Later decisions of the Court of Criminal Appeal
26 The problems about the pleas of guilty to these three counts come about because of two decisions of this Court; R v BD [2001] NSWCCA 184 and R v McCoy [2001] NSWCCA 255, both given after the appellant was sentenced on 17 March 2000.
27 In BD the Court considered a question for determination under s5A(2) of the Criminal Appeal Act 1912. The question was whether a trial judge in trying a case alone had erred in law in concluding that the obtaining and transporting of ingredients (namely Sudafed, phosphorus powder and orthophosphoric acid) and implements to be used in the manufacture of methylamphetamine could not constitute taking a step in the process of manufacture within the meaning of s6 of the Act. In that case the accused had been stopped by police while driving a motor vehicle. A search of the vehicle revealed a number of carry bags in one of which there was a substantial quantity of Sudafed tablets, some loose and some in blister packs. The other ingredients were also found together with items of chemistry glassware which appeared to be new. There was evidence that Sudafed tablets contained pseudoephedrine, a precursor for the making of methylamphetamine. The method of doing this illicitly by the reduction of pseudoephedrine was referred to. There was also evidence that the first thing done at the beginning of the extraction process was the removal of the Sudafed tablets from their blister packets. The next step was to crush the tablets and add a solvent.
28 The Crown contended that the acquisition and transportation of chemicals and equipment necessary for the manufacture of methylamphetamine was a step in the process of manufacture. The Crown also relied on the removal of the Sudafed tablets from their blister packs as a discrete step in the process of manufacture.
29 Bell J, with whose reasons for judgment Stein JA and Greg James J agreed, said:
"17 Judge Graham accepted that a step, being an intermediate stage in the process of manufacturing a prohibited drug, would fall within the terms of s6(a). In this respect his Honour accepted that it would not be necessary, at the time of taking the intermediate step, for the person to have possession of (or access to) all of the equipment and all of the chemicals necessary to complete the process. The question his Honour identified was 'whether the acquisition of the wherewithal and its transportation to another place amounted to a step in the process of manufacture.' His Honour considered that a distinction should be drawn between preparatory acts and acts which, in truth, represented steps in the process of manufacture. It followed that acts which were merely preparatory did not fall within the statutory prohibition.
18 In Judge Graham's view the acquisition and transportation of the chemicals amounted to no more than the respondent equipping himself with materials necessary to undertake the process of manufacture at a future time. In similar vein the removal of the Sudafed tablets from their blister packs could not be described as anything more than preparation for a future process of manufacture.
19 In submissions before this Court the Crown contended that Judge Graham erred in drawing the distinction between acts which are merely preparatory to the process of manufacture and steps in a process of manufacture."
30 Thomas and Kouroumalos were referred to together with other cases. In Kouroumalos the appellant pleaded guilty to a charge of "knowingly taking part in the manufacture of methylamphetamine in an amount not less than the commercial quantity". The sentencing judge had before him a statement of facts including, relevantly, that the appellant had removed a very large quantity of Sudafed tablets from their foil containers. Bell J said:
"27 … The facts further alleged that the appellant had paid for and collected Ph papers, vacuum grease and drums of acetone each being substances required for the manufacture of methylamphetamine. He had kept at his home vacuum flasks and other utensils used in the manufacturing process and he had engaged in testing the glucose content of some methylamphetamine supplied to him by the organisation and reported back on his findings."
31 The following passage from the judgment of Wood CJ at CL in Kouroumalos was quoted:
"Its case in relation to the first count was that, being aware that the Sudafed tablets he popped, and the other items he fetched, were required for the manufacture of the prohibited drugs, he 'knowingly participated in their manufacture' by carrying out those activities. They were necessary steps in the operation, as was the provision of his premises as a place to pop the Sudafed tablets from which the required pseudoephedrine was recovered, and to store the chemical flasks needed for a cook. It was in that sense he knowingly participated in the manufacture of the drugs. That was sufficient as a matter of law: see s6 Drug Misuse and Trafficking Act 1985: Thomas (1993) 67 A Crim R 308 at 310."
32 Bell J continued:
"30 I do not consider that the passage set out above in Kouroumalos should be seen as supporting the construction of s6 of the Act for which the Crown contends in this case. As noted above, the applicant in Kouroumalos pleaded guilty to the offence of knowingly take part in the manufacture of methylamphetamine. He thereby admitted all the legal ingredients of the offence. The evidence disclosed that the organisation of which he was a part was engaged in manufacturing methylamphetamine. His role in 'popping' the Sudafed tablets and in carrying out the other activities, including reporting on the glucose content of the methylamphetamine produced by the syndicate, needs to be seen in this light."
