R v Webster (No. 1) [2022] NSWDC 137
R v LeungR v Webster (No. 2) [2022] NSWDC 138
R v LeungR v Webster (No. 3) [2022] NSWDC 139
R v Leung2019/276599
Publication restriction: Nil.
Judgment (18 paragraphs)
[1]
Background
HIS HONOUR: Currently before me are two applications for costs by former accused persons. I shall refer to Ms Canny Leung as the First Applicant and to Mr Cameron Stewart Webster as the Second Applicant. Each applies for a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967, in respect of the proceedings the subject of my decisions in R v Leung; R v Webster (No. 1) [2022] NSWDC 137, R v Leung; R v Webster (No. 2) [2022] NSWDC 138, R v Leung; R v Webster (No. 3) [2022] NSWDC 139, R v Leung; R v Webster (No. 4) [2022] NSWDC 553, R v Webster [2022] NSWDC 554, and R v Leung [2022] NSWDC 555.
It is convenient to have regard at an early stage to the circumstances in which the police came to execute a search warrant in Birchgrove, the execution of which led to the charging of each of the applicants.
There is an affidavit affirmed by Ms Jessica Su on 5 April 2022. It was before me on the voir dire as Exhibit VD2. It has been tendered on this application and has been marked Exhibit 43. Annexed to that application are two Crown case statements. The first Crown case statement comprises nine pages and bears the date on the final page, 1 September 2020. The second Crown case statement consists of eight pages but is undated, however it appears to be annexed to a communication from the Office of the Director of Public Prosecutions (NSW) to the solicitors acting for the First Applicant which communications bears the date 28 March 2022, that is, shortly before the commencement of the trial on 5 April 2022.
The second Crown case statement is briefer than the first. The Crown case statement of 1 September 2020 has a large number of prefatory statements, the relevant ones are these:
"1. Between January 2019 and September 2019, NSW Police Force formed SF PICKLE with the objective of investigating the manufacture and supply of prohibited drugs in the Sydney Metropolitan area. Police conducted lawful surveillance and monitored the telecommunications of the following persons:
a. Zhen Chi CHEN,
b. Yuqing XIAO, and
c) Frank MAGGS.
2. During the course of the investigation police observed CHEN and XIAO meeting with Hyeon Joon CHOI and Canny LEUNG. At the relevant time CHOI and LEUNG were in a domestic relationship. CHEN and XIAO were observed attending a residential unit at 22/2-8 Water Street, Birchgrove and the. Residential tenancy records for unit 22/2-8 Water Street, Birchgrove indicate that the property was leased [sic] to Hyeon Joon CHOI continuously since 7 October 2017. That address is also the registered address for Pawfect Pooches PTY LTD on the ASIC company register. LEUNG had a registered interest in that company. During the course of the investigation CHEN and XIAO were observed attending Pawfect Doggy Spa at 485 Darling Street, Balmain.
3. At the relevant time XIAO used mobile phone service [ending 81] and CHEN used mobile phone service [ending 82]. Both services were registered to Zhen CHEN. At the relevant time LEUNG used mobile phone service [ending 37].
Links between CHEN/XIAO and CHOI/LEUNG/WEBSTER
4. On 10:21pm 16 April police observed CHEN and XIAO travelling in a black coloured B200 Mercedes Benz bearing NSW registration BIV39L from Dixon Street, Haymarket to Gow Street, Birchgrove. Gow Street is in close proximity to unit 22/2-8 [Water] Street. BIV39L remained parked on Gow Street between 10:51pm and 11.20pm BIV39L remains parked on Gow Street. At 11.20pm XIAO and CHEN return to BIV39L and travelled to the Star Casino, Pyrmont. XIAO is observed meeting with two different unknown males. The Star Casino was a location frequently used by CHEN, XIAO and MAGGS to meet their associates.
5. Between 7:30pm and 10.30pm 15 May 2019 police observe CHEN and XIAO in the company of Hyeon Joon CHOI and LEUNG. They first meet each other at the Meet Fresh Café on the corner of Dixon Street and Goulburn Street, Haymarket. They walk to various business establishments and locations throughout the Chinatown precinct of the Sydney CBD before separating at 10:30pm.
