Davies, Williams and Jerrard JJAJudgment of the, Court
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER
CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – JOINT TRIAL OF
SEVERAL PERSONS – where appellant gave evidence
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTERCONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – JOINT TRIAL OFSEVERAL PERSONS – where appellant gave evidenceagainst co-accused –where “accomplice warning” given – where trial judge did notdirect the jury that thewarning given applied only to the jury’sconsideration of the case against the co-accused and not in the case against theappellant– whether trial judge failed to maintain the balance inaccordance with the reasoning in Webb v The Queen – whethermisdirection occasioned a substantial miscarriage of justice – whetherappellant lost a chance of acquittalfairly openCRIMINAL LAW –JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT –SENTENCE – FACTORS TO BE TAKENINTO ACCOUNT – CIRCUMSTANCES OFOFFENCE – where appellant convicted of one count of trafficking inmethylamphetamine
and other drug related offences including production of
methylamphetamine after a trial – where appellant received a head sentence
of 18 years imprisonment – where trafficking occurred over a period of 20
months – whether sentence manifestly excessive
R v Allen & Edwards [1973] Qd R 395, citedR v Barrow
[1999] QCA 56
[2001] 2 Qd R 525, citedR v Christensen [2002] QCA 113
CA No 313 of 2001, CA No 314 of 2001, 22 March 2002, citedR v
Johnston [2004] NSWCCA 58
CA No 60250 of 2002, 18 March 2004,
considered
R v Lewis and Baira [1996] QCA 405
CA No 252 of 1996, CA No 253 of
1996, CA No 290 of 1996, 18 October 1996, citedR v Walton CA No 257
of 1989, 22 November 1991, citedRobinson v The Queen [1991] HCA 38
(1991) 180 CLR
531, appliedWebb v The Queen [1994] HCA 30
(1994) 181 CLR 41, applied
Judgment (62 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] THE COURT: On 21 November 2003 Dennis Lowe was convicted after a trial of a number of serious drug related charges, and sentenced to 18 years imprisonment. He appealed against the convictions, and sought leave to appeal against the sentences. He abandoned the ground of appeal that the verdict was "unsafe and unsatisfactory", and the sole ground of appeal against conviction concerns directions given to the jury regarding evidence Mr Lowe gave in his trial, which by inference blamed his co-accused Erik Zagata for the commission of some of the offences with which Mr Lowe was charged. His complaint regarding the sentences imposed is that a sentence of 18 years imprisonment, of which he will have to serve 80 per cent, is manifestly excessive given that the maximum possible term was 20 years, and that he was aged 53 and in indifferent health when sentenced. He also complains of the imposition of an 18 year concurrent term on count 9, when the maximum penalty was 15 years.
[3]
[2] Mr Lowe was convicted of trafficking in the dangerous drug methylamphetamine between 6 May 1999 and 30 November 2000 at Canungra, Beaudesert and elsewhere in Queensland (count 1); of production of the dangerous drug amphetamine at Canungra between those dates (count 2); on two separate counts which each alleged the production of in excess of two grams of the dangerous drug methylamphetamine at Canungra between those dates (counts 3 and 4); of receiving a sum of money obtained from trafficking in a dangerous drug on 28 March 2000 at the Gold Coast, believing that money to have been obtained from the trafficking (count 5); of possessing a sum of money on 13 July 2000 at Goondiwindi obtained from trafficking in a dangerous drug, believing it to have been obtained from the trafficking (count 6); of receiving a sum of money on 19 August 2000 at Beaudesert obtained from trafficking in a dangerous drug, believing it to have been obtained from the trafficking (count 7); of possessing in excess of two grams of the dangerous drug methylamphetamine on 29 November 2000 at Beaudesert (count 8); of possessing things at Beaudesert on 29 November 2000 which had been used in connection with producing a dangerous drug (count 9); and of possessing things on 1 December 2000 at Loganholme that had been used in connection with producing a dangerous drug (count 10). His co-accused Erik Zagata was convicted on counts equivalent to counts 3 and 4, but those convictions were set aside by this court on 24 September 2004.[1]
[4]
[3] In the early part of the summing-up the learned trial judge dealt with the evidence of the prosecution witness Greenup, who had pleaded guilty to and been sentenced for crimes which arose out of the same events for which the appellant and Zagata were on trial. She noted that throughout the trial "there has been a lot of emphasis upon him". Thereafter the summing-up proceeded:
[5]
"You must not consider that guilty plea as any evidence of these defendants' guilt, but you may consider it only for the limited purpose of determining how much, if at all, to rely upon Mr Greenup's testimony.