33 Based on that decision the appellant submitted that the finding central to the sentencing Judge's reasoning on count 2 was that the only physical act in which the appellant seemed to be involved was the popping of the Sudafed tablets. Even though this was a vital part of the exercise and was essential in this particular form of illegal manufacturing, it was not a fact capable in law of founding his conviction. His Honour had earlier said that the direct role which the appellant played was to participate with others in physically removing individual Sudafed or "Chemist's Own" brand tablets from the plastic containers. Similarly the sentencing Judge's statement that there was no evidence that the appellant actually himself participated in either, or any, of the cooking operations by Marskell or Simpson or others and that his role was in assisting in getting the chemicals together for the purposes of the exercise meant that on the same principle there was no foundation for a finding of his guilt on counts 4 and 5. There was evidence that the appellant had been advised to plead guilty by his legal advisers because of their belief that these preparatory activities were steps in the manufacture.
34 At the hearing of the appeal the appellant filed an affidavit of Michael Anthony Croke, the appellant's solicitor, sworn on 22 July 2002 in which he said:
"2. In relation to Count 2 it was the view of both myself and Counsel appearing at the sentence hearing that the act of 'popping' the Sudafed tablets from its packaging constituted all elements of the offence of knowingly take part in the manufacture of prohibited drugs. Consequently, Mr Parker was given, and accepted advice that he should plead guilty to that particular matter.
3. I have subsequently been advised that in R v BD [2001] NSWCCA 184 the New South Wales Court of Criminal Appeal has decided that the mere removal of tablets from its packaging is insufficient to ground the offence of knowingly take part in the manufacture of prohibited drugs.
4. Similarly, in relation to Counts 4 and 5 it was the view of both myself and Counsel appearing at the sentence hearing that the mere attempt to manufacture prohibited drugs founded the offence in question, notwithstanding the fact that the chemicals used by the appellant rendered it impossible for him to do so."
35 After the Court had reserved its decision and with its leave, further affidavits were filed. In an affidavit of 28 July 2002, Mr Croke said:
"2. In relation to paragraph 4 of my affidavit sworn on 23 July 2002 I add the following:
a. Mr Parker was sentenced before the decision of R v McCoy [2001] NSWCCA 255 (4 July 2001) was handed down. Until I became aware of that decision I believed that an attempt to manufacture large commercial quantity of methylamphetamine satisfied the offence even though it was physically impossible to produce a large commercial quantity of methylamphetamine.
b. I was aware that Mr Parker had acquired chemicals but until the decision in R v BD [2001] NSWCCA 184 (15 May 2001) I believed that that limited role satisfied the elements of the offence. I therefore advised Mr Parker to plead guilty."
36 In an affidavit of 29 July 2002, the appellant said:
"2. With respect to Count 2 of the indictment I physically removed Sudafed tablets from their containers. I was not aware of any manufacturing process taking place at that time. I was not involved in the cooking process. I believed on legal advice that my role of removing Sudafed tablets meant that I was guilty. It has since been explained to me that that is not the case. I am therefore not guilty of the Second Count on the indictment.
3. With respect to Counts 4 & 5 of the indictment I was involved in the acquiring of chemicals. I was not involved in the cooking process. I was not aware of any manufacturing process taking place at the time I acquired the chemicals. On legal advice I believed that an attempt to produce large commercial quantity of methylamphetamine meant that I was guilty even though it was impossible to produce a large commercial quantity of methylamphetamine. It has since been explained to me that that is not the case. On this advice I am therefore not guilty of Counts 4 & 5 on the indictment."
4. I have read the two affidavits of Michael Anthony Croke sworn on 23 July 2002 and 28 July 2002. I agree with those affidavits."
37 In Thomas a quantity of P-2-P was found in the appellant's possession. He was convicted of taking part in the manufacture of methylamphetamine. There was evidence that P-2-P was a raw material used in the manufacture of the drug. In that case the police gained access to premises occupied by the appellant in which they found a fully operational laboratory. They found in his possession a substantial quantity of P-2-P which had been produced by the appellant in his laboratory. There was no dispute that methylamphetamine may be produced by a process which uses P-2-P as a raw material. The contest at trial was whether, as the Crown claimed, the appellant intended to use the P-2-P in the manufacture of methylamphetamine or whether, as the defence claimed, for some other purpose such as the manufacture of opals. In that context Gleeson CJ said at 311:
"Where, as the Crown alleged to be the case here, a person manufactures something with a view to going on to use it in the manufacture of a desired end product then it is normally proper to regard that as a step in the manufacture in the end product. The fact that the process is interrupted at an intermediate stage does not take the case outside the terms of s6 of the Act."