6. At 6:30pm on 4 July 2019 CHEN is seen arriving at Gow Street, Birchgrove in BIV39L. CHEN enters 22/2-8 Water Street, Birchgrove. At 7:32pm CHEN leaves unit 22/2-8 Water Street and returns to BIV39L. CHEN travels away from Gow Street, Birchgrove before returning [to] Gow Street and re-entering unit 22/2-8 Water Street, Birchgrove at 7:40pm. At 7:45pm CHEN is seen leaving unit 22 and returns to BIV39L.
7. CHEN leaves the Birchgrove area and BIV39L is observed driving across the ANZAC bridge at slow speed and erratically changing lanes. Police subsequently charged CHEN with possession of 3.2 grams of heroin and driving with illicit substance in blood. During the search of BIV39L police located a set of house keys to the car keys for BIV39L. Attached to the House keys was a tag labelled '426A King Georges road, Beverly hills'.
8. In a conversation on 6 July CHEN and XIAO discuss meeting someone at a pet store later that day. Vehicle BIV39L was observed attending the area of Pawfect Doggy Day Spa, 485 Darling Street, Balmain. XIAO tells CHEN the person they are meeting with today rents a pet shop. CHEN and XIAO [arrive] in the area of the pet store at approximately 3:37pm. XIAO is speaking to a female on the phone. Both CHEN and XIAO travel further along the road and stop in the area of 450 Darling Street.
9. Call charge records for XIAO's mobile phone service indicate it was connected to LEUNG's phone on the following occasions on 6 July 2019:
Time (Sydney Local Time) Duration (seconds)
2:09:02pm 93
2:09:14 16
3:11pm 68
3:45pm 29
[2]
At 9.19pm on 29 August 2019 XIAO gives CHEN a phone number to call, [ending 88]. This number is registered to CHOI. At about 10pm on 29 August 2019 the Korean Man attends CHEN's home XIAO calls CHEN to tell him that the Korean person has told her he is outside.
11. Call Charge records from LEUNG's mobile phone service indicate it was connected to XIAO's mobile phone service on the following occasions:
Date Time (Sydney local time) Duration (seconds)
24/4/19 1:49pm 1
25/4/19 12:33pm 3
12:33pm 14
27/4/19 5:17pm 5
5:18pm 52
5:30pm 12
28/4/19 6:10pm 2
6:22pm 19
2/5/19 5:47pm 52
9/5/19 6:24pm 110
6:27pm 1
6:28pm 33
10/5/19 6:17pm 31
21/5/19 8:42pm 66
21/6/19 12:03pm 35
6:35pm 137
7:35pm 28
8:38pm 18
8:38pm 2
8:39pm 18
30/6/19 12:35pm 80
6/7/19 3:11pm 67
[3]
On 3 September 2019 police were granted Criminal Organisation Search Warrants on several locations associated with CHEN and his associates. On 4 September 2019 police attended Unit 22/2-8 Water Street, Birchgrove NSW and forced entry pursuant to the warrant".
It can be seen, therefore, that Strike Force Pickle commenced with investigation into the activities of Chen, Xiao and Maggs, and that led to the police becoming aware of Choi, who's domestic partner was the First Applicant, and that eventually led to the issue of a Criminal Organisation Search Warrant for the premises at Water Street, Birchgrove, which was executed on 4 September 2019 ("the COSW"). There is no suggestion that the telephone communications between Xiao and the First Applicant had any sinister connotation. It would appear just on what I have quoted that the COSW was the result of Choi being seen as an associate of, inter alia, Chen. However, when the COSW was executed Choi was not present at the premises at Water Street, Birchgrove. According to what the First Applicant told the police, she had last seen him on the morning of 3 September 2019. One wonders whether he may have been told by somebody that a COSW had been issued.