[6]
You should, of course, approach your assessment of the evidence of Mr Greenup with caution. A person who has been involved in an offence may have reasons of self interest to lie or to falsely implicate another in the commission of an offence. The evidence of such a person is, by its nature, potentially unreliable, and it is therefore necessary for you to scrutinise the evidence carefully before you act on it. Mr Greenup, having been involved in these drug offences, is likely to be a person of bad character. For these reasons his evidence may be unreliable and untrustworthy. Moreover, he may have sought to justify his conduct, or at least to minimise his involvement, by shifting the blame wholly or partly to others.
[7]
Perhaps he sought to implicate the defendants and give untruthful evidence because he apprehends he has something to gain from doing so. ...
[8]
... You should, as I said, scrutinise his evidence with great care. You should only act on it after considering it and all the other evidence in this case if you are convinced of its truth and accuracy.
[9]
It would be dangerous to convict either defendant based on the evidence of Mr Greenup alone unless you find his evidence is supported in material ways by independent evidence implicating the defendants in the offences."
[10]
[4] Nothing in that passage was challenged on the hearing of the appeal. What gave rise to the ground of appeal relied on by the appellant was the passage which came shortly afterwards in the summing-up. The passage in question was in the following terms:
[11]
"But it is the case that what Mr Lowe has said while giving evidence may be used not only for or against him but also for or against Mr Zagata. However, the extent to which that evidence implicates, to the extent that that implicates Mr Zagata in the offences, again scrutinise it carefully. There is a danger that in implicating Mr Zagata or Mr Greenup Mr Lowe may have been concerned to shift the blame."
[12]
[5] Senior counsel conceded that the first sentence in that passage was unexceptional. The attack was directed at the second and third sentences. In doing so counsel relied heavily on the use in each of the extracts quoted an exhortation to "scrutinise the evidence carefully" in the context of the witness "shifting the blame". Further the use of the word "again" in the second sentence of the latter extract could only be taken by the jury as a reference back to the approach to be taken to the evidence of Greenup as detailed in the first extract.
[13]
[6] The submission on behalf of Lowe is that the second and third sentences in the latter extract, particularly when read in conjunction with the contents of the first extract, prejudiced Lowe's defence and offended the principle underlying the decision of the High Court in Webb v The Queen[1994] HCA 30; (1994) 181 CLR 41. Specifically it was submitted that the learned trial judge effectively directed the jury that they should scrutinise the evidence of Lowe in his own defence more carefully than that of other witnesses and thus the direction undermined the presumption of innocence: Robinson v The Queen[1991] HCA 38; (1991) 180 CLR 531.
[14]
[7] In Webb, Toohey J (with whom Mason CJ, McHugh and Deane JJ agreed) held that the accomplice direction as ultimately amended by the learned trial judge in that case did not result in a substantial miscarriage of justice. Brennan J applied a somewhat stricter test, though not different in principle, and concluded that the misdirection inherent in the accomplice direction necessitated setting aside the conviction.
[15]
[8] When the case was before the South Australian Court of Criminal Appeal King CJ said: "In the classic formulation of the rule requiring a warning that it is dangerous to convict on the uncorroborated evidence of an accomplice, the requirement is confined to the evidence of a witness for the prosecution": (1992) 59 SASR 563 at 581. That passage was quoted with approval by Toohey J at 93. His Honour then noted a divergence of opinion in Australian and overseas jurisdictions on the question. Ultimately the decision of the High Court establishes that the correct approach was that taken by the New South Wales Court of Criminal Appeal in Henning (unreported: 11 May 1990). The critical passage, quoted by Toohey J at 94 and Deane J at 81, is in these terms:
[16]
"But different principles apply when the supposed accomplice who gives evidence against a co-accused is himself an accused giving evidence in his own case. It would be difficult indeed to seek to apply inflexible rules to such situations. For the interests of justice will almost certainly require different responses in different circumstances. Considerable latitude must be allowed in order to enable trial judges to address the situation in a manner which will adapt to the competing interests in the particular case."
[17]
[9] After referring to the directions given in that case Toohey J went on at 95:
[18]
"The problem is whether, in so directing the jury, his Honour placed the evidence of Hay in a disadvantaged position. He had to maintain a balance between the interests of Webb on the one hand and Hay on the other. This ground of appeal can only succeed if it is shown that his Honour failed to maintain that balance and that, as a result, Hay suffered a substantial miscarriage of justice.
[19]
I am not persuaded that she did suffer a substantial miscarriage of justice. His Honour had to say something about the use of Hay's evidence against Webb. This he did. The earlier direction, to which reference has been made, went further and tended to focus unduly on Hay's playing down of her own role in the killing of the deceased. But that was corrected by redirection. Overall, the jury were sufficiently alerted to how they should regard Hay's evidence both as it bore on her own defence and as it implicated Webb.
