[2006] NSWCCA 190
Hughes v The Queen (2017) 263 CLR 338
344 ALR 187
Source
Original judgment source is linked above.
Catchwords
[2006] NSWCCA 190
Hughes v The Queen (2017) 263 CLR 338344 ALR 187
Judgment (3 paragraphs)
[1]
Counsel:
T Hammond (Accused)
D Jordan and K Curry (CDPP)
[2]
Solicitors:
Jamieson Criminal Law (Accused)
File Number(s): 2018/058199
[3]
JUDGMENT
This judgment relates to a pre-trial application regarding the admissibility of tendency evidence sought to be relied upon by the Crown.
Michael Snounou originally appeared before this court on an indictment alleging a number of offences relating to the possession or importation of prescribed or prohibited substances. The first two counts each related to possession of a pre-cursor to the manufacture of methylamphetamine, namely iodine, contrary to the relevant provisions of the Drug Misuse and Trafficking Act 1985 (NSW).
The offender has pleaded guilty to each of those offences. The agreed facts with respect to that offending indicate that Michael Snounou was the Director of a company which conducted a commercial business involved in the sale of commercial and industrial cleaning and associated products and chemicals.
In 2013 the business, described as Cyndan Manufacturing, purchased substantial quantities of iodine from a supplier in NSW. Whilst Cyndan was involved with some products which had a legitimate use for iodine, iodine is also capable of being used in the manufacture of methylamphetamine.
400 kilograms of the iodine ordered through the business at the direction of the offender was delivered to him at his home. He subsequently delivered the iodine to an auto-electrical business in Marrickville.
A further 400 kilograms which had been ordered by Cyndan at the direction of the offender was delivered by the supplier directly to the auto-electrical business in Marrickville.
In due course, it was established that the iodine ordered and supplied had been used in a number of clandestine drug laboratories being used to manufacture methylamphetamine. The offender has pleaded guilty to possessing iodine with the intention that it be used to manufacture methylamphetamine.
The second count to which he has pleaded guilty relates to broadly similar conduct in 2017. In March 2017 the offender organised the purchase of a tonne of iodine from a different supplier. The iodine was delivered to the Cyndan business premises where some 400 kilograms of it was repackaged by the offender into plain white buckets. The offender was under surveillance and conveyed at least 15 of the white buckets of iodine to his home. The following day he delivered them to a property at Rhodes. The iodine that had been delivered to Rhodes was in due course conveyed to other premises.
Surveillance disclosed that the buckets of iodine were transferred into a truck driven by a person identified as Brian Farrugia. Over the ensuing months police located various of the white buckets, some of which still contained iodine, at a number of different premises including premises where methylamphetamine was located.
In September 2017 Brian Farrugia was stopped in a vehicle after leaving a property in Towrang, NSW. Eleven kilograms of methylamphetamine were located in his vehicle. The property at Towrang was subsequently searched revealing a very large clandestine laboratory capable of manufacturing methylamphetamine.
As with the earlier dealing with iodine in 2013, the offender has pleaded guilty to possession of the iodine in 2017, similarly with the intention that it be used in the manufacture of methylamphetamine.
The original indictment before this court included two Commonwealth offences which also alleged criminal conduct in 2017.
Count 3 in the original indictment alleged that the accused had imported a border-controlled pre-cursor, namely benzyl cyanide contrary to the relevant provisions of the Criminal Code 1995 (Cth). A plea of not guilty was entered with respect to that count. A pre-trial issue was raised as a consequence of the circumstance that only presumptive testing had been undertaken to analyse the correct identification of the substance, namely benzyl cyanide.
In my judgment delivered on 15 November 2023 (R v Snounou (No 1) [2023] NSWDC 583) I upheld an objection to the admissibility of evidence which the Crown had sought to rely upon from a forensic chemist, that notwithstanding the absence of confirmatory testing, the forensic chemist was prepared to express the opinion that he was 'reasonably comfortable' with a conclusion that the substance was, in fact, benzyl cyanide.
Following that decision and the rejection of the evidence, the Crown has filed a nolle prosequi, or 'no-bill', discontinuing that particular count.
Included in the pre-trial applications was an objection to tendency evidence which the Crown sought to rely upon.