Choi remained at large until he was arrested, during the trial that I conducted commencing on 5 April this year. If my recollection serve me correctly, he was arrested on or about 7 April 2022. He was found with a large amount of illicit substances and almost $5 million in Australian cash.
During the search of the premises at Water Street, Birchgrove, police found a large amount of drugs and equipment which is highly likely to have been used for the "manufacture" of cocaine. I have used the word "manufacture" in inverted commas because that term is defined in the Drug Misuse and Trafficking Act 1985 to include the extraction or refining of an illicit substance. The evidence strongly says that cocaine was being imported into Australia, impregnated in paper, and that the equipment found in the premises at Birchgrove was being used to extract the cocaine from the paper.
The modus operandi appears to be that the paper was shredded, then placed in buckets with an alcohol, isopropanol, which extracted the cocaine from the paper. The subsequent liquid was poured into a still which was used to drive off the alcohol leaving a substance which might be described as cocaine. However, it would appear that that cocaine needed further dehydration which could be done in a number of ways. One way was to place the semi-solid, if that be the correct description of the final product from distillation, and to heat it, driving off further liquid until it became a solid. Another way may have been the use of a dehydrating machine, which may have been used to dehydrate a semi-solid substance further such that it became a powder.
An indictment was presented to me on 5 April 2022. At the request of each of the applicants and the Crown, I made an order for the trial of the proceedings by a judge alone. There were eight counts in the indictment. Count 1 and counts 4, 5, 6, 7 and 8 all named the Second Applicant as the accused. Counts 2 and 3 named the First Applicant as the accused, but count 3 was in the alternative to count 2. The First Applicant was also named as an accused in respect of counts 4, 5, 6 and 7. Obviously from what I have just said, counts 1 and 8 were solely against the Second Applicant.
The trial was lengthier than anticipated because of attempts made by the Crown to adduce evidence which was opposed by the applicants. I commenced giving my reasons on the morning of Thursday 28 April 2022. On the afternoon of 29 April 2022, I acquitted the Second Applicant on counts 1, 4, 6, 7 and 8. In respect of count 5, I found him not guilty as charged but guilty of a statutory alternative count. Count 5 was in these terms:
"on 4 September 2019, at Birchgrove in the State of New South Wales, did supply an amount of prohibited drug, namely, 3,4-methylenedioxymethylamphetamine being an amount which was not less than the large commercial quantity applicable to that prohibited drug."
As I said, I found him not guilty as charged but guilty of an offence that on 4 September 2019, at Birchgrove, he did supply a trafficable quantity of the prohibited drug 3,4-methylenedioxidemethylamphetamine.
I then continued the judgment as against the First Applicant. At 4pm on 29 April 2022 the matter was adjourned until 2pm on 9 May 2022. The reason for that adjournment, being that I was rostered to sit in Orange during the week commencing Monday 2 May 2022. On 9 May I could not attend to the matter until 2pm because of a personal medical commitment, and the need to call over the Special Statutory Compensatory List which was a pre-commitment that I had organised in 2021.
On the afternoon of 9 May 2021, I found the First Applicant not guilty of each of the counts in the indictment that concerned her. On 10 May 2022, I dealt with matters on s 166 certificates concerning both applicants and dealt with the Second Applicant by way of sentence for the statutory alternative count for which I had found him guilty. In the end, both applicants were given the benefit of a s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.
[4]
The indictment
Count 1 in the indictment was an allegation that between 5 April 2018 and 5 September 2019 at the premises in Water Street, Birchgrove, the Second Applicant manufactured the prohibited drug cocaine in not less than the commercial quantity of that drug. The total amount of that drug found in the premises was 789.01 grams, and the Crown alleged that was the amount of cocaine that had been manufactured at the premises.
A problem with the allegation contained in the indictment is that, as far as the Second Applicant was concerned, that had to be read down to a period between the 30 July 2019 and 4 September 2019. He returned to Australia from overseas on 30 July 2019 and was accommodated at the premises in Water Street as a result of his friendship with, at least, the First Applicant. He was arrested at the premises on 4 September 2019, so he could not have manufactured any drug on 5 September 2019. He would have been a prisoner on that day.
