paper.
A manufacturer of a drug (otherwise known as a "cook") may have a "kit", that is, all the items necessary to carry out the production process. However, the "kit" can be moved from place to place. This is done to make it harder for the authorities to find out where it is, and to intercept it. Sometimes, a manufacturer will take the "kit" to a place, carry out a production or extraction at that place, then pack up the "kit" and move back to the place whence he came, or to some third place, thus seeking to avoid detection by the authorities.
It is quite possible that all the material found at Birchgrove had not been used at Birchgrove to conduct an extraction of cocaine there, but may have been used elsewhere, then brought to Birchgrove. That takes me back to a question I earlier asked: what evidence is there to say that a manufacturing process had been conducted at Birchgrove?
At the end of Dr Coghlan's evidence-in-chief, he was asked this question by the Crown Prosecutor, and the following answer was given: "Q. Based on the evidence referred to in your report, are you able to offer any opinion about whether the extraction of cocaine occurred at this particular premises? A. No, I'm not."
Very gallantly, Counsel for the defence pointed out to Dr Coghlan that there was one piece of evidence which might link the extraction of the cocaine to the Premises, namely the cocaine detected in the extraction fan. In cross-examination by Mr Boe, Dr Coghlan gave this evidence: "Q. If cocaine was being handled in the laundry unrelated to manufacture, is one explanation for it being [on] the exhaust fan and not on the walls… that dust is being taken out by the exhaust fan operating? A. If you're talking about fine dust I would still expect to see it in other areas in that laundry. If it was a fine dust it would still be on some walls but it would be closer to where the cocaine powder was being handled". A little later, Mr Boe put this question and received this answer: "Q. ...I'm exploring, if I may, reasonable possibilities for those two events. Not on walls, not on ceiling, not on door, but only in the exhaust: is one possible explanation that there's handling of cocaine exposed, or movement of cocaine exposed, to the atmosphere, hence the concentration of it being extracted? A. It'd have to [be] close - where that movement was would have to [be] close to the extraction fan rather [than] to the...walls and the doors were. So yes, in that case".
In other words, the fact that cocaine was found in the extraction fan in the laundry merely means that some cocaine may have been exposed to the atmosphere near the extractor fan, which would explain why there was no cocaine found in the other areas of the laundry that were swabbed, that is, the areas that are disclosed in the material that I have already discussed.
Counsel have pointed out that it is possible, of course, that somebody smoked cocaine in the laundry and that cigarette smoke or smoke containing particles of cocaine have been carried up into the exhaust fan.
The other problem is that there is no evidence as to how much cocaine was found in the exhaust fan. The work done by Forensic and Analytical Science Service ("FASS") does not enable the load of the cocaine to be determined. There may have only been a few atoms of the drug present when the area was swabbed. There may have been, however, a much larger amount of cocaine, but the evidence does not enable one to know how much cocaine was found there.
There are a number of problems with the Crown case as a whole. For example, only one cutting agent was found during the search, lidocaine. One of the items found in the laundry was also found to have traces of another cutting agent, levamisole, however, when one looks at the drugs actually detected, there were various amounts of cocaine that were found with other cutting agents.
Dr Coghlan's primary report, that dated 27 March 2020, which is part of Exhibit 7, contains, in par [33], this matter: "33. The following exhibits were found to contain cocaine in solid form: XD000120841 (1) four resealable plastic bags containing powder (6.02g), which contains cocaine. XD000120841 (2) a resealable plastic bag container containing powder (1.95g), which contains cocaine. XD000120841 (3) a resealable plastic bag containing powder (1.97g) which contains cocaine. It also contains levamisole and lidocaine and is indicated to contain procaine. XD00120841 (4) a resealable plastic bag containing powder (2.73g), which contains cocaine. It also contains levamisole and lidocaine and is indicated to contain procaine. XD000120841 (5) a resealable plastic bag containing a compressed substance (2.03g), which contains cocaine. XD000120841 (6) a resealable plastic bag containing a compressed substance (2.79g), which contains cocaine. XD000120844 (1) three knotted plastic bags containing powder (114.1g), which contains cocaine. XD000120844 (2) a knotted plastic bag, labelled '844' containing powder (28.86g), which contains cocaine. XD000120844 (3) two knotted plastic bags containing powder (56.61g) which contains cocaine. It also contains levamisole and is indicated to contain procaine. XD00120844 (4) a knotted plastic bag, labelled 'A' containing powder (1.79g), which contains cocaine. It is also contains levamisole. XD000120844 (5) a resealable plastic bag containing a compressed substance and powder (2.28g) which contains cocaine. It is also indicated to contain procaine. XD000120844 (6) a resealable plastic bag containing a compressed substance and powder (2.94g), which contains cocaine. It is also indicated to contain benzocaine. XD000120844 (7) a resealable plastic bag containing a compressed substance and powder (1.94g), which contains cocaine. XD000120844 (8) a resalable plastic bag containing a compressed substance (0.71g), which contains cocaine. It also contains levamisole. XD000120852 a resealable plastic bag containing powder (0.49g), which contains cocaine. It also contains levamisole, caffeine and is indicated to contain procaine. XD000120854 a plastic container containing a powder (12.8g), which contains cocaine. XD000120856 a plastic container containing a powder (85.5g), which contains cocaine. XD000120857 a plastic container containing a powder (155.5g), which contains 79.0% cocaine (122.8g). XD000120858 a plastic container containing a powder (56.3g), which contains cocaine. XD000120859 includes a plastic package containing a compressed substance and powder (57g), which contains cocaine. Includes another plastic package containing a compressed substance and powder (80.4g), which contains cocaine. XD000125402 a plastic bag containing powder (64.2g), which contains cocaine. XD000125404 a plastic container containing a compressed substance (34.2g), which contains cocaine. XD000125406 a plastic container containing compressed substance and powder (15.9g), which contains cocaine. XD700070373 a resealable plastic bag containing powder (0.08g), which contains cocaine. It also contains levamisole. XD700070374 two resealable plastic bags containing powder (0.14g), which contains cocaine. It also contains lidocaine. XD700070375 a plastic bag containing powder (0.17g), which contains cocaine. XD700070376 a resealable plastic bag containing powder (0.10g), which contains cocaine. It also contains lidocaine. 34. The total amount of solids mentioned in paragraph 33 that contains cocaine is 789.5g."
Why some of the cocaine should be in powder form, and other in compressed form, the evidence does not explain. However, one can see that, not only were lidocaine and levamisole used as cutting agents, there is also reference to procaine, benzocaine, and caffeine, being used as, I assume, cutting agents.
The Crown case has postulated that all of the cocaine being found at the Premises was "manufactured there" by this extraction process carried on during one production of the drug. Why that one production should produce some solid material, some powdered material, and different packages of cocaine mixed with different cutting agents, has not been adequately explained or indeed explained at all.
I accept, as was found by Dr Coghlan, that it is likely that the cocaine found at the Premises had, at some time or another, been extracted from paper impregnated with cocaine. What I do not know is whether the paper impregnated with cocaine was impregnated by pure cocaine or impregnated by cocaine that had already been mixed with some cutting agent. I do not know how or why the parcels of cocaine found at the Premises were found to be so different.
There are a number of other matters arising from the evidence of Dr Coghlan on which I shall comment. Questions can also result from the analysis being carried out by FASS itself. On p 75 this evidence was given by Dr Coghlan in chief: "Q. In paragraph 21, you refer to exhibit A23 being a plastic bucket that contained moist mesh bags and stockings that all contain a black solid. Can you explain that, please, and what that would be used for in that circumstance? A. So - yeah, so what you can use the - so the black mesh and stockings can be used like a filter, so you can either - there's several ways that people can do this; where you can either have the material that you want to filter out would be inside the mesh and the black material is quite classically charcoal, activated carbon, and that's used to remove coloured material from a liquid, and you remove it by filtering. So, the mesh wouldn't remove the charcoal, but it would remove whatever substance you're trying to filter. Another way - which is not this - in this case is where the charcoal would actually be used inside the mesh, but it would be more like the fine end in fish pumps that - the granules - but, as I said, that's not in this case, but... Q. Not only could filtration take place using the filters that you've referred to in paragraph 22, but the mesh bags and stockings are another method of filtration? A. Yeah. They're all I guess grades of filtration, so ones you're looking at filtering out coarse material; the other one you're looking at filtering out fine material." What was actually being filtered out, I do not know. Was it a covering agent or some other impurity? Did that affect all of the paper or only part of the paper? These things have not been adequately explained.
On page 76, the doctor confirmed that there may have been a primary extraction from shredded paper, and then a second or third extraction to make sure that all cocaine impregnated in the paper was extracted from the paper and recovered by the manufacturers.
In cross‑examination Dr Coghlan confirmed that one cannot say, from the evidence available, when the extraction occurred. He was asked whether it was open-ended to two years. The question and answer is this: "Q. That's open-ended two years even. Is that correct? A. It can be. I'd have to look at all the exhibit items. If some contain liquids they will evaporate over years but generally if they're sealed in buckets they could last for years. Q. That's the only caveat, that if there was some open or non‑sealed liquid, that may affect the likely duration. But absent that, the date upon which the extraction process that you've opined about could stretch back to years before your examination? A. Yeah, I can't rule that out. Q. It is also the case that you cannot opine as to whether the extraction occurred in one single process on any single day or occurred on separate occasions over multiple days? A. ...No, I can't say whether it was one occasion or multiple occasions."
