R v Strawhorn [2008] VSCA 101

1 The applicant was, on 22 June 2006, presented before the Supreme Court at Melbourne on four counts of trafficking in pseudoephedrine (counts 1 to 4), one count of trafficking in a commercial quantity of pseudoephedrine (count 5) and one count of making a threat to kill (count 6). He was, on 18 October 2006, found guilty by the jury on count 5 only.[1]

2 After hearing a plea in mitigation of penalty, the sentencing judge, on 11 December 2006, imposed a term of imprisonment of seven years in respect of which a non-parole period of four years was fixed.

The application for leave to appeal against conviction

3 The applicant seeks leave to appeal against his conviction[2] and sentence on the grounds that:

2A The learned trial judge erred in leaving evidence of [the applicant's] "failure to mention pseudoephedrine" as consciousness of guilt on all or any counts.

2B The learned trial judge erred in leaving evidence of [the applicant's] alleged "directive" to witness BC that "it never happened" as consciousness of guilt on count 5.

2C A miscarriage of justice was occasioned by the Crown leading evidence which, not ultimately constituting admissions by conduct, was of little probative weight and significant prejudicial effect.

3A The learned trial judge erred in directing the jury that the following pieces of evidence were capable of corroborating the evidence of Stephen Paton.

(i) Regarding counts 1 to 4, all displays of unsourced cash before 19 May 2000.

(ii) Regarding count 5, all displays of unsourced cash including those after 19 May 2000.

(iii) Regarding count 5, the car log for 19 May 2000.

(v) Regarding count 5, the evidence of witnesses DE and BC.

(vii) Regarding all counts and particularly count 5, the evidence of admissions by conduct.

3B The learned trial judge erred in suggesting to (or directing) the jury that a finding that the alleged corroborative evidence was "consistent" with Mr Paton's account was capable of being used to corroborate his evidence.

4A The learned trial judge erred in declining to give a specific direction, in the nature of a Faure warning, to the jury regarding the witness BC.

4B The learned trial judge erred in declining to give a specific direction, in the nature of a Faure warning, to the jury regarding the witness DE.

5A The learned trial judge erred in admitting evidence of eight financial transactions said to involve "unexplained cash transactions" by the applicant. (The Crown initially sought to lead evidence of 11 financial transactions. The evidence in relation to three transactions was ruled inadmissible.)

5B Alternatively, admitting the evidence produced a miscarriage of justice, by exposing the applicant to the danger that the jury might use the material:

(ii) as circumstantial evidence inculpating the applicant, or

(iii) as evidence of corroboration of the account of Mr Stephen Paton.

1 The learned trial judge erred in ruling that the expression "quantity of pure drug" in column 2 of Part 1 of Schedule Eleven of the Drugs, Poisons and Controlled Substances Act 1981 ("the Act"), is an expression that has a special or technical meaning.

2 The learned trial judge further erred in alternatively ruling that the ordinary meaning of the word "pure" is the meaning that is employed in the "standards laid down in the principal reference work on the subject", the British Pharmacopeia.

3 As a result, the verdict on count 5 was unsafe and unsatisfactory in that:

- the verdict was unsupported by evidence of a commercial quantity of pseudo-ephedrine (or pseudo-ephedrine hydrochloride), there being no evidence of a commercial quantity;

- alternatively, the verdict was against the weight of the evidence with respect to the existence of a commercial quantity of these substances.

a. by directing the jury that the quantity of the drug alleged in count 5 was not in issue; and

b. by failing to direct the jury that the meaning of the expression "quantity of pure drug" in column 2 of Part 1 of Schedule Eleven of the Act did not encompass or include a quantity of any other substance in which a drug was contained or with which it was mixed.

2 As a result, the learned trial judge erred in removing from consideration by the jury an element of the offence charged: that the Appellant trafficked in a quantity not less than the commercial quantity.

7A A miscarriage of justice was occasioned by the Crown leading evidence which, in the event, was of little probative weight and significant prejudicial effect on any count, including count 5; such evidence including:

(i) the evidence that [the applicant] secured Paton's resignation;

(ii) the evidence that [the applicant] threatened to kill Paton;

(iii) the evidence that [the applicant] threatened to kill witness 4/199;

(iv) the evidence that [the applicant] commended witness 4/199's character to the Court of Appeal in 2001;

7B The evidence originally mooted as consciousness of guilt evidence, but which the learned trial judge declined to allow to be so used, including:

(i) [The applicant's] instruction to Sayce "don't tell anyone";

(ii) [The applicant's] guilty conduct in recorded conversations of 16 January and 30 May 2001;

(iii) [The applicant's] alleged lies in 15 March 2003 tape.

7C The evidence of police finding allegedly relevant pseudoephedrine in raids on the Bandidos.

7D The evidence of police finding allegedly relevant pseudoephedrine in the raid on Milne's house on 16 June 2000.

8A In the event that one or more aspects of the above grounds are made out, a miscarriage of justice occurred by reason of that aggregation of errors.

4 The applicant was a serving member of the Victoria Police. At the relevant time, he held the rank of Detective Senior Sergeant and was attached to the Drug Squad. His duties included participation in a covert operation, designated 'Vere,' which had as its focus particular groups of individuals believed to be implicated in the illegal trade in amphetamine based drugs. He held a senior position within a section of the operation identified as Unit 2, the activities of which were directed to the location of clandestine laboratories. The drugs produced in such laboratories include amphetamines, methylamphetamines and MDMA (ecstasy). An essential chemical for the manufacturer of these substances is pseudoephedrine hydrochloride ('pseudoephedrine'), a common ingredient in medications for the relief of colds and flu, including the Sigma company product 'Sudafed.' The applicant's primary responsibilities related to the activities of the 'Chemical Diversion Desk,' which as its name implies was concerned with cutting off supplies of the necessary chemicals to alleged operators. As part of his duties, he was involved in the authorisation of what were termed 'controlled deliveries.' Under this process, quantities of chemicals and equipment necessary for the manufacture of illicit drugs would be made available to undercover operatives and/or informers to supply to suspects with the purpose of following the material by way of covert surveillance through to the laboratories and to those engaged in this form of criminal enterprise. Understandably, the procedures under which the unit was to operate required that such deliveries be made only when there were sufficient resources available to monitor the movement of the chemicals on a 24-hour basis.

5 Detective Superintendent David Barry Newton and other police officers stated that controlled deliveries of pure pseudoephedrine (the material encompassed by count 5), in distinction to medications containing this substance, were extremely rare and that the last one occurred around 1997 or 1998. In that case, approval was ultimately given by a Deputy Commissioner.

6 Malcolm Rosenes, a former member of the Police Force, was, at the time of the applicant's trial, undergoing a term of imprisonment.[5] In 2000, he was a Detective Sergeant in Unit 2 of the Drug Squad and his subordinates were Detectives Senior Constables Paton and Firth.

7 Stephen Andrew Paton[6] was attached to the squad between March 1997 and the end of 2000.[7] His duties at the time with which we are concerned here, included the maintenance of liaison with and the making of payments to the drug companies that supplied chemicals for use in controlled deliveries.

8 The Drug Squad predominately secured its supplies from 'Science Supplies' and 'Sigma Pharmaceuticals' ('Sigma'). Sigma was the squad's sole supplier of Sudafed tablets and pseudoephedrine. When advised by a supplier that the chemicals requested were available, Paton would travel by car to the relevant factory and collect them. Pseudoephedrine could only be obtained from Sigma's Croydon factory whereas Sudafed tablets were secured from its premises at Clayton.

9 At Croydon, where he dealt with one of two employees, Ian McKinley-Nicholson or David William Guy, Paton usually had only to telephone ahead and the security guard would admit him upon arrival. The price of pseudoephedrine purchased from Sigma was $170 per kilogram.

10 BC stated that he had been a serving police member between 1972 and 1997. In the period 1990 to 1997, he too was a Detective Sergeant attached to Unit 2. In the course of his duties, from time to time, he received information from a Police Informer, DE. After he resigned in 1998 or 1999, he was told by DE that, if chemicals were provided to certain persons, including a man named Mark Moran, they could lead the police to another person of interest, Antonious Mokbel. BC conveyed this information to the applicant, pointing out what he perceived to be a unique opportunity to target Mokbel.

11 In consequence, Operation Vere was commenced and quantities of chemicals and related paraphenalia were supplied to Moran. BC took possession of chemicals handed to him by the applicant and passed them on to DE to be delivered to Moran. The money handed over by DE for these materials was then passed back to the applicant. Usually the cash was provided beforehand and the chemicals were delivered between two and seven days later. BC stated that the prices for the products were set by the applicant. It was BC's belief, based upon his conversations with the applicant, that he was an unregistered informer and that he had been granted immunity with respect to offences involved in his participation.

12 BC would meet the applicant in the vicinity of BC's office in Holmes Road, Moonee Ponds. He normally met DE in the same general area. It was his understanding that all deliveries of chemicals were carried out under surveillance. The materials supplied consisted, for the most part, of quantities of Sudafed tablets, but included other chemicals, such as red phosphorous, caffeine and a bonding agent (usually lactose gel).