The allegation in Count 2 of the indictment was that the First Applicant, between 5 April 2018 and 5 September 2019, knowingly took part in the manufacture of that amount of cocaine, 789.01 grams, which was not less than the commercial quantity of that drug. The Crown's allegation there was that, as a resident in the premises, she permitted or suffered the manufacturing to take place.
Count 3 in the indictment was an allegation of an offence contrary to s 316(1) of the Crimes Act 1900 that the First Applicant, knowing or believing that a serious indictable offence had been committed, namely, the manufacture of the prohibited drug cocaine in not less than the commercial quantity, and believing that she had information that might be of material assistance in securing the apprehension, prosecution or conviction of an offender for that offence, without reasonable excuse, failed to bring that information to the attention of a member of the NSW Police Force. The allegation there was that the First Applicant knew or believed that either the Second Applicant or Choi had carried out the manufacture at the premises at Birchgrove.
Count 4 was an allegation of the supply of cocaine, being the same amount that was alleged to have been manufactured at the premises, namely 789.1 grams. The Crown relied upon the deeming provision in the Drug Misuse and Trafficking Act, s 29.
Count 4 resulted from the finding by the police within the premises of 783.61 grams of the drug 3,4-methylenedioxymethylamphetamine, commonly known as MDMA or ecstasy, and that both applicants were guilty of the offence of deemed supply of that prohibited drug. The amount of MDMA was 1,406.62 grams.
Count 6 arose from the fact that, at the time of the execution of the COSW, police found on the premises 783.61 grams of methylamphetamine that led to both applicants being charged with the deemed supply of that amount of that prohibited drug.
Count 7 arose from the fact that, at the time of the execution of the COSW, the police found, in the laundry of the home unit, 236.26 grams of heroin and each applicant was charged with the deemed supply of that amount of that prohibited drug.
Count 8 arose from the fact that police found in the bedroom being used by the Second Applicant a small jerry can containing 3.014 kilograms of the prohibited drug gamma-Butyrolactone ("GBL").
[5]
The evidence
The case against each of the applicants was wholly circumstantial, arising in essence from the evidence that the police found when the COSW was executed on 4 September 2019.
As far as the First Applicant was concerned, there were two items of DNA evidence relied upon by the Crown. The first were found in what is described as a "red enviro bag" which was found in bedroom three. That was, in fact, a red Liquorland fabric bag, a bag designed to hold six bottles of wine. The DNA recovered from the handles of that bag originated from at least three people. One was Choi and another was the First Applicant.
The report of the DNA expert, Ms Mhorag Elizabeth Campbell, which was Exhibit 5, tells me that it was greater than 100 billion times more likely to obtain that mixed profile if it originated from the First Applicant and two unknown unrelated individuals rather than if it originated from three unknown unrelated individuals in the Australian population.
The third contributor to that DNA could not be ascertained from the material available. However, as I have pointed out in the principal judgment, it is quite possible that DNA was deposited on the handles of the red Liquorland bag when the red Liquorland bag was being used lawfully for its obvious purpose, or some similar lawful purpose.
The other item of DNA evidence relied upon was the finding of a partial DNA profile having the same profile as that of the First Applicant found within the interior of a rubber glove that was found on the laundry sink. It was a sort of rubber glove that can be used by those doing the washing-up or cleaning. As I pointed out in R v Leung; R v Webster (No. 4) [2022] NSWDC 553, one might use such a rubber glove to clean, inter alia, the laundry, which included a toilet and a washbasin of the type that is commonly found with a toilet to allow the person who has used the toilet to wash hands. The rubber glove could have been used for a lawful purpose of such a nature. Furthermore, no illicit substance was found on the rubber glove. The DNA evidence did not assist the Crown.
There was also called in evidence an expert in fingerprints, that was, Mr Glen Leechburch Auwers, whose reports became Exhibit 9, that identified the left little fingerprint of the First Applicant on an empty container, and inconclusive fingerprints which might have been attributed to the First Applicant on the same item. That, of course, does not prove anything relevant to the case. Containers are commonly found in households and can be used to contain many different things, including, as the evidence establishes here, foodstuffs and skin and hair products, and often medication or similar things for everyday, ordinary, lawful consumption.