It is appropriate to observe that part of the force of the Crown's submission in favour of admitting evidence of the facts behind Counts 1 and 2, namely possession of the pre-cursor iodine with the intention that it be used for the manufacture of methylamphetamine, was the proposition that it was strongly probative of an intention by the accused to import (or obtain) another pre-cursor for the manufacture of methylamphetamine, namely benzyl cyanide.
Whatever the merits may have been of such a submission, they now fall away from consideration because of the removal of Count 3 from the indictment and the additional circumstance that the Crown has decided not to rely upon the factual matrix which had given rise to Count 3 as part of its continued application for the admission of tendency evidence on what was originally Count 4.
Turning finally to the original Count 4, it relates to an allegation that in December 2017 the offender in fact imported a border-controlled drug, namely, gamma-butyrolactone (GBL), in more than a commercial quantity.
GBL may be viewed as somewhat of an oddity in border-controlled drugs in that it has both legal and illegal uses.
It has legitimate industrial purposes as a solvent, where it is a component in a large number of legal substances, including paint stripper, cleaners, adhesives and nail polish removers. It is also apparently used in some aspects of the perfume industry.
As such it is able to be imported into Australia legally, subject to the obtaining of an appropriate permit.
Its illicit use predominantly derives from the circumstance that if ingested into the human body it is metabolised by the liver into gamma-hydroxybutyrate (GHB). GHB is colloquially referred to, amongst other names, as 'liquid ecstasy' and has a reputation as being a 'date rape' drug. Both substances, GBL and GHB, are clear liquids and are reputedly utilised at music festivals and so called 'rave parties'.
The factual circumstances giving rise to the original Count 4 in the indictment derive from an importation of GBL which was intercepted by Australian Border Force officers on 15 December 2017. The consignment was 190 kilograms which was addressed to Mr Caan Phillips who was, relevantly, the warehouse manager at the business premises of Cyndan manufacturing.
The consignment was labelled 'essence aroma' and had been imported from China. No detailed statements from the Crown brief of evidence have been tendered on the pre-trial applications and the above summary comes from the Crown Case Statement, which was tendered.
The Court is presently unaware as to the detail of the evidence, if any, directly connecting the offender with the ordering of the material from China, or his immediate or direct connection with the consignment which was intercepted. The court has not been provided with any evidence as to the date of the ordering of the material and whether or not it precedes a legal ordering of GBL to which I will shortly refer.
However, it appears that the question of whether or not the accused was connected in a relevant sense with the importation is not to be an issue at trial.
The issue at trial which has been identified is whether the accused is able to rely on the statutory defence contained in s 313.2 of the Criminal Code 1995 (Cth), namely, that at the time of the conduct constituting the offence, the offender was under a mistaken but reasonable belief that the conduct was justified or excused by or under a law of the Commonwealth.
The circumstances giving rise to such a potential defence can, for present purposes, be stated succinctly.
Separately from the GBL consigned from China, Cyndan Manufacturing, at the direction of the accused, had ordered GBL from an Australian company, Sigma Aldrich Pty Ltd, which would appear to have been the Australian arm of a company in the United States of the same name which was the ultimate supplier of the ordered GBL.
Over a period of time in late 2017 Cyndan liaised with Sigma Aldrich in NSW and furnished the relevant Purchase Orders and End User Declarations which were required for a legitimate importation of GBL. The End User Declaration signed by the accused on 10 October 2017 described the legitimate reason for obtaining the GBL was for two identified applications.
1. 'To determine gamma-Butrylactone efficacy in removing cured cyanoacrylate. To be added to some of our existing cleaning product range, In (sic) particular, electronic circuit board cleaners and our paint strippers as Saponification of the lactone with sodium hydroxide in the form of lye results in nearly quantitative conversion.
2. To be used as an intermediate in the manufacture of pyrrolidones'
An application for a permit issued by the Department of Health of the Australian Government led to the issue of the appropriate Permit to Import for 300 kilograms of GBL. This Permit was issued to Sigma Aldrich on 10 November 2017.
In due course, the parent company in the United States was unable to supply the full quantity ordered and entitled to be imported pursuant to the Permit, namely 300 kilograms of GBL.