13 DE served as a member of the Victoria Police between 1976 and 1984. In the 1990s, he formed a friendship with BC. DE stated that, in late 1999 or early 2000, BC became aware that he knew Mark Moran and suggested that the Drug Squad might be interested in conducting an operation whereby DE passed materials for the manufacture of amphetamines to Moran by way of controlled deliveries, indicating that the principal target of the operation would be Mokbel. DE stated that BC requested that he ask Moran whether he would be interested in buying such materials.

14 According to DE, he understood that he would only assist the police in obtaining evidence and that he would never be required to enter a witness box. He stated that he agreed to participate on the understanding that the operation was under the direct control of the Drug Squad.

15 When he told Moran that he could secure some Sudafed tablets, Moran initially responded that he would think about it but, shortly afterwards, requested him to proceed. He stated that his early discussions with Moran were face-to-face and that in respect of all further dealings, he waited for Moran to make a short telephone call directing him to meet somewhere. The proposed transactions were never discussed over the telephone.

16 David William Guy was Plant Manager at Sigma Pharmaceuticals. He gave evidence of the internal procedures and documentation required to requisition quantities of chemicals from the company and stated that Sigma did not provide unmixed pseudoephedrine to any person or entity other than the Drug Squad. On some occasions when this material was sought, Guy was directly contacted by Paton. On others, Nicholson was contacted by the applicant and the request was forwarded to Guy.

17 Peter James Thomas, was, in May 2000, National Security Manager for Sigma. He acted as Sigma's liaison person with the Drug Squad which was represented by Paton. An exchange of emails between Thomas and Nicholson on 9 May 2000[8] demonstrated that Thomas was alert to the security issues for these purchases. On that particular day, the squad had purchased a significant quantity of Sudafed and Thomas stated that he experienced no concern from the company's viewpoint because the dealings were confined to the same police officer and it was not necessary to ascertain his identity every time he attended.

18 Graeme Lionel Sayce was a police member from 1981 until March 2000 and between October 2001 and August 2006. In the period between March 2000 and September 2001 he was employed by a company operating as the Strategic Security Alliance Group (SSA), the clients of which included Sigma Pharmaceuticals. SSA provided a security consultation and guarding services for Sigma Pharmaceuticals. Accordingly, Sayce worked with Sigma officers, Thomas and Nicholson. During his employment with SSA, Sayce was aware that Paton was the main contact person between Sigma and the Drug Squad for the purpose of purchasing chemicals or drugs. The contact person at Sigma was Thomas or his assistant Debbie Sierakowski. Sayce recalled seeing Paton at least once and possibly twice at the Clayton plant during 2000.

19 DE stated that, in late April 2000, Moran made a request for pseudoephedrine, which he (DE) then passed onto BC, whose initial response was that pseudoephedrine would not be available. However BC subsequently indicated, in May, that it could be provided in small quantities if Moran wanted it. DE stated that he so informed Moran who said that he was interested.

20 When he was advised by the applicant that a kilogram of this substance could be provided at a price of $12,000, BC conveyed this information to DE, who confirmed that it was wanted. BC said that he informed the applicant of this response, who approved the transaction.

21 Paton stated that he was directed by the applicant to secure two kilograms of pseudoephedrine and that he then followed the normal procedure of contacting either Guy or Nicholson by telephone.

22 On 18 May 2000 at about 11.14pm, Nicholson forwarded an email to Guy requesting the supply of two kilograms of pseudoephedrine to Paton by 2.00pm the next day.[9]

23 Paton had two mobile telephone accounts.[10] One of them was in his own name, while the other was in the false name, 'Craig Grundy'.

24 On 19 May 2000, Paton used police motor vehicle registered PWE-990. The log for that vehicle recorded that it was signed out at 6.10am, on 19 May 2000, was returned at 11.10pm and had travelled about 50 kilometres that day.

25 DE who was living in the country stated that he made arrangements to travel to Melbourne on Friday 19 May 2000 for the purpose of the proposed drug delivery and also to meet his brother for lunch.

26 BC made a telephone call to DE at 8.37am. He stated that that call was to ascertain what time DE would be in Melbourne.

27 DE made a telephone call to BC at 9.42am while in the Essendon area. He stated that, by this time, he had already collected the money from Moran who he had met behind a garage in Curzon Street. BC was recorded to have made a telephone call to the applicant at 9.44am.

28 DE's next call to BC was at 10.14am from the Essendon region. He made another telephone call to BC at 10.33am from the Maribyrnong area. An unrelated call was made by DE at 11.02am also from the Essendon area.

29 Paton made a call from his 'Grundy' telephone at 10.48am to Nicholson at Sigma. A further call was made to Sigma Croydon at 10.52am. Paton stated that this latter call was to indicate that he was on his way.

30 A telephone call by DE to BC was made at 11.41am from the Ascot Vale area which placed him as quite close to BC's office at Moonee Ponds.

31 DE stated that calls recorded at 11.51am and 12.01pm in the Parkville area related to his arrangements to have lunch with his brother. The next two telephone calls made by him at 12.05pm and 12.55pm were also from the Parkville area.

32 BC made a telephone call to the applicant at 12.05pm and two further calls at 12.21pm and 12.22pm.

33 BC made a call to DE at about 12.34pm which BC believed was close to the time that he met DE in the vicinity of his office.

34 According to DE, upon arrival at BC's office, he was advised that the amount of pseudoephedrine would be two kilograms at a price between $12,000 and $14,000. He stated that he then went to obtain the money from Mark Moran.

35 While Paton was in the Knox region, he made a call to Detective Senior Constable Firth at 12.38pm and then one to the applicant at 12.43pm.

36 Telephone records indicated that Paton made a telephone call to 'Sigma Clayton' at 1.29pm.[11]

37 David Guy went to the relevant vault at Sigma's Croydon plant where two kilograms of pseudoephedrine were measured out and the drugs were dispensed into a heavy-gauge plastic bag which bore a label identifying the material with an item number, a batch number, a date and a quantity. He placed that bag into a brown paper bag before taking it out for collection.[12]

38 Usha Gulapalli is a chemist who was employed by Sigma Pharmaceuticals in 1999 and 2000. A test was conducted by her on the batch from the two kilograms extracted on 19 April. It was found to consist of pseudoephedrine hydrochloride with a purity of 99.7 per cent. She stated that, according to British Pharmacopeia standards which have a testing error margin of plus or minus one per cent, the material was pseudoephedrine in the purest state possible.

39 The receipt for the collection of two kilograms of pseudoephedrine on 19 May 2000 was signed by both Paton and Guy[13] and was in the amount of $340.10. That document also records that payment by cheque was not received until 15 August 2000. This transaction is also recorded in Sigma's computer records.[14]

40 Payment for the material was made by way of a Bank of Melbourne bank cheque dated 20 June 2000 and purchased with cash by Mr S Paton. The cheque was received by Sigma under cover of a memorandum addressed to Guy from Paton.[15]

41 After Paton collected the pseudoephedrine which was packaged in a heavy-duty plastic bag inside a heavy duty brown paper bag, he then made a telephone call (at 1.24pm) to the applicant. He said that he was not certain whether it was at this time or in a later call that he told the applicant that he had picked up the material and requested instructions as to where to meet him.

• DE made an unrelated telephone call from the Parkville region at 1.29pm, another to BC at 1.30pm and an unrelated call at 1.47pm, also from the Parkville region.

• Paton made two further telephone calls to the applicant at 1.44pm and 1.45pm.

• A telephone call was made by BC to the applicant at 1.53pm.[16]

• Paton made a telephone call to the Victoria Police Switchboard from the North Melbourne region at 2.01pm and another from the Port Melbourne region at 2.02pm.

43 Paton stated that he received instructions by telephone from the applicant to meet him at the Shell Service Station off the Westgate Freeway, near the eastern approach to the Westgate Bridge. Upon arriving there, he drove into the parking area at the rear of the service station where he recognised a dark green Toyota Vienta that was normally driven by Detective Inspector Reid. The applicant was seated in the car alone. Paton placed the package he had collected in the rear seat of that vehicle. He was not aware of any surveillance being put in place for this transaction and did not arrange for any.

44 A telephone call was made by the applicant to BC at about 2.11pm from the Port Melbourne area.

45 BC then went to an area behind the VicRoads Office beside the Westgate Freeway and waited. In due course, the applicant arrived driving a grey Toyota Camry. The applicant got into the passenger side of BC's car and handed BC the plastic bag containing the pseudoephedrine. The applicant then left.

47 At 2.53pm DE made an unrelated telephone call from the Sunshine North area. He stated that this call was made shortly before his meeting with BC at around 3.00pm.

48 DE stated that, after he collected the money from Moran, he waited for a call from BC advising of the place where they were to meet. When contacted, BC told him to go to a petrol station situated on the Western Ring Road, off the northbound side, heading towards Melbourne Airport. DE stated that he went there and waited. BC arrived and handed over the pseudoephedrine which was contained in a black sports bag in exchange for the purchase money. DE stated that they were together less than five minutes.

49 BC said that he drove to the service station, where DE was waiting, and handed over the plastic bag containing pseudoephedrine. BC saw DE drive away along the Ring Road towards the airport and then contacted the applicant on his mobile telephone advising him of details concerning DE, it being his normal practice to do so for surveillance purposes. He stated that he then returned to his office.