There was no admission by the First Applicant. She was a lady of prior good character. There was absolutely nothing linking her to the control of the drugs found in the premises, or to any manufacture of cocaine other than the fact that it was alleged to have been carried out at the premises at Birchgrove where she stayed for one and a half years prior to her arrest on 4 September 2019, as a result of her intimate relationship with a man known as Hyeon Joon Choi, or John Choi. She paid no rent to Mr Choi. She was only there by the grace and favour of Mr Choi. If her relationship with him broke down, she had no right to stay at the premises at Birchgrove unless she could come to some other arrangement with Mr Choi such as occupying the "spare bedroom", known as bedroom three, and paying rent to Mr Choi. She had no right of control over the premises. She was not the tenant. She paid no rent to the actual tenant whom was Mr Choi. She had no right to exclude anyone who he wished to admit to the premises, and she had no right to control what he and his invitees might have done at the premises. She had no legal right to control what happened there.
The case against her was based mainly on suspicion. Indeed, one could say almost solely on suspicion that she must have known what was happening and, therefore, she permitted the manufacture of the drugs at the premises or, she knowing about them, failed to advise the authorities of what was happening, as I pointed out in R v Leung; R v Webster (No. 4) [2022] NSWDC 553.
She was a Qantas international cabin staff crew member until 5 June 2019. She was regularly leaving Australia in the course of her work, and returning to Australia a number of days later. For example, she left Australia on 3 January 2018 and returned to Australia on 6 January 2018. She then left Australia on 9 January 2018 and returned on 11 January 2018. Her travel movements are recorded on Exhibit 18, which I do not need to discuss any further. One can clearly see the pattern emerging for a member of the international cabin crew regularly coming to and going from this country because of her employment.
The other thing is that, after 5 June 2019, she took leave from her work to concentrate on her dog grooming business, which included selling dog consumables, namely, a form of dog jerky as treats for pampered hounds.
She would not have known what was going on at the premises at Birchgrove when she was absent in the course of her employment.
As I pointed out in R v Leung; R v Webster (No. 4) [2022] NSWDC 553, there is no evidence that would allow one to infer as to whether she was an inquisitive person who may have enquired what her boyfriend, Mr Choi, was up to, or whether she took any notice of what he was doing. There is no evidence linking her to any of the drugs found in the premises. The inference to be drawn is that it is highly likely that was part of Mr Choi's criminal undertaking for which he had a criminal history.
There is also reference in the evidence to his having an affiliation or having an association with other known criminals. Paul Edward McCormick and Luke Yeom, whose DNA and fingerprints were found, inter alia, in various parts of the premises.
Really, the Crown's evidence did not go beyond what the Crown itself led. Neither of the applicants gave evidence. Some documentary evidence was tendered on their behalf, but there is no viva voce evidence which would require the Court to consider questions of credibility and the like. The mere fact that the First Applicant lived in premises on which drugs were found did not establish that she had dominion and therefore control over them and, therefore, was in a position to traffic them, that is, that the deeming provision in s 29 Drug Misuse and Trafficking Act 1985 would apply to her. Before that, the Crown must prove beyond reasonable doubt that she knew of the existence of the drugs in the premises and suffered or permitted them to remain there such that she could be seen to be in control of them. In my view, the case against the First Applicant was doomed from the very beginning to failure.
[6]
The law
The task which I must perform has been recently succinctly stated in a joint judgment of the Court of Criminal Appeal (Payne JA, Rothman and Bellew JJ) in Higgins v R (No 2) [2022] NSWCCA 82. Rather than leaving it to my poor ability to succinctly state the law I shall quote from that judgment:
"5. The Costs Act provides one means by which a defendant to criminal proceedings can recover legal costs where they are successful in those proceedings. Its purpose is to relieve a person who has been acquitted of the financial burden of defending themselves in criminal proceedings, but without casting any criticism on police or prosecutors: Steven Alan Cox v R (No 2) [2017] NSWCCA 129 at [4(3)]; see also Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 561-562 (Kirby P, Meagher and Handley JJA agreeing).