The doctor was then asked whether, if there were an extraction, it could occur in a day or less. He said that it could, and he then agreed that he was unable to establish that all of the cocaine found in the Premises had been extracted by the process that he described in his report.
In cross‑examination by Mr Ramrakha, who appeared for the Second Accused, the doctor said that it would have been unnecessary for the exhaust fan to be employed if the extraction process was proceeding in the laundry. He also said that there was no need to wear any goggles or respirator. He said, in cross‑examination, that the vapours emitted in the process of extraction "would be quite low".
The Crown, however, submitted otherwise. In examination-in-chief, he was asked by the Crown Prosecutor to describe the smell of isopropanol. This evidence was given: "A. Well, it smells like isopropanol. That's a stupid answer. It's I guess, like quite a strong - like an - it's an alcohol so it does have an alcohol smell, but it is quite distinct. Like, if I could smell it, I would say you would be able to recognise it as being isopropanol, but it does smell like an alcohol type or like substance. HIS HONOUR Q. Does it smell like methylated spirits or whisky or gin? A. Closer to methylated spirits than a gin." The Crown wished to continue asking the doctor questions about the smell of isopropanol, but that found an objection from Mr Boe. Madame Crown spoke of the smell of the isopropanol in submissions, commencing at p 337 line 24. "The next piece of evidence on which the Crown relies to prove knowledge both in relation to the manufacture and also the possession or presence of the cocaine is the smell. The evidence of Dr Coghlan… at transcript 74 and 75 Dr Coghlan gave evidence that Isopropanol had a strong alcohol smell close to methylated spirits. And as your Honour might have recalled having listened to the-- HIS HONOUR: It was far different to gin, l remember that bit. CROWN PROSECUTOR: One would hope so. And as commented by one of the police officers at about a minute into the clip H2, "It stinks" was the officer's spontaneous reaction when he opened one of these containers. That smell would have been even greater when the Isopropanol was being heated either on the hot plates or in the boiler or even being extracted in the oven in that glass casserole-type dish that we saw in the drawer below the oven." In other words, the Crown was relying on a distinct smell issuing from the isopropanol during the extraction period as something that would have drawn the attention of those living in the Premises, in particular the First Accused, to the fact that some chemical process was being carried out.
That does not appear to me to be consistent with the earlier evidence of Dr Coghlan previously quoted. Even if it be correct, there is a problem with that submission. If the smell emitted was sufficient to have drawn the attention of the First Accused to something different, or unusual, or out of the ordinary, going on in the unit, why would it not have been apparent to neighbours in adjoining units? And if the smell was being extracted by the extractor fan, why would it not be known by those living nearby?
Birchgrove is an inner western harbourside suburb. Once upon a time it would have been closely settled by the working classes. These days, it is still relatively closely settled, but the people living there are generally more affluent than they were in the 19th century. Any obnoxious or unusual smell coming from the Premises would have drawn the attention of the neighbours to the Premises. That is especially so when one remembers the propinquity of the Birchgrove Public School to the Premises, as previously discussed.
If there was sufficient smell or stench to alert the First Accused to something amiss going on in the unit, why would it not attract the attention of those living nearby, next door on either side to the unit 22? The other thing is that the absence of the smell might indicate that the kit was merely being stored at the Premises, and that manufacturing may have been occurring elsewhere.
There is then the evidence concerning DNA and fingerprints. The DNA evidence does not tell me when the DNA was deposited or for how long it had been there. In favourable circumstances, DNA can persist for many, many years. As was pointed out during the evidence, we extract DNA from the mummies of the Pharaohs of the 18th Egyptian Dynasty, a dynasty that reigned over 3,000 years ago.
It is impossible to know when DNA was deposited in any one place or for how long it had been there. DNA can be transferred from one human being to another and deposited by secondary transfer.
The DNA expert called in the Crown case was Ms Mhorag Elizabeth Campbell. Her report is Exhibit 5, and an appendix to her report, which the Crown was initially reluctant to tender, is Exhibit 6. Ms Campbell adopted Exhibit 6 as part of her opinion. On page 6 of Exhibit 6, under the heading "Transfer and Persistence of DNA", the following is stated: "Generally, when individuals have been in direct or indirect contact with each other in social or household environments, the possibility that secondary transfer of DNA occurred will be considered reasonable and therefore there may be little evidentiary value to the recovery of DNA from a specified individual."
It must be borne in mind that Mr Choi and the First Accused were living together as a couple, that is a pair of people involved in a romantic relationship with each other, at the Premises for a year and a half prior to the execution of the COSW. It should also be borne in mind that the evidence suggests that from about 5 April 2018, other than when he was overseas, the Second Accused was living there with them as part of their social household. They were living together, therefore the DNA of the Second Accused could have been transferred secondarily by the First Accused and/or Mr Choi.
Likewise, evidence is given by a fingerprint expert, Mr Glen Leechburch Auwers, that fingerprints do not age. The time within which they have persisted cannot be ascertained, and it is impossible to work out when a fingerprint may or may not have been deposited on any one object. In other words, both the DNA evidence and the fingerprint evidence do not appear to have been as definitive as many would like to believe.
Before turning to the elements of each of the charges contained in the indictment, I should canvass the reasons put forward by the Crown in support of the Crown's arguments in respect of those charges.
The closing address for the Crown commences on p 317, line 46, of the transcript, and the Crown's closing submission were completed at p 347. The Crown's closing submissions were divided into two parts. The first part commenced in this fashion: "The Crown submits that the manufacture of the cocaine, that is the extraction of the cocaine in excess of the commercial quantity, occurred at the Birchgrove premises for the following seven reasons." The first reason offered was the fact that the cocaine was detected in an exhaust fan in the laundry, as is agreed between the parties in Agreed Fact 19. The Crown did not suggest that that fact alone would satisfy the Court beyond reasonable doubt that the extraction of the cocaine had occurred in the Premises. In that regard, the Crown's submission was accurate.
The Crown then said this: "Now, it might be suggested the absence of cocaine in the other swabs taken in the laundry would not be consistent with manufacturing occurring in the laundry, but the Crown says, firstly, the other swabs were taken from the other end of the room, H12 p 82, exhibit 3, s H12 p 82."
The Crown says that if you are manufacturing cocaine in that room, you would not do it immediately behind the door where anyone entering would fall over the equipment. You would do it down near the sink where the exhaust fan was. The still with the condenser needed to be connected to power and to a tap, both of which were located at the end of the room close to the exhaust fan. The manner in which items were stacked when they were cleaned up is also consistent with this, that is, the items being stacked out of the way from the door, allowing access to the room and to the main working area of the laundry.
It is often found where a manufacturing process has occurred that the chemical operations squad will put the kit together to show how the kit worked or functioned in practice, but that was not done on this occasion. Where things may have been is a matter of pure speculation. The police, one would expect, would have experience in where they might expect to find things such as a splatter of a chemical or where chemicals might lodge on the wall of the ceilings. The police swabbed the areas which they did, which I have discussed. The police would have a better idea, one would think, than would lawyers acting for the Crown. Again, the only factor here is the finding of the cocaine in the exhaust fan, the quantum of which, as I pointed out, I do not know, and how it came to be there is a matter of speculation.
The second reason the Crown put forward is the fact of the location of the items in the laundry itself. Suffice it to say that many items associated with the extraction of cocaine were found in the laundry, but as I sought to show, they were packed up essentially against the northern wall of the laundry, such that the occupiers of the townhouse could still use the toilet, washbasin, the laundry tub, and the clothes washing machine.
The Crown's submissions then said this: "Now, it might be suggested, that all of these items could have been brought into the premises after extraction had occurred, in a different place, but the Crown would submit that this simply does not make sense. You would not bring empty containers to your home. A12 was 95% empty, p 13 exhibit 7. A14 only had a small amount of liquid in it and A15 was almost empty. Most of the 20 litre pails were also empty, or contained only the remnants of the processes. You might think that if the extraction had occurred somewhere else, then the remnants in the pails and the containers, these small amounts, would have been discarded or combined before moving them. If you were not using these items, you wouldn't bring them into your home." That is a very subjective analysis. Some people who may have conducted a manufacturing process elsewhere might remove everything that had been used and, for example, not take time decanting small amounts of isopropanol from one partially used container into another partially filled container, such that one could reduce the number of containers, but those containers would still have to be left somewhere and they might point to an extraction having occurred in the place where it did occur. Hence there might be thought to be a need to move all items associated with the extraction from one place to another if the idea was merely to conceal the "kit" in one place different to where the kit may have been used.