[20]
Clearly Hay was, on her own evidence, an accomplice to the killing of the deceased. It is hard to see how she could have been unduly prejudiced by his Honour's invitation to the jury to treat her as such. In all the circumstances this was probably a preferable course to instructing the jury that, in relation to Hay's evidence implicating Webb, they should first determine whether she was an accomplice and then, in relation to the case against her, decide on the criminal onus of proof whether she was guilty of murder. However, it would have been better still to avoid any reference to accomplice and deal with the strengths and weaknesses of the evidence generally."
[21]
[10] In his reasons for agreeing with Toohey J on this point Deane J at 81:
[22]
"If, in such a case, a trial judge considers it necessary or appropriate to give an "accomplice warning" to protect a co-accused, the critical thing is that it be made clear that the relevant comments relate only to the use of the evidence as against the co-accused. ... It is true that, at an earlier stage of his summing up, the trial judge had given a direction which offended against what was said by this court in Robinson v. The Queen. The error involved in that direction was, however, adequately corrected by the redirection which his Honour subsequently gave."
[23]
[11] The relevant extracts from the summing-up in that case are fully set out in the reasons for judgment of Brennan J. As is demonstrated by those reasons the initial direction was clearly contrary to the principles stated in Robinson v The Queen because it was broad enough to apply to the accused's evidence in his own case. His Honour in that regard cited a further passage from the judgment in Henning to the following effect: "It must be made clear to the jury that the warning is to be applied only when they are considering the case against the co-accused. It must not be left open to them to believe that the warning might attach to the accused's evidence in his own case."
[24]
[12] Ultimately Brennan J expressed the view that "it is generally preferable not to give an accomplice warning in respect of that evidence unless, in the particular circumstances, the trial judge is of the opinion that the jury might fail to appreciate the risk of acting on that evidence against the co-accused. In such a case, the distinction drawn in Henning must be carefully explained to the jury." (66 - 7). Against that background Brennan J concluded that an accomplice warning should not have been given in the case in question, and that is why he was of the view that the conviction should be quashed.
[25]
[13] In holding that in similar circumstances an accomplice warning had to be given the Court of Criminal Appeal in R v Allen & Edwards[1973] Qd R 395 was largely influenced by s 632 of the Criminal Code, as it then stood, which provided that a person could not be convicted of an offence on the uncorroborated testimony of an accomplice. That provision has now been repealed and the law in Queensland must now be taken to be as stated by the High Court in Webb.
[26]
[14] Following Webb it is clear that a trial judge has a discretion, given the circumstances of the particular case, to give an accomplice warning with respect to the evidence given by an accused which implicates a co-accused. But what the reasoning of all the judges in Webb makes clear is that, if such a warning is given, there is an obligation on the trial judge to make it clear that the warning only relates to the use of the evidence as against the co-accused; it must be made clear that the warning has no application to the evidence of the accused in question in his own defence. In order to achieve that balance it will often be necessary for the trial judge to identify that part of the accused's evidence which is the subject of the warning.
[27]
[15] The real problem in the instant case is that virtually nothing said by Lowe in the course of his giving evidence implicated Zagata, that is, was probative of Zagata's guilt with respect to the charges he faced. In that context, particularly without any attempt by the learned trial judge to identify evidence implicating Zagata to which the warning might apply and without any direction that the warning did not apply to evidence in his own defence, the jury could only treat the direction as applying generally to the evidence of Lowe.
[28]
[16] The reference to Greenup in the last sentence of the second extract quoted from the summing-up was also unfortunate. Greenup was not on trial and had already pleaded guilty to charges arising out of the same events for which Lowe was on trial; implicating Greenup did not necessarily involve shifting the blame. The reference to Greenup was in the circumstances inappropriate and only highlighted the direction that Lowe's evidence should be scrutinised carefully.
[29]
[17] Counsel for Lowe was correct in submitting that the use of expressions such as "scrutinise the evidence carefully" and "shifting the blame" in each of the extracts quoted strongly suggested to the jury that Lowe's evidence generally should be regarded in the same way as the jury had been directed to treat the evidence of Greenup. In failing to direct the jury that such observations did not apply to Lowe's evidence in his own defence there was clearly a misdirection.
[30]
[18] In directing the jury as she did the learned trial judge failed to maintain the balance in accordance with the reasoning in Webb and the direction given, by not making it clear that the relevant comments related only to the use of the evidence against Zagata, offended the principle laid down by the High Court in Robinson.
[31]
[19] In R v Johnston[2004] NSWCCA 58 the New South Wales Court of Appeal dealt with a case in which each of two men accused of murder gave evidence, and while the appellant Johnston gave evidence that a co-accused Watts had confessed to committing the murder, Watts (who was acquitted) swore that the appellant Johnston had committed the murder alone. No Webb warning was given about that evidence from either Johnston or Watts incriminating the other, and the court held (at [150]) that there was no need for the trial judge to tell the jury that Watts or Johnston had an interest in giving evidence exculpating himself but implicating the other accused, as that would have been blindingly obvious to the jury. The court also remarked that had similar directions been given about both Johnston's evidence and Watt's evidence, then Johnston would have been in much the same position as if no direction at all had been given.