6. The Act establishes a two-stage process by which the defendant first applies to the Court for a certificate, and then applies to the Director-General for payment of costs incurred in the proceedings to which the certificate relates.
7. Sections 2 and 3 of the Act govern the first stage relating to the granting of a certificate by the Court. Those provisions relevantly provide:
2 Certificate may be granted
(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may -
(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or
(b) where, on appeal, the conviction of the defendant is quashed and -
(i) the defendant is discharged as to the indictment upon which he or she was convicted, or
(ii) the information or complaint upon which the defendant was convicted is dismissed,
grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.
…
3 Form of certificate
(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate -
(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and
(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.
(2) (Repealed)
8. A certificate is not to be granted unless the Court is satisfied as to each of the matters specified in s 3(1), namely that it would have been unreasonable for the prosecution to institute proceedings if it had been in possession of evidence of all of the relevant facts, and that any act or omission of the defendant which contributed to the initiation or continuation of the proceedings was reasonable. The applicant bears the onus of satisfying the Court to this effect: Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510 at [36(d)].
9. The phrase "all the relevant facts" as employed at s 3(1)(a) is relevantly defined in s 3A of the Act as follows:
3A Evidence of further relevant facts may be adduced
(1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3(1)(a) to all the relevant facts is a reference to -
(a) the relevant facts established in the proceedings, and
(b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and
(c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that -
(i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and
(ii) were not adduced in the proceedings.
…
10. The task of the Court, in relation to s 3(1)(a), is to answer a hypothetical question addressed to evidence of "all of the relevant facts", whether those facts were discovered before the applicant's arrest and committal, after his committal and before trial, during the trial, or afterwards admitted under s 3A: Allerton at 559-560; Beatson v R [2015] NSWCCA 17 at [10]."
[7]
Consideration
Clearly, I am required to find that the First Applicant has proved on the balance of probabilities that if the prosecution had before proceedings been instituted, possession of the evidence of all the relevant facts, it would not have been reasonable to institute the proceedings. I so find.
The second leg of s 3(1) of the Costs in Criminal Cases Act 1967 as to whether there was any act or omission of the defendant that contributed or might have contributed to the institution or continuation of the proceedings does not, in my view, arise on the evidence before me, nor was there any submission made by the Crown to that effect. I, therefore, am persuaded that this is a case in which, after the First Applicant was acquitted in relation to the offences charged against her, that she is entitled to be granted a certificate under the Costs in Criminal Cases Act 1967.
[8]
Order
Accordingly, I grant a certificate in accordance with ss 2 and 3 of the Costs in Criminal Cases Act 1967. I am of the opinion that:
1. if the prosecution had, before the proceedings were instituted, being in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings; and
2. that any act or omission of the First Applicant that contributed or might have contributed to the institution of proceedings was reasonable in the circumstances.
[9]
The Second Applicant
I turn now to the application made by the Second Applicant.
[10]
Why the Second Applicant was at the Birchgrove Premises
The evidence against Second Applicant was greater than the evidence against the First Applicant, subject to this. As I have already said, the Second Applicant was travelling overseas between either 15 and 16 June 2019, returning to Sydney on 30 July 2019. He asked the First Applicant whether he could stay with her at the Birchgrove premises for about a month. She permitted him to do so. He was staying in a bedroom known as bedroom 2. By staying there, I mean that that is the room in which he was sleeping and in which kept his personal effects.
[11]
Bedroom 2
From R v Leung; R v Webster (No. 4) [2022] NSWDC 553 one must recall that there were other items in bedroom 2 which I was not persuaded belonged to him, in particular a rack of female clothing, certain storage bins containing large numbers of either paper towels or used shopping bags, and the small 5 litre jerry can which contained the liquid drug known as gamma-Butyrolactone.