50 At 3.24pm DE made a telephone call to BC from the Beveridge area in the course of his return to Euroa.

51 At 4.34pm BC made a telephone call to the applicant.

52 DE stated that, upon his return to Euroa, he tested the powder to ensure that it was pseudoephedrine, employing a method that Moran had described to him. This involved the placing of a small amount on some silver paper and holding a cigarette lighter flame underneath until the powder melted into liquid. He had been told that, if genuine, when it cooled the powder should return to its original form. DE confirmed that the weight of the material he collected was two kilograms.

53 Paton's diary for 19 May 2000 recorded that he commenced work at 7.30am on Friday, 19 May, and ceased at 5.30pm having been 'ON DUTY AT OFFICE, CORES & ENQ RE OPERATION VERE.'[17]

54 BC identified the Log Book entry for police motor vehicle PKR-150, a Toyota Camry, for 19 May 2000, as having been filled out in the applicant's handwriting[18] and recording a car trip commencing at 1.50pm and ending at 2.50pm with odometer readings indicating that a distance of 18 kilometres was travelled. Save for two other entries on that page recording the vehicle being used by the applicant, all other entries indicated use by 'D REID' - 'DDI'. BC also identified the handwriting in the Police Diary as that belonging to the applicant.[19]

55 DE stated that the two kilogram package he had collected from BC was delivered to Moran in the Essendon area in the first week of June 2000.

56 Jeffrey Robert Milne occupied a bungalow at the rear of premises in Bell Street, Airport West. He stated that in the period prior to the murder of Mark Moran, on 15 June 2000, Moran commenced using his bungalow as a place to keep some of his drug manufacturing equipment and other items.

57 After the death of Moran the police obtained a warrant to search Milne's bungalow. It was executed on 16 June 2000 by Drug Squad members, Paton, Firth, Rosenes, Jones and Arnott. Various items of drugs and drug-trafficking paraphernalia and laboratory glassware were located.[20] In a cupboard on the premises was a bag of white powder which Paton recognised as the one that he had delivered to the applicant on 19 May 2000. However he did not mention this to anyone.

58 DE stated that the bag and the bag of white powder contained therein[21] were similar to the package he had received from BC.

59 Rosenes was involved in the collecting of the items taken from Milne's bungalow. Upon his return to the Drug Squad office, he had them set out on his desk. They included three bags of white powder, one of which weighed two kilograms (and identified as the one in Photograph 33), while the other two weighed about half a kilogram each. He conducted spot tests to ascertain whether they were drugs. The test for amphetamines was negative for all. Most of the other detectives, including the applicant, gathered behind Rosenes as he completed his amphetamine tests. At this point, the applicant came forward, put his finger into the large white bag, put it to his mouth, tasted it and told everyone that it was pseudoephedrine. Rosenes had not conducted any test for pseudoephedrine at that stage. Rosenes stated that, 'I thought it was a pretty brave and gutsy move of him to do that, not knowing what the powder was.' He said that, notwithstanding what one saw in the movies, Drug Squad members were trained to behave much more carefully when handling chemicals that had not been identified.

60 Later in the evening, after Milne was arrested, Paton asked Rosenes to remove some of the pseudoephedrine from the larger bag. He complied and took the three bags of white powder down to the car park of the St Kilda Road police complex, where he placed them in a Nissan four-wheel drive vehicle that was used by the squad. He then drove to Toorak Road and ordered some pizzas for the detectives and Milne to eat that night. While they were being prepared, he went to a supermarket in Clarendon Street, South Melbourne, where he purchased two packets of Glucodin powder and requested several extra white plastic shopping bags. He collected the pizzas and returned to the basement of the St Kilda Road Police Complex. After taking the food to the office, he went back to the vehicle where he removed half the contents of each of the three bags of white powder, and substituted the equivalent quantities of Glucodin. In the process, he spilt some of the powders in the back seat area. He then took the three adulterated bags upstairs to the Drug Squad offices and re-weighed them to ensure that they tallied with the weights he had previously obtained. At this stage, he believed that the smaller bags also contained pseudoephedrine. Subsequent analysis disclosed that this was not the case and that they actually contained ketamine. He had, in consequence, mixed both ketamine and Glucodin with the pseudoephedrine. The powder he had removed from the bags was taken home.

61 On 19 June 2000, the three bags of white powder that had been retained at the Drug Squad were taken by Rosenes to the Victorian Forensic Science Centre and examined by Eleanor Sear, a forensic scientist, in his presence. The large bag weighed 2488.2 grams and the other two bags combined weighed 992 grams. The contents of the smaller bags were 50 per cent Ketamine and the large bag was six per cent Ketamine. The large bag also contained 35 per cent pseudoephedrine. Sears said that there was a margin of variation of 20 per cent in respect of all estimates of purity.[22]

Rosenes' account of the dispersal of the removed powder

62 Rosenes stated that he told Paton that he had removed the powder as requested. He kept it at his home for at least a month before speaking again with Paton. It was his understanding that Paton had intended to sell it to an informer and that the transaction had fallen through. Rosenes stated that, at Paton's suggestion, he then approached one of his own informers and supplied him with a one ounce sample. However the informer contacted him some days later and said that the purchasers were not satisfied with the purity of the material. At another meeting, the informer took a pound of the powder in exchange for $800 on the understanding that a balance of $4,000 would be paid after it had been supplied to the informer's client. Rosenes stated that Paton and he maintained observation over the informer's premises and saw a known drug-trafficker go to the house to collect the powder. They followed that person's vehicle to the vicinity of another known drug trafficker. He stated that they subsequently met with the informer and were told that he had not been paid and that he did not anticipate that he would be because the purchasers were not happy with the quality of the material supplied. Rosenes said that the powder remaining in his possession was subsequently flushed down the toilet.

63 Sayce said that he recalled a discussion with Thomas in late 2000, about the need to arrange a meeting with the Drug Squad to review the policies and procedures relating to the purchase of pharmaceutical products from Sigma. Thomas had raised this issue as a consequence of his impression that there had been an increase in the frequency and volume of such transactions. Sayce stated that he agreed and attempted to arrange a meeting without success.

64 Sayce recalled an occasion in mid-December 2000, on which Thomas and he had travelled interstate and they met at Sigma's Brisbane premises. After his return to Melbourne on Monday 18 December, he attended at the Clayton plant for a meeting with Thomas, who told him that, while he was in Brisbane, Paton had asked Thomas' assistant, Debbie Sierakowski, what Sayce knew about the purchases of Sudafed tablets on behalf of the Drug Squad, indicating that it was important that he not be made aware of the specific details as he was not a member of the Police Force and these were covert operations. Sayce was troubled by this report which in conjunction with the apparent increase in the Drug Squad purchases had the effect of emphasising in his mind the importance of reviewing the policies and procedures for sales to the squad.

65 On the following day, Tuesday 19 December 2000, at about 9.15am, Sayce contacted the Drug Squad and asked to speak to the applicant who was Acting Inspector in charge of Unit 2 at the time. However, as he was not available, Sayce spoke to Detective Inspector John David Shawyer, who was in charge of Unit 3.[23] Although much of their conversation related to social matters (they were friends), Sayce told Shawyer that he had telephoned to speak to the applicant about concerns he had with respect to the security processes in place for the sale of chemicals by Sigma to the squad. Sayce asked Shawyer to request the applicant to telephone him.

66 Shawyer recalled that Sayce told him that he was conducting an audit of the procedures for selling chemicals to the Drug Squad and mentioned that the paperwork was not up to the standard he would have liked. Shawyer passed the message to the applicant between 9.15am and 12.30pm.

67 Later that day, Sayce received a telephone call from the applicant to whom he conveyed his wish to meet concerning policies and procedures. He pointed out that there was an increase in the frequency and volume of sales and that he was troubled by the comment that Paton had reportedly made to Sierakowski. They agreed to meet that afternoon at 1.00pm at a café in Albert Road, a short distance from the St Kilda Road Police Complex. Sayce believed that he either faxed some documents relating to these sales to the applicant or informed him of their contents over the telephone.

68 When they met, they discussed the increase in frequency and volume of purchases and the need to review policies and procedures. Sayce told the applicant that the comment made by Paton was surprising because only a few weeks earlier, Sigma had requested that he be present when the police had purchased a large amount of pseudoephedrine-based tablets. It had been indicated to him that his presence was required so that he could verify to Sigma staff that the persons collecting the drugs were members of the Drug Squad who were personally known to him. Sayce stated that the applicant asked him to obtain documentation pertaining to the sales of drugs, expressing particular interest in purchases made after a date in May 2000. It was agreed that they would meet again in the New Year to review the issues of policies and procedures. He said that the applicant did not give any indication as to whether he regarded the purchases from Sigma as legitimate or otherwise.

69 On Wednesday, 20 December 2000, Sayce collected an envelope from Thomas containing copies of the documents relating to all purchases made by the Drug Squad.

70 At 9.20am Shawyer spoke to his superior, Detective Superintendent Newton, about the call he had received from Sayce on the previous day. He said that great importance was attributed to the relationship they had with Sigma and he believed it was his duty to pass on such information. He did not believe however that anything improper or untoward had actually occurred.

71 At about 9.10am, Newton and the applicant had a discussion in Newton's office. Newton noted in his diary that three different issues were discussed. One of the notations was, 'Pending Query - Sayce Chemicals.' Newton formed the view that Sayce had contacted the applicant about what appeared to be suspicious transactions and, in consequence, the applicant was directed to prepare a briefing paper.