Without knowing the actual manufacturers or extractors, and knowing what their personal habits were or their modus operandi, it is difficult to accede to that submission. As I said yesterday, it appeared to me that all of the items had been stacked in the laundry and may have been taken from somewhere else where an extraction occurred. The other thing that is not alluded to is the fact that empty isopropanol containers were found in the garage. If the idea was to minimise the space taken up by the gear, one might expect partially filled containers of isopropanol to be filled up, reducing the number of containers, and for more containers to have been moved to the garage, but that does not appear to have occurred.
The third reason, the Crown argues, was the finding of the items in the drawer beneath the oven, the odd catenation of a glass casserole dish, two wooden spoons, a metal sieve, a paint brush, and Mr Choi's Medibank card. I am unaware of what use the paint brush would be put to, but, as I set out previously, eventually in the still, after the isopropanol had been driven off, one would expect to find some form of liquid cocaine which then needed to be dried out. It is always possible that a "casserole dish" containing liquid cocaine was then brought from another place to the home unit at Birchgrove, and then it was put in the stove to dry it out further, hence the casserole dish and its contents being found in the kitchen of the Premises. Again, it is only a piece of circumstantial evidence which could be explained in another way.
The fourth reason put forward by the Crown for the extraction taking place in the Premises was the location of items in bedroom 3, in particular the dehydrator and the paper shredder. There is no hard evidence that the dehydrator was actually used in the extraction of cocaine. The Crown has not proved beyond reasonable doubt that there was cocaine in the dehydrator. I set out the submissions about that previously. The powder could have been any one of a number of different items, and it could have been an item consistent with the dehydrator being used by the First Accused to make jerky for sale as a dog treat.
I wholly accept the paper shredder was used for shredding paper impregnated with cocaine. Examples of that paper were found within the paper shredder, and have been analysed by, inter alia, Dr Coghlan. Clearly that paper shredder had been used in the process, however it is possible that it was moved from the other material because it was sought to be used for its ordinary purpose, for example shredding business papers that may have been brought into the Premises by Mr Choi, or indeed business papers relating to Pawfect Pooches' Business of the First Accused. Equally, it may have been at some stage the paper shredder was held near the home office on the upper level of the townhouse and was moved by somebody to the third bedroom in order to take it out of the way of a social gathering or the like being held on the upper level of the Premises. The fourth reason is not at all compelling.
The fifth reason given by the Crown was that items were found in the garage that have not been photographed or catalogued in any way, but which one can see in the film of the execution of the COSW. A plastic storage tub was found in the garage next to the empty isopropanol 20 litre containers, and, in that storage tub, were found what the Crown submits were items similar to those seen in both the kitchen and the laundry at the time of the execution of the COSW, a sieve, paint brush, and funnels.
However, for all I know the sieve, paint brush, and funnels, may have been for some lawful purpose. Who put them there? I do not know. And then we have the conundrum of the presence of a vehicle whose owner appears to be somebody called "Upton", living in Zetland, and what was that person doing parking a white BMW motor car in the garage of the Premises? That raises more questions than the Crown's submission suggests.
The sixth reason put forward by the Crown is the presence of cocaine itself within bedroom 1, bedroom 2, bedroom 3, the kitchen and the laundry. The amount of cocaine in bedroom 1 was extremely small. The amount of cocaine in bedroom 2 was even smaller. The amount of cocaine in bedroom 1 was 0.39 grams. The amount of cocaine in bedroom 2 was 0.1 gram. There were 209.23 grams of cocaine in bedroom 3. There were 17.98 grams of cocaine in small resealable plastic bags found in the home office area, in particular in the faux Coca Cola can. There were 310.1 grams of cocaine in the kitchen, and 301.3 grams in the laundry. Clearly the amount of cocaine in bedroom 3, the kitchen, and the laundry, are large amounts of it. However, the submission ignores the point I sought to make yesterday that some cocaine was cut with lidocaine, some was cut with levamisole, some was cut with procaine, some was cut with caffeine, and some was cut with benzocaine. The only unused cutting agent found at the time of the execution of the COSW was lidocaine. Those differences cannot be ignored. The Crown did attempt to grapple with that argument. On p 321 of the transcript the Crown Prosecutor said this: "It might be suggested that the fact that nine of the exhibits contained cutting agents, procaine levamisole that were not found at the house suggested the cocaine located in the house was not from the process of manufacturing at the premises. That other substances were detected does not mean the cocaine is not from the extraction impregnated at the premises. It could mean nothing more than that various cutting agents were used as they were sourced at particular times and that when police conducted the search, lidocaine was the cutting agent that was present". The problem with that is that it postulates that there may have been different manufactures at different times and anywhere between 5 April 2018 and 5 September 2019, the range pleaded in the indictment. The problem for that is it raises questions of duplicity in the case against the Second Accused.
The seventh and final piece of evidence relied upon by the Crown is, as the Crown Prosecutor admitted, a small piece. The submission is this: "The last piece of evidence is a small piece, but important, but it connects the extraction to this particular premises and that is the association. Ms Leung admits to living at the premises and her personal property, items connected with her business are located at the house and her business was registered to the premises and, of course, Mr Choi was her partner at the time, the lessee and one of the occupiers. Mr Webster was a resident between 30 July and 4 September 2019 and Mr Yeom was an associate of Mr Choi. The Crown submits that location of the items throughout the premises connected with the extraction process is circumstantial evidence which would satisfy you beyond reasonable doubt, that extraction of cocaine occurred at the premises or that, at least, a step or steps in the process of extraction occurred at the premises". I have some difficulty in understanding the coherence of that submission, which goes on but reiterates evidence previously considered. As I have pointed out, there is evidence that two persons associated to Mr Choi were involved in the cocaine extraction. They were Mr Yeom and Mr McCormick. How the First Accused's relationship with Mr Choi made it more probable than not, or even made it likely, that the extraction occurred at the Premises as distinct from somewhere else is a matter really of conjecture and supposition.
Further on, the Crown went on to say on this issue that it somehow relates to the fact that the Second Accused would stay at the Premises at the time of the execution of the COSW. The prosecutor pointed out that the Second Accused's DNA was located on the safely goggles and respirator as I pointed out yesterday. She continued thus: "Both of those items could have been used in the extraction of cocaine. They were in the same storage box A003 with the safety goggles and the respirator. What other items used in the extraction process: funnels A006, filters A008, shredded paper A09, and used filters and colanders A10. The Crown would say that this is evidence which would satisfy you of the connection between the safety goggles and the respirator to the extraction process, but also, importantly, the Accused Webster's prints were located on boiler that tested positive for cocaine. The Crown submits that, as this item was packed away in a box when it was located by the police, the accused Webster's prints on this item is a very important piece of evidence not only connecting the accused Webster to the manufacture of the cocaine, but it's also establishing the manufacture of cocaine occurring in that premises between late July 2019 and 4 September 2019, the only time the accused Webster was resident at the premises." That does not logically cohere with the seventh piece of evidence relied upon by the Crown to support its argument, however, it is another argument relied upon by the Crown.
The last submission which I quoted drew protest, and I use that word advisedly, from Counsel for the Second Accused. He protested that the evidence adduced at trial, or the evidence which the Crown sought to adduce at trial, was that on 5 April 2018, the Second Accused commenced paying rent to Mr Choi and that, in essence, the Crown was seeking to prove that the Second Accused was living at the Premises from 5 April 2018 until he went overseas on 15 or 16 June 2019, but for a short holiday that he had to New Zealand in early 2019.
For reasons that I will point out when dealing with count 1 in the indictment, the Crown resiled from that and then sought to establish that the relevant period, as far as the Second Accused was concerned, was from April 2019 and 4 September 2019, the first date being related to various text messages which were given the name "stocking texts", but the tender of which was rejected on the voir dire.
Then, when Counsel for the accused raised questions about duplicity, and I asked the Crown when it was alleged the manufacture occurred, the Crown said that the manufacture was ongoing. I pointed out that the Second Accused was entitled to know when it was that the manufacture occurred, for example was it in the period between April 2019 and 15 and 16 June 2019, or was it in the period from 30 July 2019 until 4 September 2019? There were two possible periods, and therefore the averment contained in the indictment was duplicitous. The Crown then decided that it would run the period from 30 July 2019 and 4 September 2019. That, of course, is the period stated in the last quotation I have taken from the Prosecutor's closing address.
However, it was completely erroneous, and learned Counsel must have known it was completely erroneous, to seek to persuade the Court that the Second Accused was only a resident of the Premises between 30 July 2019 and 4 September 2019. Indeed, although they did not use the terminology I shall, the submission smacked of intellectual dishonesty.
The Crown has the onus of proving during the relevant period that the manufacture in question occurred, and as I sought to point out previously, there is no evidence to tie down any date to the manufacture.