[12]
The dates in which the Second Applicant stayed at the Birchgrove Premises
The Crown had initially alleged that the manufacturing in which he was involved was between 5 April 2018 and 5 September 2019. The Crown sought to adduce evidence that, commencing on 5 April 2018, the Second Applicant had commenced paying rent to Mr Choi. However, as I recall the evidence, that did not extend into 2019. Evidence given at the sentencing hearing of the Second Applicant indicated that before going overseas in mid-June 2019, he had been staying at premises in Bondi Junction and he could not return there because his room had been let by his landlord to another and he needed to stay temporarily at the Birchgrove premises until such time as he could return to the premises in which he had been living in Bondi Junction, which appears from the evidence, as I understand it, to have been convenient to the restaurant in the Eastern Suburbs where he found work after his return from overseas. In other words, the evidence suggests that the Second Applicant may have been a resident of the premises in Birchgrove between 5 April 2018 and the end of that year, but not during the first half of 2019 until 30 July 2019. Therefore, his knowledge of the premises would have been more limited than that of the Second Applicant.
[13]
Finding of the statutory alternative
As I have said in respect of count 5 in the indictment, I found the Second Applicant not guilty as charged but guilty of a statutory alternative count. As I have already mentioned, the allegation was of his being involved in the deemed supply of a large commercial quantity of 3,4-Methylenedioxymethamphetamine. The maximum penalty for that offence is imprisonment for life. The statutory alternative count of which I found him guilty, being involved in the supply of a trafficable quantity of the drug, carried a maximum penalty of fifteen years imprisonment. As I pointed out in the sentencing hearing on the statistics kept by the Judicial Commission both for offences heard in the Local Court and for offences where the sentence was imposed by this Court, it is unlikely that the Second Applicant would have been sentenced to full-time custody. However, by the time that he stood for sentence, he had spent almost two years and eight months in full time custody.
[14]
Parity between the applicants?
Leaving that discrimen between the applicants to one side, there was greater evidence against the Second Applicant than there was against First Applicant.
[15]
The DNA evidence
I am acutely aware of the subtleties that ought be employed when referring to DNA evidence. However, for current purposes, I shall eschew the subtleties involved and just refer to his DNA being present. His DNA was found present on the interior of a half face respirator, and from the interior strap of the safety goggles which were found in the laundry of the premises together with a large amount of equipment would strongly suggest was being used for the extraction of cocaine from paper.
As I pointed out in R v Leung; R v Webster (No. 4) [2022] NSWDC 553 the half face respirator and the safety goggles appear to be brand new. His DNA was found on police exhibit XF000929199 the lid of a container. That is referred to in Agreed Fact 14.1.1, as a plastic container containing 85.5 grams of cocaine found in the kitchen.
[16]
The fingerprint evidence
On the same plastic container was found a fingerprint which was identified as Webster's right palm print. Webster was unable to be either identified or excluded as the source of two other fingerprints found on the exterior surface of that container.
Webster's left ring finger and left palm print were found on the exterior side of what is described in the report of the fingerprint expert as a "stainless steel vessel". That I understand to be the Stainless Steel Still that had been used, most probably, to drive off isopropanol from a mixture of that alcohol and paper infused-with cocaine, that Still having been found in the laundry. Webster's fingerprints were also found on a plastic container containing an off-white crystalline substance. They were also found on other containers found in the kitchen and laundry. I need not go through all of them.
Finally, his right index fingerprint was found on the exterior side of a paper shredder which was found in the spare bedroom, bedroom 3. It is clear that the paper shredder had been used to shred paper impregnated with cocaine because traces of such paper were found on forensic examination of the paper shredder. However, the one fingerprint identified was far from the area that might be described as the "business end" of the paper shredder, that is, where one would insert paper into the paper shredder, and rather was consistent with his either having touched it or picked it up or moved it in some fashion when it was in bedroom 3, or in the process of taking it from where it may have been prior to where it was found in bedroom 3 at the time of the execution of the search warrant.