38 Earlier at 310-1 the Chief Justice had said:
"Activity which may properly be described as the manufacture of a certain product might, in various cases, commence with materials which are themselves in various stages of production or refinement. The end product of a given industry activity, assuming it to be a marketable commodity, might be something which is itself capable of being used as a material in a process of manufacture. However, depending upon the facts and circumstances of the individual case, the production of such a commodity might merely be an intermediate step in a manufacturer's more extensive process of manufacture. What for one manufacturer is an end product might, for another, be an intermediate, product. Conversely, what might, for one manufacturer, be acquired as a raw material prior to any manufacturing activity might, for another, be a product of a step in the process of manufacture."
39 In this case it seems clear enough that the appellant was removing the Sudafed and other similar tablets from their plastic containers with a view to going on to use them in the manufacture of methylamphetamine. In my opinion, BD should not be treated as determining that a person removing Sudafed or other similar tablets from their containers with the intention of using the contents to manufacture methylamphetamine can never be said to be taking a step in the process of manufacture of methylamphetamine. In Kouroumalos Wood CJ at CL said that the popping of Sudafed tablets and the fetching of other items required for the manufacture of methylamphetamine, aware that the tablets and such items were required for that manufacture, were necessary steps in the operation.
40 In BD the tablets, taken from their packs, were found in the boot of a car being driven along the Hume Highway. The question posed under s5A(2) of the Criminal Appeal Act was whether the trial Judge had erred in law in concluding that "the obtaining and transporting of ingredients" including Sudafed and implements to be used in the manufacture of methylamphetamine could not constitute taking a step in the process of manufacture. The case was directed to that question. A decision on those facts does not establish a binding principle that in a case such as the present removal of an ingredient from its packet with a view to its use in the production of a prohibited drug is not a step in that process. There is nothing about the factual statement relating to the second, fourth or fifth counts that puts them on all fours with the facts in BD. In my opinion, that decision is no ground for permitting the appellant to change his plea of guilty to the second count.
41 Robert Ellis McCoy, whose presence at the Sylvania Waters premises has already been referred to, was convicted on 3 April 2000 before his Honour Judge Shillington and a jury of a charge that between 1 December 1995 and 30 June 1996 he did knowingly take part in the manufacture of a prohibited drug namely methylamphetamine. On 9 June 2000 he was given a suspended sentence of imprisonment for a period of 1 year. He appealed against his conviction on grounds which included the ground that the learned trial Judge erred in determining that the evidence was capable of proving the offence charged notwithstanding that there was evidence to establish that the offence was incapable of being committed by the appellant in the manner alleged. The Court of Criminal Appeal upheld that appeal.
42 Hulme J gave the principal judgement. In the course of it his Honour remarked that despite the extent of the period encompassed by the charge, the matter was put to the jury on the basis of activities being carried on at, and just prior to, the time of the appellant's arrest on 13 June 1996. The foundation of the appeal lay in the undisputed evidence at the trial that the chemicals being used in the course of an attempt to produce methylamphetamine were incapable of leading to that result. His Honour said:
"15 On those provisions, there must be a process of manufacture of a prohibited drug, here methylamphetamine, in which the offender takes part. The key issue for present purposes is the width of the concept of a process. At its widest, it may begin with the germination of an intention to produce the prohibited drug and ends, perhaps after numerous false starts and failures, with successful production. Narrowly, it may look to a particular attempt to produce the prohibited drug, involving for example the taking of chemicals, their combination and the result of the chemical reaction.
16 I do not think it necessary to address in the abstract where in the spectrum a process of manufacture of a prohibited drug lies for the purposes of the Act. It is sufficient that in this case the matter was put to the jury on a narrow basis, whereby the process was that under way at and just prior to the time of the Appellant's arrest. It was at all times impossible for manufacture of methylamphetamine to occur in the course of the attempt at manufacture in which the Appellant was then involved. Those directing the enterprise could have made another attempt using different chemicals, but that would have been a different process of manufacture of methylamphetamine from that put before the jury. It would not have been the process of manufacture of methylamphetamine being carried on at, and just prior to, the time of the Appellant's arrest. It was not put to the jury that the process in this case extended to the use of different chemicals if the initial attempt was not successful.