[32]
[20] The latter observation cannot apply here, as Mr Zagata gave no evidence, but the judgment does emphasise the wisdom of a trial judge exercising considerable care when giving a direction about the fact that evidence from a defendant incriminates a co-defendant. When a judge gives such a direction it would usually assist to discuss its terms with counsel and ensure that the direction cannot be understood as meaning that the evidence of the defendant should be treated with caution either in all respects, or else when considering the case against that defendant who gave evidence. It should be made clear that the warning applies only when the jury are considering the case against the co-defendant. (See too the observations in R v Lewis and Baira[1996] QCA 405 at pages 7 - 8).
[33]
[21] What the learned judge said in this case was capable of applying to Mr Lowe's evidence generally, as he did endeavour to explain incriminating facts in part by blaming his co-defendant Mr Zagata. He blamed far more the Crown witness, and self professed accomplice, Mr Greenup. It follows that this court must proceed to consider whether that misdirection occasioned a substantial miscarriage of justice in the trial against Lowe.
[34]
[22] The published decision of this court in R v Zagata, with which judgment this decision should be read, describes the relevant facts common to the cases made against Mr Zagata and Mr Lowe, and those will not be repeated. There were many other matters established against Mr Lowe, relevant on the critical issue of whether the misdirection about jury evaluation of his evidence resulted in his losing a chance of acquittal fairly open to him. That evidence included that soon after Denlin Pharmaceuticals was supplied with 25 kg phenylpropanolamine on 27 May 1999, Mr Greenup delivered either two or three kilograms of it to Mr Lowe, at either Mr Lowe's property "Linden Park" at Beaudesert, or at a property Mr Lowe had acquired at Canungra in March 1997. Information about phenylpropanolamine had been downloaded onto a computer at the Linden Park Horse Stud on 21 March 1999.
[35]
[23] The 25 kg of pseudoephedrine acquired by Denlin Pharmaceuticals on 13 September 1999, and again on 23 May 2000, and of which Mr Greenup said he delivered amounts varying between two and six kilograms on four to five occasions to Mr Lowe at the latter's request, were delivered by Mr Greenup to a locked storeroom at the Canungra property, to which he said Mr Lowe had given him a key. Mr Greenup's evidence that he had delivered phenylpropanolamine and pseudoephedrine to Mr Lowe was supported by a covert search conducted under warrant, carried out at the premises of Denlin on the nights of 14 and 15 November 1999. Amongst other things that search showed that instead of there being only 1.59 kilograms of pseudoephedrine left on the premises, as recorded in the log kept by Mr Zagata, there was actually seven kilograms, and the official record of its usage by Denlin for its nominated purpose had been overstated. That meant nearly 5.5 kg of it was available for use elsewhere. Instead of there being 6.95 kilograms of phenylpropanolamine remaining as recorded, there was none, supporting the claim that that chemical had been used elsewhere. Mr Greenup also swore that Mr Lowe subsequently got him to make cash purchases of caustic soda, iodine, hydrochloric acid, and acetone, which Mr Greenup also delivered to the Canungra property.
[36]
[24] That property contained a shed, searched on 2 December 2000, which revealed the presence of both amphetamine and methylamphetamine on two of the shed walls and on a bench in it. On an unknown date, but prior to Denlin receiving the phenylpropanolamine in March 1999, Mr Lowe had acquired a considerable quantity of glassware and other equipment, which he agreed in evidence had substantially been placed in that shed in Canungra. It had taken a rather circuitous course to get there, having come from Melbourne to Canungra in a shipping container, and when at Canungra - on Mr Lowe's evidence - he had used it to make hydriotic acid, with a view to that being used to clean the bottom of ships. (Mr Lowe had worked some years earlier on the Melbourne wharves.) Then it went to Denlin's premises, where some was washed and stored, and the rest went back to the Canungra shed. Mr Lowe's evidence was that he had last used that glassware in mid 1999, in that shed, to make hydriotic acid.
[37]
[25] The prosecution led evidence that amphetamine could be made by a process that began by bringing phenylpropanolamine into contact with hydriotic acid and red phosphorus. Likewise methylamphetamine can be made by a process that begins with pseudoephedrine, and which also uses each of red phosphorus and hydriotic acid. Producing methylamphetamine by those means also requires the use of other substances such as caustic soda, acetone, hydrochloric acid and ferrous sulphide sticks.