They did however consign, pursuant to the order which had been placed, 90 kilograms of the drug contained in nine 10-kilogram containers. That quantity of what otherwise would be a prohibited border-controlled drug was, accordingly, legally imported and was despatched and delivered to Cyndan Manufacturing at its Brookvale premises on 18 December 2017.
I note in passing that was some three days after the Australian Border Force interception of the GBL from China.
It is significant to observe that no offence is committed with respect to GBL which is otherwise a border-controlled drug under the Commonwealth legislation and is also a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW), provided that the drug has been imported pursuant to a Permit and subsequently is not for human consumption and is possessed in connection with an activity that is not unlawful (See s 35A Drug Misuse and Trafficking Act 1985).
It is clear, however, that even if GBL is lawfully imported pursuant to a Permit, if it is subsequently used for an illicit purpose, for example, on-sale or supply intended for human consumption, the possession or supply would constitute an offence under the Drug Misuse and Trafficking Act 1985.
In the present matter there is no charge before the court relating to the possession of the GBL supplied to Cyndan manufacturing by Sigma Aldrich. The issue at trial is whether in relation to the GBL from China, the accused held a mistaken but reasonable belief that the conduct was justified or excused.
In the proposed trial as now constituted, that is absent the original Count 3, the Crown presses the factual circumstances giving rise to the pleas of guilty for the NSW state possession of iodine offences as relevant and admissible tendency, said to be probative of the elements required to be established in what was originally Count 4, i.e. the importation of the border-controlled drug GBL from China.
Oral and written submissions have been received from both parties which refer in terms to the well-established principles regarding the admission of tendency evidence. The tendency sought to be established from Counts 1 and 2, bearing in mind the absence now of the original Count 3 relating to the benzyl cyanide, is, in short, that the accused utilised the business of Cyndan manufacturing and its legitimate involvement with chemicals as, in effect, a 'Trojan horse' to cover the acquisition of substances which might be utilised for an illicit purpose and that he intentionally possessed a substance, namely iodine, which he on-supplied to persons involved in the illegal manufacture of prohibited drugs and that he held such an intention regarding the use of the substance.
Count 4 has a focus on the question of whether the importation was lawful, or whether there was a possible belief that it was otherwise justified. It is no part of the Crown case that the GBL acquired lawfully from Sigma Aldrich in December 2017 was intended to be used for illegal purposes.
It is similarly not an element of the charged offence in the original Count 4 that it was intended by the accused to supply the GBL from China for an illicit purpose. Whilst an inference as to the ultimate intention of the accused might be drawn that it was intended to be used illicitly, the authorised Permit to import 300 kilograms and the subsequent short supply of only 90 kilograms, subject to a consideration of when the short supply became known and when the material from China was ordered, might equally point to an intended obtaining of GBL for legitimate manufacturing purposes.
In order to be relevant and admissible the first question which must be asked is whether the evidence is capable, rationally, of affecting the assessment by the tribunal of fact of the probability of a fact in issue.
It is submitted on behalf of the accused that the ultimate intention following the acquisition of GBL by the accused, from either the United States or China, is neither a fact in issue at trial, nor is it an element of the offence which is charged regarding the GBL (see Simpson J in Gardiner v Regina (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [125]).
The second question is, if the evidence is so capable and therefore has probative value, whether such probative value is 'significant'.
As observed by the High Court in Hughes v The Queen (2017) 263 CLR 338; 344 ALR 187; [2017] HCA 20 at [64]:
"The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged."
As already observed, a tendency to on-supply a substance to be used for illicit purposes may well be established by the factual circumstances and the admissions and pleas of guilty in counts 1 and 2. However, such a tendency does not go to support, establish, or prove, any of the necessary elements in the offence which is charged regarding the GBL.
The tendency may be relevant to a collateral but uncharged intention, but it does not have significant probative value with respect to the charge that has been preferred, nor to the anticipated issues at trial.
Were I to be incorrect in my assessment of probative value, the slight probative value of the tendency evidence would not substantially outweigh the prejudicial effect of such evidence.
Accordingly, the evidence must be rejected.
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Decision last updated: 15 January 2024