[33]

The Crown case - supply

The second part of the Crown's closing address were that there were six pieces of evidence with would satisfy me beyond reasonable doubt that the drugs located in the Premises were in the possession of each of the accused for the purposes of supply.
The first was the presence of scales found in the kitchen to which I have adverted. However, there is no fingerprint or DNA evidence linking the scales to anyone other than Mr Choi. The Crown submissions went on to state this: "There were three further sets of scales located, they were in bedroom 3 as seen in E13. One of which was similar to the set of scales in the drawer [near] the oven (see E13, 5.28 of that video). The box for the Tanita set of scales was located in one of the plastic storage boxes at the left side of the door as one enters bedroom 3 (see E13, 19.37). The same box to which items connected with Ms Leung's business were located (E13, 20.28), including the stamp for her business (E13, 21.10). Scales were also located in a storage box with lots of small resealable plastic bags (E13, 18.12). The size of the bags and the size of the scales, the Crown would say are inconsistent with being used for a legitimate purpose."
As I have mentioned earlier, part of the First Accused's "Pawfect Pooches" business was the marketing of natural healthy dog treats in the form of jerky. Exhibit 14 are pictures of the packaging, and one can see that the packaging carries a net weight marking. Within each printed plastic bag is a smaller plastic bag which might be of a size that the Crown thought to be unusual. However, the scales in bedroom 3 could well have been used for the legitimate purposes of the First Accused's dog business. Its presence there has no sinister connotation, nor does the presence of resealable freezer bags nearby have any sinister significance in itself.
The next fact that the Crown appears to rely upon were the presence of the freezer bags, and resealable bags in various places in the residence, in particular in bedroom 3, and other things that were referred to as "food saver devices packaging", which the Crown submitted were most likely used for the purpose of supplying drugs by breaking the amounts into smaller amounts using the scales and then passing them on. That is possible, but there are many legitimate reasons for having resealable bags and food saver bags in any particular household.
The next item referred to by the Crown was the presence of cash. I have pointed out that the cash found in bedroom 2 was a very modest amount that most adults living in our community might hold or carry with them as they are going about their daily lawful activities. There was nothing sinister in the cash found in the Second Accused's bedroom, bedroom 2.
There was cash found in the First Accused's purse, but many things can be found in ladies' purses. The amount of cash itself was not some enormous sum, such as $5,000. There was a supply of cash in the First Accused's bedside table, $1,400, which may initially have been larger if sums had been drawn from it. Clearly, on Mr Choi's side of the bedroom, there was found $2,000 in $50 notes held together with an elastic band in Mr Choi's bedside table. Large amounts of cash were found in bedroom 3 and in the home office area.
As far as the First Accused was concerned, there was also an amount of $2,000 in cash found in her motorcar, the Mercedes-Benz parked on Water Street. But if one attributes the money found in her handbag, $1,370, the money found in her bedside table, $1,400, and the amount found in the her car, $2,000, one can see that there is less than $4,000 which might be attributed to her, which does not appear to me to be an extraordinary amount, particularly is that so when one would expect the dog business to perhaps run on cash. After all, no one obtains a tax deduction, unfortunately, for grooming and pampering their pets.
The large amount of cash found in bedroom 3 could have been Mr Choi's. The large amount of cash found in the home office area is more likely than not to have belonged to Mr Choi. Clearly, those sums of money are consistent with Mr Choi's having been involved in supplying illicit substances for cash, which is not necessarily consistent with either the First Accused or the Second Accused being involved in supplying drugs.
Although the Crown said that there were six pieces of evidence, as far as I can work out from my analysis of the Crown's argument, the six items of evidence were either the scales, the packaging and the money, or they may have been broken up to scales and money being found in different places. The Crown case is largely a concatenation of various items of circumstantial evidence which contain many, if I may say so, gaps.

[39]

Circumstantial case

The Crown's case is circumstantial. I enquired of counsel which circumstantial direction I ought give myself, whether it be any 'strands in a cable' direction or a 'link in the chain' direction: see Shepherd v R (1990) 170 CLR 573. Mr Ramrakha submitted that I should direct myself that this is a 'link in the chain' case. No demur was made to that by either Mr Boe, his junior, or the learned Crown Prosecutor.
The Crown asks me to draw an inference or conclusion of guilt as to essential ingredients of various of the charges beyond reasonable doubt from evidence that I will turn to shortly. It is not open to me to come to a conclusion favourable to the Crown unless I were first to find an essential intermediate fact. As that fact is essential in coming to a conclusion in favour of the Crown, because the Crown must prove its case beyond reasonable doubt, I would first have to be satisfied as to the existence of that particular fact beyond reasonable doubt.
This particular fact must be proved beyond reasonable doubt, not because it alone proves the guilt of the accused, but because it is an essential step in the reasoning that the Crown asks me to follow in order to establish its case. Unless the fact is proved beyond reasonable doubt, the reasoning relied upon by the Crown must fail.
As I have already said, in relation to the facts which are not essential to the process of reasoning, I would not consider those facts established by the evidence in isolation, but could have regard to them as a whole. If I were satisfied beyond reasonable doubt as to the existence of the essential fact, then I can take that fact together with all the other facts I find established and ask whether I can draw an inference or conclusion in favour of the Crown from those facts considered as a whole.
In such a circumstance where what the Crown asks me to find is not available, then the Crown's circumstantial case fails. It is for me to determine what conclusion, if any, can reasonably be drawn from the established facts, and then to consider whether there is any other reasonable explanation for those facts other than the guilt of the accused in relation to that count. If there is no other rational explanation consistent with all the established facts considered together, then it would be open to me to convict. If, however, I am not satisfied beyond reasonable doubt as to the essential fact to which I have referred, I must return a verdict of not guilty.
Let me illustrate the direction with this. The Crown submits that I would be satisfied beyond reasonable doubt that the MDMA found in bedroom 2 was within the control and dominion of the Second Accused, that he owned the MDMA found in the small, round, conical container, from which he was drawing cocaine to fill the capsules that did contain MDMA.
The Crown then asked me to link that supply of MDMA to the container of MDMA found in bedroom 3, which contains his fingerprints. To link that MDMA to the Second Accused, I would have to conclude that the only rational reason for his fingerprints being on the container of MDMA in bedroom 3 was because he was using that container of MDMA as the source of the MDMA that was found contained in his bedroom.
If that be not the only rational inference to be drawn, then I cannot use those fingerprints on that container to link the Second Accused with dominion or control over the box of MDMA on which his fingerprints were found.

[44]

Consideration - Count 1

As to the second element, the indictment that is currently before me pleads the period from 5 April 2018 and 5 September 2019. As I have already stated, the opening time was from when the Second Accused commenced paying rent to Mr Choi. I understand that an earlier version of the indictment commenced the date as 1 January 2019, but when the Crown discovered financial records relating to Mr Choi which showed the payment of rent by the Second Accused to Mr Choi commencing on 5 April 2018, the Crown amended the indictment to commence the period on 5 April 2018. The Crown subsequently alleged between April 2019 and September 2019: see R v Leung; R v Webster (No. 1) [2022] NSWDC 137, [52]. But the Crown's address limited the period to "late July 2019 and 4 September 2019": see transcript 323.24.
As to the third element the Crown case was based on the allegation that the relevant offending occurred not at some indefinite place in Birchgrove, but rather in the premises, the townhouse that had been rented by Mr Choi at which the First Accused and the Second Accused were at the time of the execution of the COSW.
The fourth element, manufacture, is defined in the Drug Misuse and Trafficking Act 1985, s 3, to include the process of extracting or refining the substance. The substance, of course, was cocaine. The commercial quantity of cocaine is 250 grams, and the Crown must prove that the accused knew that the amount of the cocaine manufactured was not less than 250 grams: see Alliston v R [2011] NSWCCA 281, [129] and [154].
Here the Crown has failed to establish the second element. I am not persuaded beyond reasonable doubt that the relevant manufacture occurred between 30 July 2019 and 4 September 2019. I am not persuaded beyond reasonable doubt that the extraction of cocaine from paper impregnated with cocaine occurred at the Premises during that period. The evidence is consistent with equipment for such manufacture or extraction being stored at those Premises at the time of the execution of the COSW, but whether that equipment was used in that townhouse to carry out the manufacturing process is a matter not proven beyond reasonable doubt.
The next item that the Crown must prove is that the Second Accused himself was involved in the process of extracting or refining the substance. Here, the Crown relies, in particular, upon the fingerprints of the Second Accused found on the Still that had been packed into a box. However, those fingerprints could have been put there by him as he was putting the Still into the box, if the Still had been brought there and was to be packed away after a manufacturing process occurred. Equally, he could have put his fingerprints on it as he lifted the Still out of the box if the box were being taken away elsewhere for the manufacturing process.
The Crown also relied upon the DNA of the Second Accused found in the goggles or extractor mask, as previously mentioned, which appeared to me and to Dr Coghlan to be new. They clearly were placed in a tub in which other equipment that may have been used in an extraction occurred. That does not necessarily mean he put them there after using them during the extraction process. There was no illicit substance found on the goggles nor in the filters of the mask. They may have been cleaned, or they may not have been cleaned. Whether the cleaning would have obliterated all traces of the cocaine is a matter which also has not been proved beyond reasonable doubt.
That is the only hard evidence, if I can use those words, to link the Second Accused to the manufacture, and there are reasonable explanations for why his fingerprints may be on the still or his DNA be on the goggles and respirator.
I accept that element 5 has been established, that cocaine was manufactured in the sense that it was extracted from paper, but I am not persuaded that it was extracted during the requisite period or at the requisite place.
When one realises it may not have been extracted at the requisite place or in the requisite time, once one realises that one view of it is that there may have been multiple extractions over a period of time, the Crown is unable to prove that at a time when the Second Accused may have been involved in the manufacturing process, that it was in fact not less than the commercial quantity of cocaine, 250 grams, that is, that the requisite quantity of cocaine was indeed "manufactured" as that term is defined in in the Drug Misuse and Trafficking Act 1985.
Furthermore, there is no evidence of the seventh essential element or ingredient of the charge that the Second Accused knew, if he were involved in the manufacture of cocaine, that he had involved himself in the manufacture of 250 grams of that drug. The Second Accused is entitled to be acquitted in respect of count 1.