72 Newton spoke to the applicant again at 11.50am and was advised that he had made contact with Sayce and that a list of the chemicals obtained was being cross-referenced to operations.

73 In the afternoon, Sayce was present at a Christmas function with an SSA client, when he was contacted by the applicant who asked whether he had the documents relating to sales of materials to the squad and where they were located. Sayce responded that he intended to arrange for them to be delivered to the applicant sometime that afternoon. Otherwise he would endeavour to have them forwarded on the following day.

74 On Thursday, 21 December, at 2.25pm, Newton contacted Commander Sprague at the Ethical Standards Department (ESD) and advised him of the drug diversion issues in order to alert him to the possibility that they may have had a problem. He reported that a member of the Drug Squad may become the subject of an investigation and, accordingly, that the matter had to be handed over to ESD.

75 At about 3.30pm, Newton received a further update from the applicant who now had advice from Sayce.

76 On Thursday, 21 December, Sayce met with Nicholson at Sigma Pharmaceuticals.[24] They discussed the sales of pseudoephedrine-based tablets to Paton. Nicholson told Sayce that Paton had been involved in the purchase of pure pseudoephedrine on four or five occasions, including a quantity of two-and-a-half kilograms on 19 May 2000. Sayce was told that Paton had advised the Sigma officers that this was required for a covert NCA Operation. Sayce stated that this was the first time that he had heard about pure pseudoephedrine being provided to the Drug Squad.

77 After the meeting, Sayce attended to other appointments before making contact with the applicant. They met at about 11.20am in Bowen Crescent, on the corner of St Kilda Road, near the St Kilda Road Complex. Sayce handed the documents over to the applicant who remonstrated with him for having told Shawyer about what was happening as Shawyer had pre-empted the issue with the applicant's immediate superior. He said that this had caused him embarrassment. Sayce told the applicant, who appeared to be aware of them, that he had learned of the sales of pure pseudoephedrine from Sigma to Paton.

78 In a later conversation, the applicant requested the originals of the copy documents that had been provided to him. Sayce returned to Sigma where they were retrieved. He was present when a facsimile transmission, used as a check sheet for identifying and collecting the original documents for each transaction, and setting out dates of details of the various transactions in 2000 from 9 May 2000 onwards, arrived from the applicant.[25] The transactions listed related to the purchase of Sudafed tablets only.

79 Afterwards, Sayce contacted the applicant and told him that he had the transaction records. The applicant told Sayce to retain them because the matter was now in the hands of the ESD and the documents would be collected by them in due course.

80 Paton stated that on the night of 21 December 2000, he received a visit from Rosenes who told him that there were issues regarding the Sudafed transactions and that it had been decided that it was in the best interests of everyone if Paton resigned.

81 Paton then typed a letter of resignation which he signed and gave to the applicant. According to Paton, the applicant said at that time, or shortly afterwards, that if Paton said anything about him, he would hunt him down and kill him. Paton then went on leave and never returned to the office.[26]

82 At 9.30pm, Newton received the briefing paper that he had requested the applicant to prepare.[27]

83 On Saturday, 23 December, Newton received a telephone call from the applicant who informed him that Paton had resigned and that his resignation was effective immediately. He did not recall the applicant saying anything as to the reasons behind Paton's decision and the applicant gave no indication that he was in any way responsible for or involved in it.

84 At 12.30pm, Newton contacted Commander Lambert. Newton had already decided that he was not going to accept Paton's resignation and would require the giving of the minimum three months notice applicable to his contract of employment.

85 Newton then telephoned Paton and told him that he would not accept his resignation unless he could produce a letter from an employer saying that he would be in a position to take up employment immediately. He said that, if he could not do so, the resignation would be effective from the following March.

86 On 27 December, Commander Fontana briefed a team for an investigation into the transactions involving Paton, which was designated 'Operation Hemi.' He had the briefing paper that the applicant had provided to Newton on 22 December. Detective Inspector De Santo was placed in charge of this investigation. Fontana believed that he had telephone contact with the applicant on that day.

87 At 9.20am, Newton told the applicant that Paton's resignation was not accepted, that three months notice was required and that all outstanding issues were to be addressed.

88 On 28 December at 10.30am, Fontana met the applicant at a café in South Melbourne. The purpose was to inform the applicant of the membership of the investigation team and to ascertain which members of the Drug Squad could assist them with their enquiries. The applicant advised Fontana that Paton had intended to resign 12 months earlier and that his motivations included the considerations that: Paton had been under a deal of pressure and knew that he was going to be relocated; Paton's father, who lived in Queensland, was dying of cancer; Paton's paper work was poor due to pressure from several areas; a number of overdue property files were missing along with telephones that he had used as well as a computer that had been taken from the property store; and Paton's third marriage was in trouble. Fontana stated that the applicant and he discussed the unauthorised deliveries. The applicant agreed to assist by providing any Drug Squad documentation relating to his audit of the chemical diversion programme. At this stage, the concerns of the witness related to the possibility that Paton had been trafficking Sudafed tablets. The only mention of pseudoephedrine in the conversation was made in reference to an unconnected importation of that chemical.

89 At a time which Sayce placed as being between 22 December 2000 and 3 January 2001, he had a conversation with the applicant in which the applicant said that he did not want anyone to be told about the sales of pure pseudoephedrine from Sigma. Sayce assumed that this was because it was part of an ongoing investigative operation.

90 On 3 January 2001, Sayce received a telephone call from Detective Superintendent Fontana of the ESD. Fontana's notes of this conversation were read to the court and the matters related by Sayce included the supply of two kilograms of pseudoephedrine on 19 May 2000 to Paton.

91 Detective Senior Sergeant James Dwyer was brought into Operation Hemi on 5 January 2001. On 13 February, he spoke to Nicholson at Sigma's Croydon Plant who advised him that there had been a number of sales of pure pseudoephedrine as well as Sudafed tablets. He asked Nicholson to gather together as much information as he could in respect of those transactions.

92 On 14 February 2001, the applicant provided a one-page report entitled 'Audit of Chemical Purchases from Science Supply - Discrepancies Found.'[28] This report related to purchases of acetic-anhydride from 'Science Supply.'

93 On 28 February 2001, at 1.30pm, Newton attended a meeting at the ESD at which the applicant and Inspectors De Santo and Taylor were present. The applicant was asked whether his audit had disclosed any pure pseudoephedrine purchases. The applicant said there had been no authorised purchases since 1998. Otherwise no other issues were raised about pseudoephedrine. The applicant did not indicate that he had any knowledge of pseudoephedrine having been supplied to Paton.

94 On 27 March 2001, Taylor had a conversation with the applicant who reported that he had proceeded as far as he could in relation to his enquiries with the chemical companies and that he had not identified any further incidents. Taylor told him that the ESD would require statements from Newton and himself as well as other documents and details about Paton. No reference was made to pure pseudoephedrine hydrochloride in this conversation.

95 On 30 March, Taylor had another meeting with the applicant in a café on St Kilda Road. Again there was no discussion about pseudoephedrine hydrochloride as distinct from Sudafed tablets.

96 Dwyer said that, on 3 April, he attended Sigma's Croydon Plant and spoke to Nicholson and Guy and obtained a number of documents relating to five separate purchases of pure pseudoephedrine. A meeting was conducted at 11.30am at the ESD office between O'Dwyer, Taylor and the applicant in the course of which the applicant was provided with a copy of these documents. The applicant was directed to conduct an audit in relation to their contents and to check Drug Squad records for comparison. The documents related, inter alia, to the supply of pseudoephedrine on 19 May 2000. The applicant did not give any indication that he had knowledge of any of those transactions.

98 On 20 August 2001, Fontana took a statement from the applicant for inclusion in the Brief of Evidence being compiled in respect of Paton.[29] In that statement, he set out the findings made in the 'audit' conducted after 19 December 2000. He asserted that he had no knowledge of the unauthorised collections of Sudafed and other chemicals. He advised that there were no authorised collections of pseudoephedrine during the period 1999 and 2000. He stated that only one controlled delivery of pure pseudoephedrine was ever conducted. That was made in August 1998 and the quantity was 10 kilograms. He said that other operations were conducted where a substitute product was used. The use of pseudoephedrine in quantities greater than 20 grams would, he understood, only be authorised in exceptional circumstances and never without the approval of an Assistant Commissioner.

99 On Friday, 13 September, prior to a lunch to be held by the Major Crime Squad, BC and the applicant met in a coffee shop near BC's office and discussed the ESD investigation of the pseudoephedrine transaction on 19 May 2000. According to BC the applicant said that, 'it never happened' and indicated that this had to be made clear to DE as well. After this meeting, BC contacted DE to pass on what he interpreted as a direction.

100 The police intercepted a series of telephone calls between the applicant and BC that took place on 25 October.[30] The first was quickly terminated because BC had someone in the office. The second sounded out the prospect of a meeting later in the day. During the third call, the applicant said that he would be 'dropping in' shortly and BC said that they would meet at the coffee shop.

101 A telephone call, on 4 November, between BC and the applicant in which there was reference to Inspector De Santo was also intercepted.[31] They discussed the approaching Oaks Day races at Flemington and agreed to meet then.

102 BC recounted that they met in the Bird Cage area at Flemington Racecourse and that, in the course of their conversation, the applicant handed him a list in the applicant's hand writing of the dates of authorised drug transactions.[32] BC noticed that it did not include any which had occurred prior to January 2000 or the transaction of 19 May or make any reference to pseudoephedrine.