[38]
[26] Red phosphorous, hydriotic acid, ferrous sulphide sticks, caustic soda, acetone, glucose (another necessary substance), vacuum flasks, heating mantels, separatory funnels, condensers, reaction vessels, drying trays, and other extensive laboratory paraphernalia necessary for the manufacture of either amphetamine or methylamphetamine were found in toto in two premises under Mr Lowe's control, searched on 29 November 2000 and 1 December 2000, when a lengthy covert police operation was ended. That had begun on 13 September 1999, when Denlin acquired the first batch of pseudoephedrine. The majority of the equipment found on those two searches, mostly glassware, and the chemicals, were located in a shipping container, in turn contained within a shed at 91 Telemon Street Beaudesert, leased by Mr Lowe on 19 May 2000. The shipping container had been obtained by Mr Greenup at some time in the period between 13 July 2000 and 22 July 2000. Mr Lowe accepted in his evidence that the glassware in that shipping container was his, and had been moved there from the shed at Canungra. Possession of that glassware was the basis of count 9. The other premises from which the investigating police recovered glassware were a self storage unit in Loganholme (count 10), rented on 22 September 1999 by Mr Greenup, one week after the warning the investigating police had given to Mr Zagata about misuse of pseudoephedrine.
[39]
[27] The glassware located in the container inside the Telemon Street shed had been taken out of the shed on the Canungra property, and put into a truck, immediately after Mr Lowe had been stopped at Goondiwindi on 13 July 2000 and found to have $59,200.00 cash in his possession (count 6). The police took possession of that money contained in a horse trailer Mr Lowe was towing from Melbourne to Queensland, and he was required to establish its source to recoup it. Mr Greenup swore that on Mr Lowe's instructions he removed that glassware from the Canungra shed into a truck, which was then parked on a private property at Beaudesert at an address Mr Lowe supplied to him; Mr Greenup then hired the shipping container, had it put into the Telemon Street shed, and unpacked the glassware from the truck into it. Mr Greenup's evidence, not challenged on this point in cross-examination, was that the container as photographed, when opened by the police and searched in Mr Lowe's presence on 29 November 2000, looked as it did after the glassware had been packed into it by him in late July 2000. The container had a lock on it, opened by the investigating police with a key from Mr Lowe's home.
[40]
[28] The investigating police officers, with the assistance of a forensic chemist, made a "reconstruction" of a chemical laboratory using the glassware and items seized from the container in the Telemon Street shed and the Loganholme storage facility. The evidence was that that equipment made a very substantial working laboratory for producing hydriotic acid, amphetamine, and methylamphetamine, and the chemicals and by-products necessary for and resulting from such production were found in the expected places in that glassware. The experienced investigating police officer conducting the covert operation swore that the glassware and chemicals were on a far larger scale than that officer had previously seen. In the region of 80 per cent of the glassware in the Telemon Street container tested positive for amphetamine, methylamphetamine, or the chemical residues of those drugs and the chemicals necessary to manufacture them. Mr Lowe's finger prints were identified on at least two drying trays and a flange. The jury were entitled to conclude that a substantial laboratory for manufacturing methylamphetamine in particular had existed in that shed in Canungra and been moved from there very largely into the Telemon Street shipping container, with some going into the Loganholme storage unit, where 50 per cent of the glassware stored there tested positive for methylamphetamine.
[41]
[29] Mr Greenup did not give any direct evidence of knowing that Mr Lowe was in fact personally manufacturing methylamphetamine in that Canungra shed, but that was the prosecution case; and Mr Lowe agreed in his evidence that the forensic evidence the prosecution led showed that the shed had been used for that purpose. What he said was that he had believed before 29 November 2000 that Mr Greenup and Mr Zagata were producing iodine tinctures in that Canungra shed, albeit illegally because those premises were neither licensed nor suitable for industrial chemical production, and although, as established by the Crown Prosecutor's cross-examination of Mr Lowe, Denlin Pharmaceuticals did not offer iodine tinctures for sale. Mr Lowe also agreed that, on the understanding he claimed to have, the investigating police ought to have found up to 50 litres of iodine tinctures in the Telemon Street container, whereas they did not. He also agreed that at least 8.5 litres of hydriotic acid was not present in the Telemon Street container, which should have been there had he been using the glassware in the Canungra shed until mid 1999 to make hydriotic acid, as he claimed. He denied ever having used the Canungra premises himself to produce either amphetamine or methylamphetamine, or that he had caused Mr Greenup to deliver phenylpropanolamine, pseudoephedrine, caustic soda, glucose, or hydrochloric acid to his Canungra property.