[46]

Consideration - Count 4

As to the third element, the Crown case was based on the allegation that the relevant offending occurred at the Premises. As to element four, supply is defined in the Drug Misuse and Trafficking Act 1985 s 3 to include selling or distributing, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply or sending, forwarding, delivering or receiving for supply, or authorising, directing or causing or suffering or permitting or attempting any of those things. Section 29 also provides this: "A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply…" The traffickable quantity of cocaine is 3 grams. The provisos to s 29 are not relevant in this case.
Essentially the Crown alleges that at the time of the execution of the COSW, the Second Accused was in control or command of all of the cocaine found in the Premises, and that amounts to more than 250 grams.
In bedroom 2, the room which was being used by the Second Accused in which to sleep since his return to Australia on 30 July 2019 and where his personal effects were found, police found one folded piece of paper containing traces of cocaine and one resealable plastic bag containing 0.1 gram of cocaine. As I pointed out yesterday, they were found in a tin behind the television on the chest of drawers, which was being used as a stand for the television, and they were found with a card embossed with the Second Accused's name, showing his membership of a well-known community group. I have no hesitation in accepting that 0.1 gram of cocaine was in his possession, however that is less than a small quantity and far less than a traffickable quantity. The inference to be drawn is that it was probably for his own use.
In bedroom 1, there were 0.39 grams of cocaine, but one might infer that cocaine was for the use of the First Accused, at least in part, and the part which may have been found in Mr Choi's side of the wardrobe may have been for his personal use. The real issue is whether the 209.23 grams found in bedroom 3, and the 310.1 grams found in the kitchen, and the 301.3 grams found in the laundry, were within his power, control, or dominion, such that he could be seen to be in possession of them at the relevant time. The inference I drew from the evidence is that the cocaine found in the home office on the upper level of the building, cocaine amounting to 17.98 grams, was more probably than not in the control of Mr Choi because that appears on the evidence before me to have been some form of personal space occupied by Mr Choi.
The only thing which might link the Second Accused to the cocaine in bedroom 3, the kitchen, and the laundry, are some fingerprints and/or DNA evidence found, not on the drugs themselves but, on the containers in which drugs were found. I sought to point out yesterday that some of the containers had clearly been used for domestic purposes and had been adapted by someone to house drugs. In particular, there were the containers marked "skincare", "scampi" and "squid".
Many containers are often not labelled. That is often why the bodies of them are see-through, so that one can ascertain what has been stored in them. There is nothing which can demonstrate when the fingerprints were put on the objects nor when the DNA was put on the objects. There is no way of differentiating between whether the fingerprints or DNA were placed on the object before it was used to contain drugs, or after it was used to contain drugs. The sheer amount of the cocaine to me indicates that it was probably within the power and control of he who was the effective occupier of the Premises, Mr Choi, the lessee.
During the period from 30 July 2019 until 4 September 2019, the Second Accused appears only to have been on the Premises temporarily, residing there for a short time, until he found other accommodation, at the grace and favour of the First Accused. The First Accused herself was there at the grace and favour of Mr Choi. Any attempt by the Second Accused to take drugs from the bedroom 3 storage area, or from the kitchen or the laundry, could have caused friction, to say the least, between him and Mr Choi, assuming Mr Choi was the real owner of the cocaine now in question. His limited control over the Premises is inconsistent with the allegation of the Crown that all of the cocaine in the Premises was essentially at the beck and call of the Second Accused.
In the circumstances, I am not satisfied that the Second Accused was knowingly in possession of a commercial quantity of cocaine found in the Premises at the time of the execution of the COSW. Possession can be proved by proof that he knew it was there, but there is no evidence which establishes that knowledge beyond reasonable doubt. The Second Accused is therefore entitled to be acquitted on count 4.

[48]

Consideration - Count 5

In bedroom 2 were found two resealable plastic bags containing within them 65 capsules which contained a total of 8 grams of MDMA, and 1 round disposable takeaway plastic container containing 6.8 grams of MDMA. As I pointed out yesterday, they were both found on the floor on the north side of the bed that was being used by the Second Accused. Very close by were the bags of inner capsules and outer capsules that were previously described, and the capsule filling machine and the "specimen jars" which I have previously discussed.
There is no doubt that the capsules and the capsule filling machine were purchased by the Second Accused. Again, as I pointed out yesterday, found elsewhere in bedroom 2, in particular in the area on top of or within the tall boy, were other packages of capsules. Capsules were found nowhere else within the townhouse.
I am led inexorably to the conclusion beyond reasonable doubt that the MDMA in the capsules and in the round disposable takeaway plastic container were in the possession of the Second Accused. That is the only logical conclusion. The total of the MDMA was 14.8 grams; that is greater than the traffickable quantity of 0.75 grams.
The remaining question is whether all the other MDMA found within the Premises were within the knowledge, possession, and control, of the Second Accused. A clue to that is this; the MDMA found in bedroom 2 was found in the round plastic container which, as I described previously, was the only container of its type found in the Premises. That contained 6.8 grams of MDMA. In bedroom 3, in a container, were found 443.7 grams of crystalline MDMA on which the fingerprints of the Second Accused were found. The exhibit number assigned by the NSW Police to that parcel of MDMA was XD00120848. The NSW Police exhibit number for the MDMA found in bedroom 3 was XD000133950.
The MDMA found in bedroom 2 has been merely described as MDMA. The container with the Second Accused's fingerprints on it in bedroom 3 has been described as crystalline MDMA. That distinction is made by the authorities, not, for example, by the Second Accused. It is a distinction which must mean something. The significance of it is unclear to me, but it might indicate that the two pieces of MDMA come from a different source. The Crown case is that the MDMA found in bedroom 2 may have come from bedroom 3, meaning that the Second Accused was taking his supply of MDMA from the container in bedroom 3, hence his fingerprints being upon the container.
There might be substance in that submission if I knew that, chemically, the MDMA in bedroom 2 was exactly the same, chemically, as the MDMA found in bedroom 3. Even assuming for the moment that they be the same, and I use the subjunctive mood advisedly, one thing that is very commonly encountered is a difference in the purity of drugs (that is, the ratio of pure MDMA to the amount of cutting agents added to the drug, for example lidocaine. For example, if the MDMA were 50% pure, there would be 50% MDMA and 50% cutting agent). If the purity of the MDMA found in bedroom 2 was of the same purity as the MDMA found in bedroom 3, one could confidently assume that the two came from the same source and, therefore, that there was strength in the Crown's submission. Unfortunately, no one has ascertained the purity of any of the MDMA, so I do not know whether the purity of the MDMA found in bedroom 2 is of the same purity as that found in bedroom 3.
I am therefore not persuaded beyond reasonable doubt that the MDMA found in bedroom 3 in the container that was found to have the Second Accused's fingerprints upon it was something that he knew of, or had control of, or dominion over. There were three other parcels of MDMA in bedroom 3 but, again, no evidence to link them to the Second Accused.
In the office was found one resealable bag containing 0.44 grams of MDMA but, again, the inference that I drew from the evidence is that that was likely to be within the control or power, or belong to, Mr Choi, the home office area being a space personal to him. That also indicates that Mr Choi was interested in MDMA and, if he was a major player in extracting cocaine, he may also have been a major player in possessing MDMA.
There was found in the laundry one clip lock container containing 9.26 grams of MDMA, but why that was there I do not know. It appears to have been with materials related to the extraction of cocaine. In the circumstances, I am not satisfied that the MDMA found in bedroom 3, or the MDMA found in the office or the laundry, was within the knowledge of, or power of, or control of, the Second Accused.
Accordingly, an appropriate verdict in respect of count 5 is not guilty as charged. I have heard counsel as to whether the possession of a traffickable quantity of MDMA is an alternative finding that the Court is required to make, see my orders below.