103 In January or February 2003, BC and the applicant met at the coffee shop near BC's office. Again, BC said the applicant emphasised the importance of maintaining the stance that, as far as they were concerned, the pseudoephedrine transaction of 19 May had not occurred.

104 On 11 March, the police intercepted a telephone call between the applicant and BC which commenced at about 11.11am.[33] In that call they discussed meeting again in the near future.

105 Police intercepted a telephone call on 15 March, between the applicant and BC commencing at about 12.20pm, followed by further calls at 12.37, 12.51 and 12.53pm.[34] These calls were a lead up to a meeting at the McDonald's store at the intersection of South and Warrigal Roads, Moorabbin. BC attended, fitted with a covert sound recording device.[35]

106 BC indicated to the applicant that they had a problem with DE who he identified as 'our little mate up the bush, up north'. He said that DE had been questioned by investigators on the previous day and was very agitated. BC said DE had tried to contact him about it immediately afterwards and that they had spoken at about 7.00am that morning. DE had told him that he was not asked anything about the tablets and that 'they're zeroing in on that fuckin' pseudo ... and what's really ...' At that point the applicant interposed, 'Cos we don't know anything about it.' The applicant then said that he assumed that Paton had given them a 'story line' and that they must have been 'running with it.' BC said that he (BC) had been asked questions about matters that Paton 'wouldn't or shouldn't even know.'

107 Further discussion ensued about what Paton might have said or might say. The applicant said, '... he'll be standing in the box declaring that he's working for the police. Is he prepared to [sic] that?'

108 BC responded that he would go and 're-align' him (Paton) again.

109 The applicant said that it was up to him (Paton) and pointed that '... he could be interviewed as many times as he wants ... He knows the rules, he doesn't have to make any comment.'

110 The applicant stated that, when he was 'spoken to,' he would not be making any comment -

I'm not going to give them the pleasure of giving them a thousand answers to a thousand questions when they might find something that's just not quite right.

111 He pointed out that BC would also be interviewed and that he had 'to make no comment as well.'

112 The applicant told BC, 'If you make a statement you're in the same boat ... '

114 BC went on to say, 'No, you're the brains of the operation, you can fix it up ...'

No - I am not too happy about it. So that when it is, all criminal matters are thrown aside and they wish to go down the path of the disciplinary ones, well they can't interview me on those and I will not ... and then I can tell you get fucked.

117 The motor vehicle in which Rosenes had mixed Glucodin into the white powders was a green Nissan Patrol registration number QSD-083 that, in early 2001, was sold to Peter and Jenny Nugent. It was usually driven by Mrs Nugent and the interior had not been altered since purchase.[36]

118 On Sunday 2 June, the car was driven to the Victorian Forensic Services Centre at Macleod where it was examined by forensic officer, Peter Ross, who used a commercial vacuum cleaner fitted with an inline filter to remove material from specific areas of the carpet and the seats of the vehicle as well as the underside of the foot mat. The filter was removed and replaced for each separate area. Six such filters were separately bagged by Ross.

119 These filters were examined by Aaron Heagney of the Australian Forensic Science Laboratory in Sydney. The residue collected from the rear passenger bench seat contained pseudoephedrine and ketamine. A similar finding was made in respect of the rear passenger's compartment floor and on the rear passenger floor mat.

120 Gerard Curtin, a forensic accountant, employed by Victoria Police, analysed the applicant's banking records for the period 1 January 1999 to 31 December 2000.[37] He attempted to obtain all vouchers, deposit slips, withdrawal slips and cheques in respect of both of the bank accounts that he had and succeeded in obtaining most of them.

121 Insurance records were also examined to ascertain whether any rebates or refunds had been paid by Medicare and Medibank Private. The records of Ord Minnet, Stockbrokers, of purchases of shares by the applicant were examined. So were VicRoads records relating to the sale of the motor vehicle by the applicant and other records including tax returns.

122 Curtin created a chronological spreadsheet setting out all the transactions that he could detect.[38] This spread sheet excluded cash transactions under $100 unless they occurred within a bank statement. He did not count any transfers between the two bank accounts which in this case consisted of one transfer of $6,000. Wherever a receipt could be obtained for cash payments they were matched up with any relevant cash withdrawals.

123 Curtin also prepared a monthly cash-flow summary which set out the estimated monthly flow of money into the applicant's bank accounts and the outflows.[39]

124 Finally, Curtin produced a short chart of eight cash transactions for which Curtin could not find a source. Three of them were prior to 19 May 2000.[40]

125 Transaction 4 was a cash payment of $4,620 comprising 92 fifty dollar notes and a twenty dollar note for an invoice sum of $4,607 for 2000 Voicenet shares which was made on 7 June 2000 at 2.57pm at the Westend Branch of the Westpac Bank. The order for those shares was placed with Ord Minnet on 2 June 2000.

126 Transactions 5 and 6 were a cash payment amounting to $1,300 to Carpet Call Proprietary Ltd. The applicant admitted, pursuant to s 149A Evidence Act 1958 that, on 8 July 2000, he paid $1,300 to 'Carpet Call' as two cash deposits in the amounts of $1,050 and $250, for purchases of carpet, underlay and vinyl flooring for installation in his home.[41] The outstanding balance of $2,500 for these purchases was paid by cheque on 24 July 2000.

127 Transaction 7 was a cash payment of $597 for motor vehicle insurance made at the Head Office branch of AAMI Ltd on 21 July 2000 at 1.47pm.

128 Transaction 8 was a cash payment of about $1,000. On 19 September 2000, the applicant purchased a bank cheque in the sum of $990 and paid for it in ten one-hundred dollar notes. The cheques were purchased at the Collin Street branch of the Bank of Melbourne.

130 It was submitted on his behalf that much of the evidence against him was given by witnesses who could be seen to be inherently unreliable and with powerful motives of their own to incriminate him. In relation to count 5, counsel directed serious criticisms against the witnesses Paton, DE, BC and Rosenes. He was particularly critical of the role and approach that he claimed were adopted by De Santo in the matter, arguing that he exerted considerable pressure upon these witnesses in what was described as the 'fanatical' pursuit of the applicant. It was not disputed that the applicant met with Paton and BC on 19 May but it was denied that any pseudoephedrine was handed over. The operation in which the applicant was engaged was legitimate and concerned caffeine that was to be the subject of a controlled delivery on 22 May. That operation, it was said, did not proceed due to Mark Moran's request that the deal take place in the evening rather than during the day. This was unacceptable to the squad.[42]

Consciousness of guilt grounds (2A, 2B and 2C)

The next category of evidence relied upon by the Crown is that which involves post-offence conduct, including statements, by the accused which is said to demonstrate a consciousness of guilt on his part of one or more of the pseudoephedrine offences. The use to which the Crown seek to put this evidence is twofold. First, it is said to be relevant as to corroborating Paton's account. But, secondly, it is also said to be relevant in its own right as demonstrating the accused's consciousness of his own guilt of these offences.

Put simply, it means that the conduct of the accused must be conduct deliberately performed because the accused realised his guilt and feared that to have acted or spoken otherwise would implicate him in the offence. If you were satisfied that such conduct has those characteristics or qualities, then you can use it as indicating the accused has accepted his responsibility in this regard.

... [B]efore you would be able to rely upon such conduct by the accused as indicating a consciousness of guilt, as I have defined it, you would need to be satisfied beyond reasonable doubt that no other interpretation is open as a reasonable possibility but that it was conduct performed deliberately because the accused realised his guilt of the offences of drug trafficking and feared the truth coming out.

132 After hearing submissions from counsel, he then directed the jury in relation to the two 'pieces' of evidence that he had determined could be put before them on this basis.

The first piece of evidence that the Crown relied on is the meetings between the accused and [BC] in October 2002 and February 2003 in which, according to [BC], the accused insisted that the pseudoephedrine transaction never happened and told him to tell [DE] the same thing. The Crown argued that this was a direction by the accused to [BC] and [DE] to remain silent about the pseudoephedrine transaction. Thus, it was said that not only was this corroboration of Paton on count 5, it also evinced a consciousness of guilt on count 5.

His Honour then addressed the two limbs of the defence response to the prosecution contention, first, that it was disputed that either of the statements were made and, secondly, that, in any event, they would have been correct insofar as any conduct was attributed to the applicant with respect to it. He then reminded the jury of the items of evidence that the defence asserted could be seen to bear on each of them.

... I repeat that before you will be able to rely upon such a statement as demonstrating a consciousness of guilt, as I have defined it, you would need to be satisfied beyond reasonable doubt that there was no other interpretation open as a reasonable possibility but that it was said deliberately, as a direction to [BC] because the accused realised his guilt in the offence of trafficking and feared the truth coming out.