[42]
[30] He swore that he had purchased the glassware found in the two premises years earlier, for the purpose of producing hydriotic acid for paint removal, and that he understood from the supplier of the glassware that it possibly had been sourced through "bikies". By implication, this source was capable of offering another explanation for the considerable traces of amphetamine and methylamphetamine found on the glassware. He also swore that he had been told many lies by Mr Greenup, and his evidence clearly implied that perhaps Mr Zagata, and more probably Mr Greenup, may have been engaged in the manufacture of the amphetamine and methylamphetamine. He did agree that to his knowledge Mr Zagata had never been to the Canungra shed. His accusation, by implication, of Mr Zagata was therefore much more muted than the accusations of dishonesty he levelled at Mr Greenup.
[43]
[31] A 200 litre orange over-pack containing a heat sealed plastic bag, in turn holding a white plastic drum with approximately 75 litres of a dark red powder in an oily liquid suspension, was found inside the Telemon Street shipping container. 1.36 kilograms of methylamphetamine was detected in the liquid, and the red powder was approximately 68 kilograms of red phosphorus. Small trace quantities of amphetamine and other chemicals were also identified in that oily liquid suspension, and the forensic chemist called by the prosecution explained that the presence of those chemicals was consistent with the use of that red phosphorous to produce amphetamine from phenylpropanolamine, the recovery of the red phosphorous at the end of that reaction, and the re-use of that red phosphorous (still containing some amphetamine) with pseudoephedrine to make methylamphetamine. The red phosphorous, itself an important precursor for one method of manufacturing methylamphetamine, was sufficient to make up to 200 kg of the latter substance.
[44]
[32] Mr Lowe swore that that drum containing that red phosphorous and methylamphetamine had come with the glassware he had originally purchased, and had accordingly been carried around for some years from place to place. He was entitled to have the jury consider that explanation, as they no doubt did. Possession of that oily liquid containing that substantial quantity of methylamphetamine was the basis of count 8. Count 3 was based upon the conversion of some of the first batch of pseudoephedrine delivered to Denlin into methylamphetamine, and count 4 upon the like conversion of some of the second batch. Count 2 was based upon conversion into amphetamine of a portion of the phenylpropanolamine delivered to Denlin.
[45]
[33] The trafficking counts depended in part upon intercepted telephone conversations, and in part upon evidence from Mr Greenup. As part of the investigation into the activities of Mr Lowe numerous telephone calls were intercepted and taped. Mr Lowe was a party to many of those calls and the transcripts were admitted into evidence and he was cross-examined about them. Of particular relevance were calls between Mr Lowe and Bonser and Mr Lowe and Greenup (some of which were initiated by Lowe) in the period 26 - 28 March. The jury could very well have regarded those calls as strongly corroborating the evidence of Greenup implicating Mr Lowe. In particular the jury may well have been satisfied by those phone calls that the large amount of money Greenup had with him on his return from Melbourne on 28 March 2000 was the product of an illicit drug transaction carried out at the instigation of Mr Lowe. Without referring in detail to the text of the numerous intercepted phone calls placed in evidence, it is sufficient to say that the jury could well have regarded that evidence as strongly supporting the prosecution case.
[46]
[34] There was other supporting surveillance evidence, and evidence that an analysis of Mr Lowe's financial position between November 1999 and June 2000 demonstrated expenditure of at least $300,000.00 in substantial cash amounts, and in excess of his known financial resources. Mr Lowe admitted in his evidence that he had received between $330,000 and $335,000 from the sale of a drug he was neither authorised to possess or sell, but denied that that was either amphetamine or methylamphetamine. He swore it was a substance called Erythropoietin ("EPO") which he said he had brought privately and illegally from a named vendor, and which he on-sold at a 100 per cent mark up. His supplier lived near him, and that was why Mr Lowe happened to have none of it in his possession in late November 2000, when his properties were searched. EPO is a naturally occurring substance produced by the human kidney, which has been used unlawfully as a performance enhancing drug. Mr Lowe swore he had purchased it in its pre-sealed syringe form, and been on-supplied in that same form by him.
[47]
[35] He explained the sale of EPO as the source of specific sums of money that the prosecution surveillance and other evidence showed him to have received. The first was an amount he said was $100,000.00, but which the prosecution contended was at least $200,000.00, received in cash by Mr Greenup in Melbourne and transported from there to Brisbane by Mr Greenup by plane, and delivered to Mr Lowe. This happened on 28 March 2000 (count 5), and Mr Greenup's luggage was intercepted and searched at the Brisbane Airport. Tightly packed bundles of cash were photographed in it, calculated to amount to at least $200,000.00; Mr Greenup did not identify the amount, but swore to having received it in Melbourne on Mr Lowe's instructions, from a man named Bonser. Mr Lowe said of the $100,000.00 he admitted that Mr Greenup delivered to him in that suitcase that $55,000.00 of it was from the sale of EPO to Mr Bonser, and $45,000.00 from the sale of a horse to Mr Bonser.