[55]

Verdict re the Second Accused

Cameron Stewart Webster, on a charge that between 6 April 2018 and 5 September 2019, at Birchgrove in the State of New South Wales, you manufactured an amount of a prohibited drug, namely cocaine, which was not less than the commercial quantity of that prohibited drug, I find you not guilty. You are acquitted.
On a charge that on 4 September 2019, at Birchgrove in the State of New South Wales, you did supply an amount of prohibited drug, namely cocaine, being an amount which was not less than the commercial quantity applicable to that drug, I find you not guilty. On that charge you are acquitted.
On a charge that on 4 September 2019, at Birchgrove, in the State of New South Wales, you did supply an amount of prohibited drug, namely MDMA, being an amount which is not less than the large commercial quantity applicable to that drug, I find you not guilty as charged. I find you guilty of an offence that on 4 September 2019, at Birchgrove, in the State of New South Wales, you did supply an amount of prohibited drug, namely MDMA, being an amount which was not less than the traffickable quantity applicable to that prohibited drug.
On the charge that on 4 September 2019, at Birchgrove, in the State of New South Wales, you did supply an amount of prohibited drug, namely methylamphetamine, being an amount which is not less than the large commercial quantity applicable to that prohibited drug, I find you not guilty. On that charge you are acquitted.
On the charge that on 4 September 2019, at Birchgrove, in the State of New South Wales, you did supply a prohibited drug, namely heroin, being an amount which is not less than the traffickable quantity of that prohibited drug, I find you not guilty. On that charge you are acquitted.
On the charge that on 4 September 2019, at Birchgrove, in the State of New South Wales, you did supply an amount of a prohibited drug, namely GBL, being an amount which is not less than the commercial quantity applicable to that drug, I find you not guilty. On that charge you are acquitted.

[57]