134 With respect to the other 'piece' or 'category' of evidence that could be considered in this way, the jury was instructed that -

The next category of post-offence conduct which the Crown relies upon as evincing a consciousness of guilt of drug trafficking involves the failure of the accused to raise the question of pseudoephedrine transactions with other police officers on a number of occasions following him being informed by Graeme Sayce on 21 December 2000 of the possibility of transactions involving pseudoephedrine. Thus, the prosecution pointed to the failure of the accused to mention the pseudoephedrine transactions to his superior, Inspector Newton, in December 2000, or subsequently, in his briefing paper of 22 December 2000, to Commander Fontana in their discussion on 28 December 2000, to Inspector De Santo and Senior Sergeant Taylor at their meeting with Inspector Newton and [the applicant] on 28 February 2001, and to any of the Operation Hemi investigators at any time in the period between 28 December 2000 and April 2001 when he was handed the Sigma Croydon documentation obtained by Senior Sergeant Dwyer on the previous day.

It was submitted by the prosecution that all of this was part of an attempted cover up by the accused designed to avoid detection. If this interpretation of the evidence is accepted, this would have the capacity to constitute a consciousness of guilt of all five counts of trafficking as well as to corroborate Paton on each of those counts.

He then repeated the process that he had just undertaken with respect to the first category.

135 In order that there should be no confusion concerning this aspect, the judge specifically excluded any other item of evidence as capable of being used in this fashion, instructing the jury in the precise form discussed beforehand with counsel and accepted by them as appropriate in the circumstances -

The two pieces of post-offence conduct which the Crown can rely on as arguably demonstrating the accused's consciousness of his guilt are therefore the two 'It did not happen' directives by [the applicant] to [BC], and the deliberate failures by the accused to respond to being told by Mr Sayce about the pseudoephedrine transactions. I direct you that as a matter of law no other post-offence conduct by the accused can be used by you as evidence of any consciousness of guilt on his part.

... It is important to note that finding an accused's acts show that he may have implicitly admitted responsibility for an offence is not the same as finding an accused guilty of that offence. At the most, those acts provide no more than that an accused believed that he was guilty of an offence. In other words, just because you find that the accused acted in that way, because he believed that he would otherwise be implicated in the offence does not mean that you must necessarily find him guilty of the offence. The behaviour of the accused is just one piece of evidence that you can use in making your final decision about whether or not the prosecution has proven guilt beyond reasonable doubt.

In summary, in applying the test that I have set out about the inferring of consciousness of guilt from post-offence conduct, there are four requirements that must be fulfilled. If any of these requirements are not met in relation to an account, you must not use it for that purpose.

First, you must be satisfied that the accused actually committed each of the acts alleged by the prosecution. This is particularly important here given that the defence disputes [BC's] evidence of the two conversations to the effect that pseudoephedrine did not happen, and that [the applicant] could only have failed to do something in respect of the pseudoephedrine transactions if he knew about them, and the defence disputes Mr Sayce's evidence that he told [the applicant] about the pseudoephedrine transactions on 21 December 2000.

Secondly, you must be satisfied that the act was done in the manner alleged by the prosecution and was not just an act typically or innocently performed by the accused. Thus, in other circumstances, saying to someone that a transaction did not happen may be quite consistent with innocence if the speaker does not know about the transaction. It may not demonstrate any consciousness of guilt.

Thirdly, you must be satisfied that the accused's acts related to some significant circumstance or event connected with the offence you are considering. If the accused acted in that way due to some completely different matter, his behaviour cannot be used to show that the accused implicitly admitted responsibility for the offence you are considering.

Fourthly, you must be satisfied that the reason why the accused acted in that way was because he believed that he had committed the offence you are considering, or some aspect of it, and he believed that he would be implicated in that crime if he did not act in that way.

It is for the prosecution to eliminate all of these other possibilities beyond reasonable doubt. If you cannot exclude the possibility that the accused acted for one of these other reasons, you cannot use his behaviour as evidence that he implicitly admitted responsibility for the offence. You may only use his acts in this way if you are satisfied that the reasons for those acts was that the accused believed he had committed the crime you are considering, or some aspect of it, and he believed that by not acting in that way, he would be implicated in it.

137 No complaint has been made concerning his Honour's statements of principle which were clearly in accordance with the various authorities.[43] The grounds raise issues with respect to the evidence itself and the use to which it could be properly put.

138 The complaints made under ground 2A (relating to the applicant's failure to mention pseudoephedrine) are that the evidence -

simply could not constitute an admission by conduct to any specific count. Alternatively, it was so equivocal that it could not do so to any standard of proof. Alternatively, it was of so little probative value that it should not have been admitted, given the clear prejudicial effect.[44]

139 There is no force in any of these contentions. The applicant was not only a police member with considerable experience in the area but also had direct responsibilities in relation to the operation of the Chemical Diversion Desk. It can be safely assumed that the possibility that unauthorised purchases had been made for corrupt purposes would have been recognised by him as immensely important given his experience and the nature of his responsibilities. There could be no doubt that he would also have appreciated the need for full disclosure of any knowledge that he had concerning the supply of chemicals to criminal groups, whether authorised or not, and specifically any transaction involving pure pseudoephedrine, a substance that had on only one occasion been approved for a controlled delivery, if only as a matter of self protection against unjustified suspicion Viewed from his perspective, disclosure that he had been overly enthusiastic in his pursuit of those operating clandestine drug laboratories, to the extent that, without securing necessary approval, he participated in what he understood was to be the controlled delivery of pseudoephedrine or not exercising proper supervision of the activities of his subordinates was one thing, albeit almost certainly leaving him subject to criticism for an error of judgment, and it was quite another to be engaged in serious criminal activity. If he indicated that he participated in or even knew of the transaction of 19 May before it took place, those conducting the investigation undoubtedly would have queried why he did not report what was happening or at least ensure that careful surveillance was conducted if it was being undertaken for legitimate purposes. On the other hand, if he asserted that he learned about it later, they would have wanted to know why he did not draw the matter to the attention of his superiors or initiate an investigation himself. The inference was clearly available that the applicant concealed his knowledge of the transaction because he appreciated that the consequence of disclosure would be an investigation into his own conduct with the resultant exposure of his involvement in the unlawful trafficking in pseudoephedrine.

140 Naturally, the jury would have had to consider the various possible motivations for his behaviour. We have set out sufficient parts of the judge's charge to demonstrate the considerable care undertaken by him to ensure that they were fully and correctly instructed on this aspect. As we have indicated, it has not been contended that his Honour fell into error with respect to the directions given to them but rather that the issue of consciousness of guilt on the basis of this evidence should not have been left for their consideration at all. We do not agree.

141 Similar complaints are made under ground 2B. The argument was advanced that the statement 'it never happened' was incapable of demonstrating that the applicant was conscious of any form of wrong doing. Interpreted according to the words used, it was said, the utterance can be seen to be nothing more than a bare denial. The inference for which the prosecution contended, that is, that it constituted a direction as to the stance to be taken if the subject of the 19 May transaction arose in the course of investigation, could not, the argument proceeded, be drawn in the circumstances and certainly not beyond reasonable doubt. Again we disagree.

142 The meaning ascribed to a particular expression is not ascertained simply by reference to the words employed, but may involve consideration of many factors, including the tone in which they are uttered, the background against which they are spoken or written and the identity of the person using them, bearing in mind his or her relationship to the individual addressed. Some years ago, for example, in a popular film, a principal character instructed his underlings to 'make an offer he can't refuse.' Those words were clearly never intended to convey the instruction that an offer of such overwhelming generosity was to be made that the individual would regard rejection as unthinkable, but rather that it was to be made apparent to the unfortunate recipient of the 'offer' that the consequences of non co-operation would be dire.

143 In the present case, there had been a transaction on 19 May and evidence that, by the time of the conversation with BC, the applicant was, at least, aware that there had been dealings in pure pseudoephedrine at around that time. According to Sayce, he had raised that matter with the applicant in about December 2000. There was independent and uncontested evidence concerning the actual receipt by Paton of pseudoephedrine from Sigma. He claimed that it was passed on to the applicant and there was circumstantial support for his version in the evidence of the telephone traffic on 19 May, some of which directly involved the applicant, and of the movements of Paton, DE, BC and the applicant at relevant times. It is also to be taken into account, in this context, that no mention was made by the applicant of the securing of any of that material in his reports or discussions with his superiors. These circumstances inevitably would give rise to the question: what might the statement represent? Whether or not the interpretation ascribed by the prosecution to the applicant's expression was accepted by the jury to be the only reasonable one in the circumstances was properly left to them and they were provided with appropriate instructions and warnings concerning this matter.

144 Although the trial judge decided that only the evidence we have discussed was capable of supporting the inference of consciousness of guilt, the Crown had, in the course of the trial, adduced other evidence upon which they proposed to rely in the same way. This included evidence indicating that the applicant may have secured Paton's resignation, that he threatened to kill Paton, and what were claimed to be other displays of guilty knowledge or behaviour.

145 Following the judge's ruling that none of this evidence could be used as evincing consciousness of guilt, counsel for the applicant expressed concern about its potential prejudicial impact, arguing that it now had no probative value. However after consideration, he announced that no application for discharge of the jury would be made and indicated agreement with the manner in which the judge foreshadowed that he proposed to instruct the jury on this aspect. Notwithstanding that careful thought was obviously given by experienced defence counsel to the question whether the presence of this evidence had created such a risk of a miscarriage of justice in the particular circumstances that the jury should be discharged and the decision was made not to make an application, and further that there was clear acceptance that the situation could be addressed by the provision of agreed instructions, the contention has now been made that the trial can be seen to have miscarried on that basis. The view adopted by counsel at the trial cannot, of course, be determinative of the question whether a miscarriage of justice may have occurred and deprive an applicant of the opportunity to argue that a fair trial has not been had. However the assessment made at the time and in the environment of the trial by those engaged in the proceeding on behalf of the person who might be adversely affected will in the ordinary course of events be attributed considerable weight when considering the possibility that the trial may have miscarried.