[48]
[36] Mr Greenup made at least two other trips on Mr Lowe's behalf to Melbourne to collect cash, although the sequence was not made entirely clear in Mr Greenup's evidence. On another trip he was met by a man whom he did not identify in his evidence at the Collingwood Town Hall, and there was a surreptitious exchange between them of what Mr Greenup said was $30,000.00 in cash, and what Mr Lowe said was $20,000.00, which Mr Lowe said was paid by Mr Bonser for the sale to him of EPO. On a third trip to Melbourne Mr Greenup collected a sum of between $40,000.00 and $50,000.00 from Mr Bonser and a second man named Deeker, which amount Mr Lowe calculated to be between $45,000.00 and $50,000.00, and swore was paid for the provision of EPO to those two men.
[49]
[37] There was evidence also of the collection of an amount of at least $100,000.00 by Mr Lowe's brother-in-law in two separate amounts, which money Mr Lowe also swore was money paid for the provision of EPO. Receipt of that $100,000.00 odd dollars was the basis of count 7.
[50]
[38] Mr Greenup gave evidence, unchallenged on this point, that Denlin had no commercial relationship with either of Mr Bonser, Mr Deeker, or Mr Lowe's brother-in-law. He swore that on the occasion of his first trip to Melbourne he had taken either two or three plastic bags with him containing white powder, for delivery from Mr Lowe to Mr Bonser. In cross-examination he confirmed that he had provided a statement to the National Crime Authority in which he had described having had the opinion at the time that the substance was amphetamine. It was not clear that he disavowed that opinion in cross-examination before the jury; what was clear was that he denied having any knowledge of Mr Lowe selling EPO, or Mr Greenup ever having handled it or, as suggested to him, transported it to Melbourne for delivery to Mr Bonser, or Mr Deeker, or anybody else. That is, Mr Greenup repudiated in cross-examination any suggestion that he had been involved with Mr Lowe in supplying EPO to third parties, although it was common ground that Mr Lowe had used Mr Greenup to collect the described substantial sums of cash from Melbourne.
[51]
[39] Apart from the problem that Mr Greenup did not support Mr Lowe's contention that the substance he was illegally providing for very large sums paid in cash was EPO, Mr Lowe's evidence that the $59,200.00 taken from him by police on 13 July 2000 was from the sale of EPO did not explain why that police intervention was immediately followed by the removal of the glassware from Canungra out of the shed and, within a week, into a shipping container in another shed, nor why the glassware remained in that shed and unused after that. Neither the shed nor the glassware had anything to do with the distribution of EPO, on Mr Lowe's evidence, and he did not suggest that either he was manufacturing that substance, or that its manufacture in any way required either phenylpropanolamine, pseudoephedrine, hydrochloric acid, acetone, caustic soda, or glucose. He denied either ownership or possession of any of those last four substances found in the shipping container.
[52]
[40] The evidence led by the prosecution made a strong circumstantial case against Mr Lowe. If anything, his own evidence strengthened that case, since he admitted obtaining very large sums of cash via his agent Mr Greenup, obtained from the sale of a drug. He admitted having used the glassware found in the Telemon Street shipping container for the production of a specific substance, capable of being used to produce both amphetamine and methylamphetamine. He admitted ownership of the red phosphorous, containing methylamphetamine, found in the shipping container. He conceded the Canungra shed had been used as a laboratory to produce methylamphetamine and amphetamine, and the jury knew that it was in a relatively isolated position on a property he owned and visited. He was left to a bare denial that he had procured the delivery by Mr Greenup of critical precursors for producing amphetamine and methylamphetamine, although the police actually followed and observed Mr Greenup when he was purchasing some of those, and followed him on other occasions when he made visits, of short duration, to the Canungra property. While Mr Lowe's evidence that he was selling a drug was potentially capable of explaining why he and Mr Greenup, and he and Messrs Deeker and Bonser, spoke always in code on the telephone, Mr Lowe had great difficulty in explaining why he spoke in a certain fashion, on numerous occasions about which he was cross-examined in considerable detail, when the allusions and reference he was making in code seemed inappropriate as a reference to EPO, which he was not manufacturing; and quite understandable if a reference to methylamphetamine, which was being produced at Canungra.
[53]
[41] Considering the evidence overall, it made an overwhelming case against Mr Lowe. The misdirection given by the learned trial judge was actually no more than a statement of obvious common sense, and as to a matter that would have been blindingly obvious to the jury, to quote the New South Wales Court in R v Johnston. The fuller Webb direction should have been given, but Mr Lowe did not lose any chance of acquittal even faintly open to him by reason of the non-direction. His appeal should be dismissed.
[54]
Application for leave to appeal against sentence
[55]
[42] Mr Lowe was sentenced to very near the maximum available term on count 1, and to identical terms on counts 3, 4, 5, 6, 7, 8, and 9. He was sentenced to 10 years imprisonment on counts 2 and 10. All sentences were to be served concurrently.