Consideration - Count 2

As to the fourth element, the Crown case was based on the allegation that the relevant offending occurred in the Premises. The Drug Misuse and Trafficking Act 1985 s 6 provides this: "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 or psychoactive substance 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, (b) the person provides or arranges finance for any such step in that process, or (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." The Crown here relies on s 6(c).
There is learning as to the meaning of the words "permitting" and "suffering". R v Jasper [2003] NSWCCA 186; (2003) 139 A Crim R 329 involved a Police Officer. He and another police officer accepted money from C, who paid them to be allowed to continue his drug supply activities. The Respondent Police Officer was charged with supplying heroin. He accepted the facts as alleged by the prosecution, but argued that his conduct, taken at its highest, did not constitute "supply" within the definition of s 3 of the Drug Misuse and Trafficking Act 1985. In the Supreme Court, the presiding judge agreed with that submission and ordered a stay of proceedings in the Local Court. The prosecution appealed, arguing that the Respondent's conduct constituted "permitting" or "suffering" the supply of the heroin. The appeal was successful. The judgment of the Court of Criminal Appeal was given by Mason P, with whom Dowd and Adams JJ agreed. When discussing the meaning of these words his Honour said this: "22 The very fact that each word is used in the present definition points against complete identity of meaning. As presently advised, I see nothing in the context to displace the reasoning in Sanewski where Kelly SPJ (at 378) and Shepherdson J (at 379-380) suggested that when the words are juxtaposed "suffer" carries a more passive connotation, meaning passively or implicitly allowing an act to take place as distinct from actively or expressly allowing it (ie "permitting" it). See also Barton v Reed [1932] 1 Ch 362 at 375, Beaumont v St Kilda Borough [1975] 2 NZLR 369 at 370, R v Lonie [1999] NSWCCA 319 at [92]. This at least is an arguably correct interpretation, notwithstanding the contrary views in English cases dealing with the phrase "knowingly permits or suffers" (R v Thomas (1976) 63 Cr App R 65, R v Bett [1999] 1 WLR 2109). 23 This is not to say that the offence of supplying a prohibited drug would be established by mere proof of suspicion in one person that an act of "supply" (as defined) is or is about to be committed by another. A person does not suffer or permit conduct over which he or she has no control or of which he or she is ignorant. For a person to "permit" or "suffer" another to sell and distribute etc prohibited drugs requires more than awareness of the act in question. I agree with Shepherdson J in Sanewski who said (at 380): '… In "suffer" there is an element of awareness of the act in question occurring as well as an element of failing to prevent the occurrence of the act by the person concerned. I would add that the element of prevention arises only if the person concerned does not exercise a power which he or she has or a right to stop the occurrence.'"
In R v Sheen [2007] NSWCCA 45; (2007) 170 A Crim R 533 the same question arose and was dealt with by Bell J with whom Sully and Hoeben JJ agreed. At [19] his Honour said this: "In Jasper this Court dealt with an appeal by the Crown under s 5F of the Criminal Appeal Act 1912 (NSW) against a decision to permanently stay counts in an indictment on the ground that their prosecution was foredoomed to fail. It was the Crown case that the respondent, a corrupt policeman, suffered or permitted another to supply drugs by allowing that other, a drug supplier, to continue to deal in drugs in return for the payment of bribe monies. The primary judge held that the respondent did not have the power to prevent in advance any given offence. In granting the stay the primary judge expressed the opinion that, in the context of s 6 of the DMTA, no meaningful distinction was to be drawn between suffering and permitting. Mason P (with whose judgment the other members of the court concurred) held that the primary judge had taken too narrow a view of the concept of suffering for the purposes of the DMTA. His Honour considered the use of both words to point against complete identity of meaning. He favoured the reasoning of Kelly SPJ and Sheperdson J in R v Sanewski, that suffers, when juxtaposed with permits, carries a more passive connotation. His Honour said (at [23]): A person does not suffer or permit conduct over which he or she has no control or of which he or she is ignorant. For a person to "permit" or "suffer" another to sell and distribute etc prohibited drugs requires more than an awareness of the act in question. I agree with Shepherdson J in Sanewski who said (at 380): … In "suffer" there is an element of awareness of the act in question occurring as well as an element of failing to prevent the the occurrence of the act by the person concerned. I would add that the element of prevention arises only if the person concerned does not exercise a power which he or she has to stop the occurrence. His Honour [Mason P] commented that several of the cases point to the need to show that the offender had the power or capacity to stop another's known misconduct and, in this context, to observe that occupation of premises can establish that right or power (at [26]). His Honour went on to observe (at [27]): The critical point is the legal capacity to control a situation and the failure to do so with the requisite state of mind."
The Crown must prove actual knowledge by the accused of the manufacture or extraction of the cocaine. The authority for that proposition is R v Ruiz-Avila [2003] NSWCCA 264 a decision of Hidden J with whom Greg James J and Newman AJ agreed. In Ruiz-Avila. Hidden J said this: "14. It is one thing to say that the mental element of importation might be made out when a person brings into this country a bag in which he or she is aware that there is likely to be a narcotic drug, or that the mental element of possession is made out when a person has a container in which he or she is aware that there is likely to be a prohibited drug. It is quite another thing to say that the lessee of premises might be fixed with the knowledge required to establish the charge against the appellant on the basis only of his or her awareness of the likelihood that there is a prohibited drug in the premises. In my view, nothing less than actual knowledge of the presence of the drug, in this case the tablets, could be sufficient. Of course, if the appellant's knowledge of the presence of the tablets were proved, it would not be necessary to prove that he knew that they contained the drug ecstasy. Knowledge, or even belief, on his part that they contained a prohibited drug would be sufficient: cf Dunn v The Queen (1986) 32 A Crim R 203 at 205 per Burt CJ and (at 211) per Pigeon J. 15. Accordingly, his Honour's direction that the appellant's guilt of the second count might be founded upon proof that he was "aware that there was a real or significant chance that his rental premises were being used for the storage of a prohibited drug" was erroneous. The jury would have understood that to mean that something less than actual knowledge, not only of the nature of the tablets but also of their presence in the unit, would be sufficient. This was a misdirection about an element of the offence charged, and one which was very much at issue in the trial. Although the direction was given with the assent of defence counsel, I would uphold this ground of appeal." As such, there is in law a difference between permitting anything to occur and suffering anything to occur. Earlier in discussing this aspect his Honour referred to the decision of the High Court of Australia in Pereira v Director of Public Prosecutions (1988) 63 ALJR 1. In [12] of his reasons, Hidden J quoted from the judgment of the High Court of Australia. The quotation can be found in [12] of Hidden J's judgment. The relevant part of the quotation from the High Court is this: "It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. Secondly, the question is that of the knowledge of the accused and not that which might be postulated of a hypothetical person in the position of the accused, although, of course, that may not be an irrelevant consideration. Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available."
Accordingly, element 4 requires the Crown to prove beyond reasonable doubt that the First Accused had actual knowledge of the carrying out of the manufacture or production of the cocaine that was found in the Premises. What evidence is there that she so knew? There is no direct evidence whatever. There is no admission by her made to any investigating official, let alone to any witness called by the Crown.
The Crown asks me to infer that she must have known what was going on because of several things. They include, the sheer amount of material associated with the extraction of cocaine such as a large amount of equipment found in the laundry. The Crown also relies on the amount of prohibited drugs found throughout the Premises that were found by the police when they carried out their search. The Crown also relies upon the intimate nature of the First Accused's relationship with Mr Choi; assuming Mr Choi to be the main actor in the extraction of cocaine, she must have known what he was up to because of the nature of her relationship with him.
Antecedent to that, the Crown says that because of the intimate nature of the relationship of the First Accused to Mr Choi, the First Accused must have been aware that at all relevant times Mr Choi was on parole after being convicted of an offence of conspiracy to import narcotic drugs into Australia, as a result of which he had been sentenced to imprisonment for 20 years.
The Crown also says that she must have known what was going on because of the ready amounts of cash available to her, and the nature of some of her possessions, namely, designer handbags and designer shoes, and a large wardrobe, which the Crown submitted were all consistent with her gaining some form of income from the illicit drug trafficking which was occurring, and that therefore she must have known about the production of the cocaine that was being carried out at some stage in the Premises.
For the same reasons given earlier in connection with the allegation in count 1 against the Second Accused, I am not satisfied that the Crown has proved beyond a reasonable doubt that the manufacture of cocaine was carried out at the Premises during any requisite period of time. The Premises as found are consistent with the storage of "kit", for the manufacture of cocaine, in the laundry, and the Crown has failed to exclude that as a reasonably correct view of the facts. Therefore the Crown has failed to prove that the actual manufacture of cocaine occurred at the Premises.
If I be wrong in that regard, then one must consider the nature of the occupation by the First Accused, of part, at least, of the Premises. As I have sought to show, she was living there by the grace and favour of Mr Choi, with whom she was in an intimate relationship. For a year and a half prior to the execution of the COSW on 4 September 2019, she had been sharing the master bedroom of that townhouse with Mr Choi. She occupied one side of the large bed in the master bedroom, and Mr Choi used the other half of the bed. They were living together, essentially, as a couple in a romantic relationship, but there was no legal bond, i.e. through marriage, and therefore no implied requirement that Mr Choi support the First Accused (whether the First Accused had rights based on a potential de facto status is not relevant to these proceedings).
The First Accused's ability to stay in the flat depended upon the nature of her relationship with Mr Choi. Should, for any reason, the relationship break down, Mr Choi was probably entitled to eject the First Accused from the Premises, or to come to some new arrangement with her, for example, to permit her to continue to reside in the townhouse but only if she occupied, for example, bedroom 3 and paid rent to Choi, who had the tenancy, and the concomitant legal rights emanating therefrom, from the landlord at all material times.
The First Accused had no such proprietary and legal rights over the Premises. Compared to Mr Choi, she could not prohibit him doing anything that he wished to do in the Premises. It was up to him where she slept, it was up to him as to when she could be there, it was up to him as to what she might bring into the Premises, it was up to him in his discretion to admit others such as the Second Accused to reside there, or to allow others to store material there if they wished to do so.
Even if I be wrong as to whether a manufacture occurred at the Premises, I again point out that if the manufacture was carried out by Mr Choi that, compared to Mr Choi, the First Accused had no right to prevent him doing so other than as a normal citizen who was aware of some crime being committed.
The Crown submitted that the First Accused was involved in the "management" of the Premises, but that was only a role that she may have adopted as Mr Choi's partner, as somebody whom he permitted to act on his behalf when, for example, he was not present or when, for example, he was present but she was doing something which he permitted her to do.
If there had been a manufacture of cocaine at the Premises of which she knew, then it could well be argued that if she were there, she was suffering it to occur. But she certainly was in no position to demand that Mr Choi stop doing what he was doing.
As I understand it, in respect of count 3, the allegation made by the Crown, of which the First Accused is aware, is that the manufacturing was being carried out either by the Second Accused or by Mr Choi. One would think logically that the same particulars must be available in respect of count 2.
I have acquitted the Second Accused on count 1. I am not persuaded beyond reasonable doubt that he participated in the manufacture of cocaine at the Premises in the period between 30 July 2019 or 4 September 2019, nor could I have been satisfied he had done so at any time prior to going overseas on or about 15 or 16 June 2019 because that would be mere speculation. It is easier to prove that something occurred closer to the time when the evidence is found which the Crown relies upon to seek to establish that fact. Therefore, the only allegation available to the Crown is that Mr Choi carried out the manufacture. However, the Crown must prove that the First Accused had actual knowledge of the manufacture, and that the manufacture was of the prohibited drug cocaine, and that at least 250 grams of that drug were manufactured.
There is no direct evidence of any of those three facts. In essence, the Crown wishes me to deduce that, because she was living at the Premises, the First Accused must have known what was going on as she, therefore, must have known that 250 grams of cocaine had been manufactured there by extracting the drug from paper impregnated with it, and extracting that drug from the paper, and otherwise refining it into a form which could be sold.
However, I again point out that the First Accused was a member of the Qantas International Cabin Crew. She regularly travelled overseas for days at a time, and Mr Choi could have done anything in her absence of which she would not have known. Equally, Mr Choi could have persuaded the First Accused that what was stored in the laundry was merely being stored there with his knowledge because of his relationships with Luke Yeom or Paul McCormick or both.
The First Accused has not given evidence. She is not required to do so. She is permitted to require the Crown to prove the case against her beyond reasonable doubt. I know very little about her other than: (1) the fact of where she was born, which the evidence establishes was in Hong Kong; (2) her age; (3) her employment with Qantas; (4) the fact that she was the driver of a Mercedes Benz motor car; (5) the fact that she also had a business called "Pawfect Pooches", in which she was heavily involved with at least from 5 June 2019 when, according to Exhibit 18, she last returned to Australia from an overseas trip (as I understand it she was on leave from that time up until the time of the execution of COSW).
I know nothing of the First Accused's character. I do not know how observant she is. I do not know how suspicious she might be. I do not know to what extent she might observe the activities of others and have some questions about what they might be doing.
Some people go through this world like Voltaire's Candide, believing that only good things happen and that all is right in the world. Others go through life simply believing that everything is the result of malice, conspiracy, and fraudulent activity, without conceding that often things happen fortuitously or through mere negligence. Some people are inherently naïve, some people are inherently suspicious, but where the First Accused stands in that spectrum I do not know.
The other thing that I have to bear in mind is that the three occupiers at the relevant time at the townhouse were: Mr Choi, who was born in Seoul, a South Korean National; the First Accused, who was born in Hong Kong, and one would infer is ethnically Chinese (to what extent her upbringing was in Australia I do not know); and then the Second Accused, who one infers was probably a native born Australian, but clearly of a western culture, and one would think, with his name, perhaps of Scottish background. To what extent there may be differences in approach between the three housemates, I do not know. The First Accused may have felt that what Mr Choi was doing was nothing untoward, or if she thought it was untoward, given her cultural background, she may have believed it was not untoward in his cultural background. Again, these are things I do not know.
Accordingly, I am not satisfied beyond reasonable doubt that the Crown has proved either the fourth or fifth elements of the offence alleged in count 2 of the indictment against the First Accused. I am not persuaded beyond reasonable doubt, firstly that there was a manufacture of cocaine at the Premises during the period in question, from 5 April 2018 to 5 September 2019, and not the period between 30 July 2019 and 4 September 2019 (the period pressed against the Second Accused).
However, I again point out I am not satisfied that during that period that there was a manufacture or production of cocaine, and I am not persuaded that during that period the First Accused knew that it had taken place and suffered or permitted it to occur as alleged. For those reasons, the First Accused is entitled to be acquitted in respect of count 2.
I should also add that it has not been proved beyond reasonable doubt that she knew that the amount of cocaine was the commercial quantity, namely 250 grams, and that she knew that at least 250 grams had been manufactured.