146 It is by no means rare for evidence that has been adduced by the prosecution in the course of a criminal trial to be excluded from the jury's consideration entirely, or its use restricted beyond that which was initially anticipated or opened to them, when eventually all of the relevant material is before the Court and the real questions which the jury will need to determine emerge and are identified. Regardless of how carefully the admissibility and use of evidence is approached in pre-trial hearings or during the trial itself, this necessity cannot always be avoided. A piece of evidence that was initially perceived as important may later be seen to be of no value whatever, capable of confusing or diverting the jury in the performance of their function; or creating an unacceptable risk of prejudice to the accused. The circumstances in which this can occur are many and need not be explored here. If, in consequence of the introduction of the evidence, the trial judge forms the view that a risk of a miscarriage of justice may have arisen, consideration must then be given to the manner in which it can be addressed. In some circumstances, the discharge of the jury is required but more often than not the situation can be managed by the provision of appropriate instructions. That approach was not only reasonably adopted in this case but with the agreement of defence counsel.

147 When regard is had to the particular problems presented for both the prosecution and defence in the applicant's trial, it is easy to understand why the matter was dealt with as it was. The Crown case, at its heart, rested on the contention that the applicant abused his position and engaged in the supply to criminals dealing in drugs of a quantity of a chemical required for the manufacture of their noxious products. A substantial amount of the evidence on count 5, and in the trial generally, was given by persons who had themselves engaged in corrupt and seriously criminal conduct or were of dubious reputation. Their associations with others whose names and notoriety were well known were the subject of attention in the proceeding and relied upon to some extent by the defence. The trial was lengthy with a vast amount of evidence mostly relating to the counts on which the applicant was either acquitted or unable to reach a verdict. Considered in context, the particular items of evidence must have been viewed as, at most, of minor significance in terms of their potential prejudicial impact.

148 The environment within which the applicant's trial was conducted and the source and nature of important parts of the evidence required that the situation be approached with considerable care by both the judge and the jury if the risk of a miscarriage of justice was to be avoided. From the very outset, and before a single witness gave evidence or a word in opening was heard, the jury were instructed that they were to decide the case on the admissible evidence only and to be careful to exclude any feelings of bias or prejudice. Time and again in his charge, the judge emphasised the crucial importance of ensuring that they acted only on the evidence that was relevant and admissible on the specific count under consideration that they regarded as reliable and of using that evidence correctly. It is evident from the acquittal of the applicant on three of the four counts on which he was presented relating to alleged trafficking in pseudoephedrine and the failure to reach a verdict on another, and importantly the presence of features which distinguished the case against him on count 5 from that which could be seen to exist on any of the other counts, that the jury understood and applied those instructions. Nor is there any reasonable basis for concern that they may have been influenced in arriving at their verdict on count 5 by some form of prejudice or cross-contamination arising from the introduction of the items of evidence involved here. What is apparent is that the applicant was not convicted on any count dependent solely on the word of potentially unreliable witnesses. With respect to count 5, there was evidence linking him with the events of 19 May which supported the evidence of Paton and conduct which could be regarded as demonstrating his consciousness of guilt with respect to the specific transaction.

149 The trial judge directed the jury that there was evidence capable of corroborating Paton, who on his own evidence was an accomplice, namely -

(a) Regarding counts 1 to 4, all displays of unsourced cash before 19 May 2000.

(b) Regarding count 5, all displays of unsourced cash including those after 19 May 2000.

(d) Regarding count 5, the call charge records ("CCRs") for 19 May 2000.

(g) Regarding all counts and particularly count 5, the evidence of admissions by conduct (see above).

150 Again, it is evident from the verdicts returned on counts 1 to 4 that the jury did not regard any of these categories of evidence found to be relevant as sufficiently confirmatory of the reliability of Paton that they were prepared to convict the applicant on any of those counts. As we have pointed out, the situation with respect to count 5 was distinguishable and was so seen by them.

151 The trial judge's statements of principle with respect to the evidence of Paton were given in a conventional form and accorded with the authorities.[45] Again, there has been no complaint made that he fell into error at this level, save that it is asserted under ground 3B that his Honour fell into error in suggesting or directing the jury that a finding that the alleged corroborative evidence was 'consistent' with Paton's account could render that evidence capable of being used to support this witness, when, of course, mere consistency would not suffice for this purpose.

There is a rule of law which applies to witnesses who may be characterised as alleged accomplices. It is a rule which is founded upon a common sense recognition of the dangers which can arise in such situations. You should consider that it is dangerous to convict an accused person upon the uncorroborated evidence of an alleged accomplice. It follows that you first look for corroboration of the evidence of that person.

What is corroboration? In law, for there to be what is known as corroboration, it is necessary there be evidence independent of that of the alleged accomplice which tends to show both that a crime was committed and that the accused participated in the commission of it. You will appreciate that there are two aspects to corroboration. The evidence of the alleged accomplice requires corroboration, first as to the commission of the crime itself and, secondly, as to the participation of the accused in its commission.

When you find evidence which appears to support the alleged accomplice's evidence in a material respect, you should consider such evidence to determine two questions. First, whether you accept the evidence, because that is obviously always a matter for your judgment, and, secondly, whether in your opinion it does provide corroboration or support of the witness by tending to show both that the crime was committed and that the accused committed it.

I instruct you that if you were to find that the evidence of Stephen Paton was corroborated by independent evidence, to which I will shortly refer, you must nonetheless bear in mind that on his version of events he must be regarded as an accomplice and therefore he may well have a motive to tell untruths. That is, you still have to decide whether, after considering the totality of the evidence, you accept his evidence.

If you were to reject the supporting evidence to which I will refer as providing corroboration, then the evidence of the alleged accomplice would be uncorroborated and you should approach it in the following manner. First, you should remember that it is dangerous to convict an accused person upon the uncorroborated evidence of an alleged accomplice. Second, you should know that you are entitled to convict an accused on the uncorroborated evidence from an alleged accomplice, but you may only do so after you have subjected the evidence to close scrutiny and by such scrutiny have reached a conclusion that in the particular case, it is safe to rely on the evidence notwithstanding that it is uncorroborated and comes from a tainted source.

153 He then directed attention to the categories of evidence which he had concluded could be employed for this purpose. After dealing with the evidence of unsourced cash, the judge stated -

The second piece of evidence relied on by the prosecution as being capable of corroborating Paton's evidence is that in relation to count 5 there is the evidence of the entry in the motor vehicle log of 19 May 2000 which, in the timing of the entry and the distance travelled by the Camry vehicle may be regarded as capable of corroborating Paton's account of handing over the pseudoephedrine at Port Melbourne.

As the defence did not dispute that [the applicant] met [BC] near the Westgate Bridge on 19 May, but only that the meeting had anything to do with pseudoephedrine, it was submitted by the defence that the entry in the motor vehicle log was not corroboration of Paton's evidence about what happened on that day.

Thirdly, and again in relation to count 5, the Crown point to the movements of Paton on 19 May 2000 and the timing of them as delineated by the telephone records and the telephone contacts between the accused and Paton and, similarly, the movements of [DE] from Euroa, together with the telephone contacts between the accused and [BC] and [BC] and [DE].

However, it was argued by the defence that the movements of Paton, [BC], [DE] and the accused, and the telephone calls recorded on Friday 19 May were as consistent with arranging for the delivery of caffeine planned for the following Monday, 22 May, as they were for the pseudoephedrine transaction.

Fourthly, and linked with this prior item, and again in relation to count 5, the Crown rely upon the evidence of [DE] and [BC] as to the circumstances leading up to [BC's] conveying a request for pseudoephedrine to the accused and the evidence of [BC] as to the receipt of the pseudoephedrine from the accused who was in the Camry, and the evidence of both [BC] and [DE] as to the subsequent transfer of the pseudoephedrine to [DE].

The defence challenged the reliability of [BC] and [DE's] accounts of the events of 19 May for the reasons I will refer in detail in due course.

Fifth, the Crown rely on the phone charts for the various days on which the transactions are alleged to have occurred which demonstrate, so it is submitted, that telephone contact consistent with those transactions, occurred variously between Paton, [witness 4/199] and the accused in relation to counts 1 to 4, and between Paton and the accused, [BC] and the accused and [BC] and [DE] in relation to count 5. You have copies of those charts to examine.

Insofar as the phone charts are concerned, the defence argue that although they show that there was contact between telephones at certain times and places, they do not tell you what the conversations were about. That is, the charts do not establish that the conversations related to the illegal pseudoephedrine transactions. Thus, in relation to counts 1 to 4, the defence argument was that the telephone calls between [the applicant] and Paton were consistent with legitimate Drug Squad activities and in relation to count 5, the defence argument was that the telephone calls were consistent with arrangements being made for the proposed caffeine delivery.

In addition, there is the dispute about whether the half kilo was collected on 14 December or about a week later. The defence argue that if it was the later date, then the chart of calls recorded on 14 and 15 December is irrelevant. Thus, the defence take issue with all of the matters relied on by the Crown as being capable of corroborating Paton's evidence and to which I have just referred. As I have said, it is a matter for you to make a decision on which of the facts you accept.