[56]
[43] The learned sentencing judge referred when passing sentence to the money demonstrated to have been received in cash by Mr Lowe; to what the judge described as the extraordinary amount of equipment seized in the Telemon Street shed and Loganholme self storage unit, making a very large laboratory; to the widely reported deleterious effects of amphetamine and methylamphetamine; to the fact of Mr Lowe having formed a veterinary pharmaceutical company in early 1999 for the apparent legitimate purpose of developing Ranitidine to treat ulcers in horses but in reality for the more sinister purpose of creating a front for the legal purchase of two major critical chemical precursors for manufacturing amphetamine and methylamphetamine; to Mr Lowe's recruitment of Mr Greenup and Mr Zagata for his lawful and unlawful businesses; to Mr Lowe having organised an employee of his to live in a house directly opposite the entrance to the Canungra property, so that Mr Lowe could observe all the comings and goings from that otherwise isolated rural property; to his distribution of the drugs he produced to Mr Bonser and Mr Deeker, persons well known to him from his work on the docks in Melbourne; to the fact that he had great difficulty in producing amphetamine from the phenylpropanolamine and had moved to the production of methylamphetamine; to the fact that he had produced somewhere between eight and 16 kilograms of methylamphetamine, with a potential sale value of between $640,000.00 and $1.5M; to his criminal record beginning on 6 November 1964 in the Melbourne Children's Court and extending to a conviction in 1984 for unlawful assault, and which included two convictions for larceny; to the fact that he was 53 years of age, in a de facto relationship and had two children aged 16 and nine; and to the fact that he suffers from stomach ulcers and has an enlarged liver, and that his health had perhaps been adversely affected by his engaging in producing methylamphetamine in the shed at Canungra, a large enclosed one with no windows.
[57]
[44] Mr Lowe had certainly made a sustained and well thought out attempt to produce methylamphetamine on a very large scale. However, the police appear to have tracked him from the very beginning of that particular enterprise, and to have been able pretty much to establish what he actually did receive from it. The evidence does not show that any production of methylamphetamine happened after 13 July 2000, but Mr Lowe would have undoubtedly been ready to restart production if he felt safe from scrutiny. He showed no remorse at all.
[58]
[45] Nevertheless, this was a very high head sentence. The only higher one imposed for trafficking in those drugs when schedule 2 was the 20 year sentence (the maximum) imposed in R v Barrow[2001] 2 Qd R 525. Mr Barrow had produced 300 kilograms of amphetamine, for which he was to be paid over $3M.
[59]
[46] A 10 year sentence was imposed by the Court of Criminal Appeal in R v Walton CA No 257 of 1989, (when the maximum was life imprisonment), where that respondent had pleaded guilty to the production of 15 pounds of amphetamine, which had been sold for well over $200,000.00. That respondent had not only produced it, but had personally organised the trafficking in that drug, supplied it to others, and when arrested was still in possession both of some of the drug and also of more material for further production of it.
[60]
[47] A sentence of 10 years imprisonment was upheld in a matter of R v Kim Christensen[2002] QCA 113, who pleaded guilty to trafficking in methylamphetamine over the four years between 1 January 1997 and 17 January 2001. That four years of trafficking in the drug generated a profit of some $500,000.00, and Kim Christensen, who was neither an addict nor even a user of it, had produced it, making a "cook" once about every 10 days. He had been arrested in May of 2000, released on bail, and continued to traffic. He was arrested again in June 2000, again bailed, and the trafficking continued. Williams JA, giving the judgment of the court, remarked that given the magnitude of the operation, the starting point for the proper sentence could well have been a sentence as high as 13 or 14 years, taking into account in the calculation of that head sentence the fact that the trafficking had been carried on after the applicant had been arrested and released on bail on two occasions.
[61]
[48] The appropriate head sentence for trafficking of this duration, with a proven cash receipt of at least $300,000.00 for the production of up to 16 kg of methylamphetamine, and with sophisticated preparations for continuing large scale production, would be a head sentence in the order of 16 years imprisonment. Mr Lowe gets no discounting of that notional sentence for any remorse or co-operation with the authorities, but it is appropriate to mitigate the sentence a little because of his age and indifferent health. It is appropriate to impose a head sentence on count 1, and concurrent minimum terms of imprisonment on the other counts. We allow the application for leave to appeal against sentence on all counts, order that a sentence of 14 years imprisonment be imposed in respect of count 1, and order that concurrent terms of one year's imprisonment be imposed on counts 2 to 10 inclusive. Those sentences will result in Mr Lowe having to serve more than 11 years before he is eligible for parole, and he will be in his mid 60's by then.