[59]

Consideration - Count 3

According to the Crown case statements, the allegation was that the person who committed the serious indictable offence was either the Second Accused or Mr Choi, or both.
As to the first element, the First Accused admitted, in an electronically recorded interview, a copy of which is Exhibit 16, and the transcript of which is MFI 12, that she was born on 31 January 1981. She would have attained her majority on 31 January 1999, and therefore between 5 April 2018 and 4 September 2019 she was an adult.
The third element, and in my view the second element, all relate to the offending rather than the period in which the First Accused had the knowledge or belief required, and as to where she may have been when she had the knowledge or belief. A human being moves from place to place and, clearly, the First Accused intermittently moved overseas as required by her employment. The date range and locus contained in the indictment must be attributable to the offending conduct, which she is alleged to have known of or believed in.
As to the fourth element, the Crimes Act 1900 s 4 defines a "serious indictable offence" to mean an indictable offence that is punishable by imprisonment for life or for a term of five years or more. The exception to that definition, contained in s 316(6) of the Crimes Act 1900, is inapplicable. The offence relied upon by the Crown is the manufacture of the prohibited drug cocaine in not less than the commercial quantity, the maximum penalty for which is imprisonment for 20 years and/or a fine.
Here the Crown has failed to prove beyond reasonable doubt that there was a manufacture between 5 April 2018 and 4 September 2019 at Birchgrove of a commercial quantity of the prohibited drug cocaine. She could not know or believe of that manufacture if it did not occur during that period in that place.
There is a difference between the offence pleaded in count 3 in the indictment and the common law offence of misprision of felony. In Wilson v Director of Public Prosecutions [2017] NSWCA 128 Meagher JA said at [31]: "The NSW Law Reform Commission in its Report 93: Review of s 316 of the Crimes Act 1900 (NSW), presented in December 1999, described the background to the enactment of s 316 as follows: 2.1 Section 316 is part of a package of public justice offences which was inserted into the Crimes Act 1900 (NSW) in 1990. The purpose of the package was to create a comprehensive statement of the law relating to public justice offences which, until the enactment of the amendments, was "fragmented and confusing, consisting of various common law and statutory provisions, with many gaps, anomalies and uncertainties". 2.2 Section 316 replaced the common law misdemeanours of misprision of felony and compounding a felony. Misprision of felony consisted of knowing that a felony had been committed, and failing to disclose that knowledge to those responsible for the preservation of the peace within a reasonable time, and having had a reasonable opportunity to do so. Compounding a felony was constituted by agreement for consideration not to prosecute or to impede prosecution for a felony." Misprison of felony consisted of knowing that a felony had been committed. Under s 316, upon which count 3 is based, the liability for the crime has been increased from knowing that another person had committed a serious indictable offence, but to believing that another person had committed a serious indictable offence. The verbs "knew" and "believed" are joined by the disjunctive "or", not the conjunctive "and". In this respect, s 316 is a more expansive than the common law crime of misprison of felony.
However, belief cannot be given any meaning at all that one might think of. For example, I had one litigant in criminal proceedings before me who believed in a Deity called the "Flying Spaghetti Monster" (in fact, he claimed to be a member to a Church who worshipped that deity), and the fact that he believed in that would not mean that it was correct: see R v Wass [2021] NSWDC 414. Equally if one went to a police station and said "I believe that there is the production in the residence next door to my own of a commercial quantity of a prohibited drug because I can smell something that is off", the police might want the complainant to provide much more intelligence than a mere offensive smell or odour.
One must have, in my view, to be guilty of an offence under s 316, a belief based upon reasonable grounds. However, that is an unnecessary gloss because, as I said, I am not persuaded beyond reasonable doubt that there was the manufacture of a prohibited drug in the commercial quantity at the Premises by either the Second Accused, who I found not guilty of the offence, or by Mr Choi, because all that the Crown has proved is that a manufacturing kit was stored in the laundry at the Premises.
The Crown has not told me exactly what information the First Accused had which may have been of material assistance to, for example, the police in securing the apprehension of, for example, Mr Choi, or in the prosecution or conviction of Mr Choi for the offence. I say that advisedly, because the Crown wishes me to infer a large number of things from the fact that the cocaine manufacturing kit was found in the laundry of the Premises, as were certain drugs at the time of the execution of the COSW, and that therefore the First Accused must have known what was going on. Again, that is really an allegation of suspicion, and the Crown has failed to prove what it was that the First Accused believed and how she could communicate it to, for example, the police.
The question that arose as to what reasonable excuse she might have, and one wonders whether an excuse of "if I dob Mr Choi in, I might lose my place of abode" might have on the tribunal of fact, and what legal implication it is. For example, at common law, a wife could not inform against her husband quia sunt duae animae in carne una: Sir Edward Coke, The First Part of the Institutes of the Lawes of England. Or, a Commentarie Upon Littleton, Not the Name of a Lawyer Onely, but of the Law It Selfe (1st ed, 1628) 6b. Whether that old common law rule remains is a moot point not, fortunately, calling for determination in these proceedings. Accordingly, the First Accused is entitled to be found not guilty of count 3 in the indictment.

[61]

Consideration - Count 4

As I pointed out when dealing with the count against the Second Accused in bedroom 1 were found 0.39 grams of cocaine, in bedroom 2 were found 0.1 grams of cocaine, and in bedroom 3 were found 209.23 grams of cocaine. In the home office area on the upper level of the townhouse were found 17.98 grams of cocaine. In the kitchen were found 310.1 grams of cocaine, and in the laundry were found 301.3 grams of cocaine.
I pointed out earlier that of the 0.39 grams found in bedroom 1, either all of that amount of cocaine was found in the wardrobe being used by the First Accused. There were three packages found, two of which were in her coat, however the other one I was not quite sure which side of the wardrobe it came from. I have earlier pointed out that the 0.08 grams of cocaine may not have come from the First Accused's wardrobe, but rather the wardrobe that was being used by Mr Choi.
The cocaine found in bedroom 2 was clearly cocaine which belonged to the Second Accused.
The only way in which the Crown alleges that the cocaine found in bedroom 3, in the home office upstairs, in the kitchen, and in the laundry, was because the First Accused must have known that the cocaine was being manufactured at the Premises, or at least being stored at the Premises.
Consistently with what I have earlier found, I am not persuaded beyond reasonable doubt that the cocaine was manufactured at the Premises. The question then becomes did the accused know of its presence? The evidence of that, if any, is scant.
Again, the most that the Crown can point to are things such as DNA and fingerprints on containers which may have been found to contain drugs but, as I pointed out, there is no evidence that the fingerprints or DNA were placed on the container at the time that the drugs were placed in it. The containers were all domestic containers that could have been used, or were in fact being used, for domestic purposes, and were taken over by those involved in drug trafficking, in particular, probably, by Mr Choi.
In the circumstances, it cannot be established beyond reasonable doubt that the First Accused knew that the drugs were in the Premises and, therefore, that she possessed them for the purpose of supply. Knowledge of them is the first thing that the Crown must prove and that has not been proved beyond reasonable doubt. The First Accused is entitled to be acquitted in respect of count 4.

[68]

Verdicts re the First Accused

Canny Leung, on the charge that between 5 April 2018 and 5 September 2019 at Birchgrove in the State of New South Wales you knowingly took part in the manufacture of an amount of prohibited drug, namely cocaine, which was not less than the commercial quantity of that prohibited drug, I find you not guilty. On that count you are acquitted.
On the charge that between 5 April 2018 and 5 September 2019 at Birchgrove in the State of New South Wales, believing that a serious indictable offence had been committed, namely manufacture of an amount of a prohibited drug, namely cocaine, which was not less than the commercial quantity applicable, and believing that you had information that might be of material assistance in securing the apprehension, prosecution, or conviction of an offence, you failed without reasonable excuse to bring that information to the attention of a member of the NSW Police Force, I find you not guilty. On that count you are acquitted.
On the charge that on 4 September 2019 at Birchgrove in the State of New South Wales you did supply an amount of prohibited drug, namely cocaine, being an amount which was not less than the commercial quantity applicable to that prohibited drug, I find you not guilty, on that count you are acquitted.
On the charge that on 4 September 2019 at Birchgrove in the State of New South Wales, you did supply an amount of prohibited drug, namely MDMA, being an amount which was not less than the large commercial quantity applicable to that prohibited drug, I find you not guilty. On that count you are acquitted.
On the charge that on 4 September 2019 at Birchgrove in the State of New South Wales, you did supply an amount of a prohibited drug, namely methylamphetamine, being an amount which is not less than the large commercial quantity applicable to that drug, I find you not guilty. On that count you are acquitted.
On the charge that on 4 September 2019 at Birchgrove in the State of New South Wales you did supply a prohibited drug, namely heroin, being an amount which was not less than the trafficable quantity of that prohibited drug, I find you not guilty. On that count you are acquitted.
In respect of the s166 Certificate, sequence 7 is dismissed, sequence 9 is dismissed, sequence 10 is dismissed, sequence 6 is dismissed, and sequence 12 is dismissed.

R v Leung; R v Webster

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