17 In the process as the matter was put to the jury, however genuinely the Appellant may have thought that the chemicals being used when combined made methylamphetamine, it could not realistically be said that the attempt to combine those chemicals was the taking of a step in the process of manufacture of methylamphetamine. To illustrate the point, however genuinely the appellant may have thought that hydrogen and oxygen when combined made methylamphetamine (rather than water) it could not realistically be said that an attempt to combine those elements was the taking of a step in the process of manufacture of methylamphetamine. The chemicals in the present case were just not appropriate for the purpose, and there was no process of manufacture of methylamphetamine."
43 Based principally on the Crown concession that the chemicals being used during the short and discreet time that McCoy was present were incapable of producing methylamphetamine, Mr Thangaraj, who put the appellant's case in a commendably determined and clear fashion, submitted that the appellant should be permitted to change his pleas on counts 4 and 5.
44 In R v El Azzi [2001] NSWCCA 397 the appellant, the person already referred to in the facts sheet, was alleged to be involved in an enterprise relating to the manufacture of amphetamine. Howie J, who gave the judgment with which Mason P and Levine J agreed, said:
"10 The second count relates to what is alleged by the Crown to be an attempt to manufacture at Dooralong. Generally the Crown case is that the applicant organised and supervised the manufacture of the drug using a man named Simpson to carry out the manufacturing process. The Crown alleges that, amongst other things, the applicant secured the premises where the manufacture was to take place and obtained the precursors from which the drug was to be manufactured. The venture was interrupted when on 15 April 1996 police raided the premises being used for the manufacture and arrested two alleged co-conspirators, Knight and Phillips.
11 The allegation in respect of the third count concerns a further attempt by the applicant and others to manufacture methylamphetamine after the police frustrated the attempt at Dooralong. This enterprise commenced at premises in Glenfield but, because of suspected police activity in the area, was moved to Sylvania Waters. The Crown case is that the applicant arranged the premises for the manufacturing of the drug process and supervised the process that was carried out by Simpson. Once again the venture was cut short by the intervention of police. On 13 June 1996 police raided the premises at Sylvania Waters and the applicant was arrested along with Simpson, Hearne, the owner of the premises, and Robert McCoy.
12 The applicant was initially charged with three counts of knowingly take part in the manufacture of methylamphetamine but, for reasons which will become apparent, those charges were withdrawn in the Local Court on 14 August 1996. There has been some indecision by the Crown since that time as to the charges that should be laid against the applicant. It was not until 7 August of this year that the indictment, which is the subject of these proceedings, was presented to the District Court. The difficulty, which the Crown faces in proving the charges initially laid in respect of Dooralong and Sylvania Waters, is that methylamphetamine could not have been manufactured using the chemicals found at those sites."
45 No concession about the impossibility of manufacture is made by the Crown in this case except so far as one can derive it from page 61 of the stated facts. So far as the Wollombi laboratory site was concerned, which founded the fourth count, it was said that the forensic evidence taken indicated that commercial quantities of methylamphetamine had been produced in the past. So far as the Dooralong site was concerned analysis revealed evidence of methylamphetamine being produced using phenylacetic conversion. Search of the Sylvania Waters laboratory revealed evidence of an attempted methylamphetamine process using a phenylacetic acid conversion. In that case it was said the integrity of the starting precursor material would have prevented this reaction proceeding successfully.
46 By his pleas the appellant admitted the essential ingredients of the offences charged. It was plain that so far as Sylvania Waters was concerned there was no more than an attempt, unsuccessful, to manufacture methylamphetamine. The sentencing Judge raised this with the Crown and counsel for the appellant took no exception to the facts sheet as supporting the charges.
47 In count 4 the offence was alleged to have been committed between 1 December 1995 and 31 January 1997. In count 5 the offence was alleged to have been committed between 1 December 1995 and 30 June 1996. At the beginning of the facts sheet it was said:
"The accused and his close associates, Dennis and Tracie Watkins and Frank Bera, all from the Central Coast, were identified as being intricately involved in the manufacture and distribution of prohibited drugs with Kalache. Their criminal activities were based in Kariong where they resided, and both their premises were monitored by lawfully obtained listening devices and telephone interception at different times during the investigation. Although the accused and the Watkins' were closely aligned with Kalache, they supplied prohibited drugs separate to the Kalache network."