As I pointed out in the principal judgment, there are innocent explanations for his fingerprints being found on a large number of items, innocent explanations consistent with his not being guilty of the offence.
[17]
Innocent explanations consistent with innocence
The major problem with the first count in the indictment was that there was extremely little evidence to link the manufacture of cocaine to the Birchgrove premises. True it is that there was a kit found in the premises, mainly in, and packed up in, the laundry, which could be used for extracting cocaine from paper in the manner identified by Dr Coghlan, an eminent chemist called in the Crown case. But according to Dr Coghlan's evidence in chief, in any event, there was nothing to link the manufacture of cocaine using the material found in the house to the process being carried on in those premises at Birchgrove.
The one exception to that was ascertained in cross-examination by counsel for the Second Applicant, namely, there was some cocaine found in an extraction fan in the laundry, but the amount of the drug found in the extraction fan in the laundry is unknown. It may have only been a trace, it may not have been saturated, and there might be innocent reasons for why cocaine could be found in an extraction fan. For example, this may be because somebody may have smoked cocaine in the laundry, perhaps at a time that the door was closed when an outsider might think that the occupier of the laundry was using the toilet. There were, in addition, other reasons why the cocaine might be found in a small quantity in the extraction fan.
Ultimately, I could not be satisfied beyond reasonable doubt that the manufacturing process had been carried out at 22/2-8 Water Street, Birchgrove, which was the Crown's allegation. The finding of the material both in the laundry, and certain items in bedroom 3, were consistent with the kit being used elsewhere and having been stored in the property at Birchgrove.
The finding of the fingerprints of the Second Applicant on the Still might be consistent with his having moved it in the course of transferring the equipment from one place to another, but that does not mean that the fingerprints were placed on the Still either when it was in use, and particularly when it was in use at the premises at Birchgrove.
Like the First Applicant, the Second Applicant was a person of prior good character. There is no evidence to link him with Mr Choi and the others that generated interest in the police in Strike Force Pickle, and the real gravamen of the Crown case is really suspicion that, because he was temporarily residing at the premises, he had some connection with the drugs that were found stored there and the kit found stored there. Rather, the more plausible explanation is that it might wholly be attributable to Mr Choi and, as a guest at the premises, there was nothing the Second Applicant might do which could have, for example, permitted him to dispose of illicit drugs or the kit.
Indeed, if he had interfered with the illicit drugs or the kit he may well have found himself in much greater danger than that in which he found himself whilst incarcerated in New South Wales Correctional Centres for the best part of two years and eight months.
Again, I am of the opinion that if the prosecution had, before the proceedings were instituted, been in possession of all the evidence currently available to me, it would not have been unreasonable to institute the proceedings against the Second Applicant. He therefore, in my view, like the First Applicant, is entitled to a certificate under s 2 of the Costs in Criminal Cases Act 1967.
There is only one question of interpretation which arises here. Although he was not charged with deemed supply of a traffickable quantity of the 3,4-methylenedioxymethamphetamine, that was a statutory alternative count of which I found him guilty. However, when one reads closely the terms the Costs in Criminal Cases Act 1967, one can see that s 2(1)(a) speaks of the commencement of a trial in proceedings:
"where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned…"
Here, the Second Applicant was acquitted of the offence concerned, that is, of the offence of supplying an amount of the prohibited drug 3,4-methylenedioxymethamphetamine which was not less than the large commercial quantity. That was the offence with which he was charged, and of that charge he was found not guilty and therefore he was entitled to be acquitted of that charge, but, in the alternative, I found him guilty of a lesser charge. In my view that finding of guilt on a statutory alternative count does not prevent the granting of the certificate sought by the Second Applicant.
[18]
Order
Accordingly, I grant a certificate in accordance with s 2 and 3 of the Costs in Criminal Cases Act 1967. I am of the opinion that:
1. if the prosecution had, before the proceedings were instituted, being in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings; and
2. that any act or omission of the Second Applicant that contributed or might have contributed to the institution of proceedings was reasonable in the circumstances.
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Decision last updated: 14 November 2022