48 About the fourth and fifth counts it was said that Launt established his backyard hydriodic acid laboratory near Maclean during 1994 and 1995. Hydriodic acid is a reportable substance commonly used to reduce pseudoephedrine to methylamphetamine. In December 1995 Kalache and the appellant contacted Launt and arranged for him to supply 7.5 litres of hydriodic acid for $7,500. In the middle of December 1995 Launt and Kalache arranged for a large supply of further precursor chemicals and reagents for the amount of $35,000. The consignment consisted of the precursor, Phenylacetic acid (40 kilograms), Mannitol (20 kilograms), hydriodic acid (30 litres), sodium acetate (40 kilograms) and caustic soda (40 kilograms). In January 1996 Launt met the appellant and Kalache in Sydney to discuss further supplies and pay some outstanding moneys for the initial supply in December 1995. In February 1996 a further 30 litres of hydriodic acid was supplied and transported to Sydney by commercial carriers. Further requests were made by Kalache to Launt for phenylacetic acid and other reducing agents. Launt and Dolman produced methylammonium chloride, formic acid, acetic anhydride and N-methyl formamide. These products were sold to Kalache, the appellant and Heausler. Additional products supplied included common authentic materials legitimately bought and on-sold by Launt including hydrochloric acid and sodium acetate in their original packaging.
49 During March 1996 Kalache and the appellant purchased 75 kilograms of phenylacetic acid, 40 kilograms of sodium acetate, 80 litres of acetic anhydride and 100 litres of hydrochloric acid. This was delivered to Kalache's house in Sydney. It was stored at Smithfield in a storeroom rented by the appellant from his neighbour, Joe Vocisano. The appellant also stored a pill press at this address. About the same time the appellant ordered a further identical consignment from Launt of 50 kilograms of phenylacetic acid, 40 kilograms of sodium acetate, 80 litres of acetic anhydride and 100 litres of hydrochloric acid. This was delivered to unknown persons working for Kalache at Peats Ridge. About this time the Wollombi clandestine drug laboratory was established. On 3 April 1996 police discovered the clandestine drug laboratory site and storage area of precursor chemicals at Wollombi. The chemicals located on this property were consistent with the order that was delivered to Peats Ridge.
50 In March 1996 the appellant and Haeusler met Launt twice to establish future supplies of precursor chemicals. Haeusler and the appellant ordered 40 kilograms of phenylacetic acid, 40 litres of acetic anhydride, 20 litres of hydriodic acid and 40 litres of N-methyl formamide. The consignment was transported and arrangements made for the appellant to collect the consignment for Haeusler.
51 Simpson and El Azzi established a clandestine laboratory at a house at Dooralong. On 15 April 1996 police discovered the illicit laboratory active in the bathroom of the premises. This was described in the remarks on sentence. As a result of this seizure, Haeusler, the appellant and Simpson met and an agreement was reached for the further supply of chemicals for another manufacture process to begin. Premises at Glenfield were arranged for use. On 23 April 1996 the local police visited this laboratory site but the laboratory was not detected. It was then decided to move to Sylvania Waters, where the syndicate re-established the clandestine drug laboratory.
52 During July/August 1996 Launt attempted to recover moneys outstanding to him from the appellant and Haeusler. The appellant told him that they had been raided by the police and lost all the phenylacetic acid. Launt was also told he was not being paid because the chemicals supplied "were not any good and they couldn't do anything with it". During the rest of 1996 Kalache and the appellant purchased approximately 100 litres of hydriodic acid from Launt at $500 a litre.
53 On 12 May 1998 Launt's property was searched. There were seized empty imported 40 kilogram phenylacetic acid that contained the product supplied to Kalache in 1995, various drums of home-made phenylacetic acid labelled "PAA" that actually contained benzoic acid, black 20 litre plastic drums of reducing agents with home-made labels and spare printed labels of similar compounds previously supplied by Launt to Kalache, the appellant and Haeusler during 1996.
54 It is in the context of this material that the appellant pleaded guilty to counts 4 and 5. The facts sheet was not challenged. The appellant in his affidavit of 29 July 2002 concedes that he was involved in the acquiring of chemicals but said he was not involved in the cooking process. He said further that he was not aware of any manufacturing process taking place at the time he acquired the chemicals. This last statement by the appellant in his affidavit defies belief and is entirely inconsistent with those parts of the facts sheet that I have set out. I have no hesitation in rejecting it. In my opinion, Judge Woods correctly concluded in his remarks on sentence that the appellant played a significant role in manufacturing and supplying methylamphetamine over several years. The application to change the pleas to counts 4 and 5 should be rejected.