154 We have set out these instructions in full as it becomes apparent from them that his Honour was not suggesting to the jury that mere consistency would suffice to render the independent evidence capable of corroborating the witness. His Honour had made clear that there had to be evidence tending to show that both the crime had been committed and that the applicant committed it. He had correctly decided that the evidence relating to movements and communications between relevant individuals, including the applicant, with respect to pseudoephedrine, the subject of count 5, was capable of providing that type of support. The defence response was that insofar as that evidence could be seen to be relevant and accepted it was consistent with innocent explanation and, taken at its highest, could be seen to be intractably neutral.

155 The contention advanced on behalf of the applicant that the evidence concerning the events of 19 May and the applicant's later conduct was incapable, in law, of providing possible support for that given by Paton as it was intractably neutral, lacks force. True it is that there was evidence that among the various materials that were the subject of controlled deliveries was caffeine and the defence asserted through cross-examination that the applicant was engaged in a transaction involving that material on 19 May. The applicant, it was claimed, had travelled to the vicinity of the West Gate Bridge and met Paton there as part of the preparation for a legitimate controlled delivery of caffeine which was to take place a few days later. Similarly the statement 'it did not happen,' even if made, could not provide support for Paton's evidence nor could his failure to mention transactions that he did know had occurred be seen as corroborative, counsel submitted. The argument had, at its foundation, the misconception frequently encountered in this Court that once an explanation or hypothesis for the conduct of an accused consistent with his innocence and which can be seen to be arguable on the evidence has been proffered by the defence, no inference adverse to him can be drawn. It rests upon the notion that the presentation of an alternative innocent explanation of the conduct involved deprives the evidence of any corroborative value. However, the fact that an accused person advances an innocent explanation or hypothesis with regard to some piece of otherwise incriminatory evidence does not in itself necessarily cause that evidence to be intractably neutral. The jury may well regard the proffered version as implausible in the circumstances or for some other reason properly reject it out of hand. As Winneke P made clear in R v Taylor,[46] it is a mistake to think -

... that evidence which is "neutral", in the sense that it is consistent both with the case being made by the Crown and the case being made by the accused, loses its capacity to be corroborative evidence. As Thomas J (with the agreement of Connolly J) said in the case of R v McK: ...

"I am unable to see why a party should be permitted to render evidence inadmissible or unusable by admitting it or part of it to be true. Such evidence may be consistent with both cases, but it is for the jury to say whether it regards the evidence as corroborating the complainant's evidence or not ... What is required is corroboration of the complainant's story in a material particular. ... What was needed having regard to the issues in the present case was evidence tending to show that the complainant's evidence ... was true ... [C]orroborative evidence does not itself need to prove the whole case or even a specific element ... It was also submitted that such evidence should not go to the jury as evidence capable of corroboration if such evidence is as consistent with the defence case as it is with the prosecution case. There is no such rule."

Thus, it seems to me to be clear from the authorities that it is not necessary that "supportive evidence" be consistent only with the prosecution case, or indeed be more consistent with that case than with the case for the defence - even if such a conclusion could be reached. R v Baskerville, above, is itself a prime example of that, because the written note there relied upon was, arguably, as consistent with the case made by the accused as it was with the case made by the Crown. As is commonly said, circumstantial evidence usually does give rise to competing inferences.[47]

156 In the present case, the jury were entitled to have regard to the evidence of the telephone traffic between the respective parties, including the times and identities of the parties involved, the sequence in which the calls were made and the locations of the callers, the applicant's movements as recorded in the car log book, and his subsequent failure to mention the transaction, as indicating that he played some part at least in the transaction and, indeed, one that he was careful not to disclose to the investigators. They were entitled, having regard to all of the circumstances, to reject the possibility that he was involved only in an operation connected with a drum of caffeine, as the defence implausibly asserted. We have earlier addressed the contention with respect to the statement 'it did not happen' and the failure by the applicant to mention that there had been pseudoephedrine transactions to his superiors. There is no need to deal with the evidence concerning unsourced cash before 19 May or the call charge records relating to counts 1 to 4.

157 With respect to the evidence of unsourced cash after 19 May, for reasons which will emerge when the grounds directed to that evidence are considered, we agree that it was incapable of providing support for Paton but have concluded that it could not have influenced the situation.

158 His Honour drew attention to the competing propositions and possibilities concerning each item of evidence that the jury had to consider when addressing the question of the existence of any support for Paton's evidence and correctly emphasised the burden and standard of proof applicable. There is no reason to suppose that they may have misunderstood or not have followed the judge's instructions concerning the principles to be applied when considering Paton's evidence.

The learned trial judge erred in declining to give a specific direction, in the nature of a Faure warning, to the jury regarding the witness BC.

159 As mentioned in the summary on 13 September 2002, BC met with the applicant in a coffee shop near BC's business premises. They had a conversation about the police Ethical Standards Department (ESD), 'investigating the pseudoephedrine transaction of the 19th of May.' BC gave evidence that the applicant 'emphasised that should I ever be asked anything in relation to it, that it never happened' and that if he, the applicant, was interviewed in relation to the pseudoephedrine he would adopt the same stance. BC said that the applicant told him to emphasise to DE 'that it never happened' and that he had had a subsequent meeting with the applicant in January or February 2003 where the applicant appeared very agitated on that occasion. BC believed that the applicant's home had been raided by ESD and gave evidence that on that occasion the applicant said again that he would be saying that the pseudoephedrine transaction had never occurred.

160 On 14 January 2003, and after being interviewed by ESD, BC agreed to make a statement to police. That statement implicated the applicant in the pseudoephedrine transaction of 19 May 2000.

161 In the course of cross-examination, BC agreed to the following matters. He agreed that he had been interviewed by police as a suspect in relation to the supply of pseudoephedrine to DE and that he had made a statement to police pursuant to the inducement that his statement would not make him subject to criminal liability unless it was proved to be perjury. He agreed that the interviewing police officer, Acting Commander Moloney, had told him that, if he recanted, he could be charged with conspiracy, together with the applicant. He agreed that Moloney had told him that it was intended that Jason Moran be interviewed and that he would have been 'highly concerned' if his role in the supply of tablets had been mentioned to Moran. He agreed that he had become an informer, had worn a covert tape in discussions with the applicant, and that he had been provided with an indemnity against prosecution by the DPP. It is submitted by the applicant that the concatenation of these factors called for a Faure[48] direction to be given to the jury about his evidence. It is submitted that a judicial warning was needed because it is 'improbable' that the jury members were meaningfully familiar with such matters or the effect of the combination of them, and that such circumstances lie beyond the experience of most citizens.

162 The warning which the applicant submits should have been given in respect of the witnesses BC and DE is a warning which is required to be given to avoid a perceptible risk of a miscarriage of justice. As stated in R v Miletic:[49]

Where there is no specific rule, the principle is that the judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice.

In that case the Court identified four aspects of that general principle. The first is that a perceptible risk is one that is real, or of substance, as opposed to a theoretical or insignificant risk. Secondly, the factors calling for the warning must be such that it would be unsafe to leave the jury to rely only upon the arguments of counsel. Thirdly, weight should be given by an appellate court to the judge's assessment of what was necessary in the circumstances of the trial. Finally, the consequences of failure to give the direction depend upon whether, in the event, there has been a miscarriage of justice. In Bromley v R,[50] Brennan J in referring to the circumstances in which a warning is required stated:

The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer ... "partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind": ... if the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the Court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given. As Barwick CJ said in Kelleher ...:

"The rule of practice as to the warning to be given to the jury is related to the reasons which have prompted it. In my opinion, it does not require a warning where those reasons have no play".

When the danger is not obvious to the lay mind, the absence of the usual warning may leave a Court of Criminal Appeal unable to say that a reasonable jury properly directed on the evidence would have convicted.[51]

In our opinion a distinction should also be drawn, in cases such as the present, between circumstances that it is well within the ability of the jury to assess for themselves and factors the full significance of which may be more apparent to the judge: cf Bromley v R ... and Carr v R ... Appellate intervention is much more likely to be warranted in the latter case than in the former. Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel's addresses, it is only in exceptional cases that a warning is required. More often it is simply a matter for the judge to decide whether or not it is appropriate to make a comment for the assistance of the jury.

164 In R v Weiss,[53] Callaway JA in reference to a Faure warning said as follows:

...The duty to warn in the manner contemplated by that case arises only where the factors which make the evidence potentially unreliable are so strong that it becomes unsafe to assume that the jury will rely on the arguments of counsel, even if those arguments are repeated and emphasized by the judge. Only then does it become necessary to give a warning which emanates from the judge with the weight of judicial office.

165 It should be observed that in the course of cross-examination BC agreed that he had been interviewed by ESD officers on 12 January and again on 14 January 2004 and that, at first, he had told them that he knew nothing of the pseudoephedrine transactions of 19 May 2000. He was cross-examined in detail about the circumstances under which he had made his subsequent statement to ESD implicating the applicant. This included reference to his business interests and the loss that he would suffer if he was prosecuted in relation to the pseudoephedrine transactions. He agreed that his working life 'would be finished' if he was charged in relation to offences thereto. It was put repetitively and forcefully to him that his evidence that he had delivered pseudoephedrine to the applicant on 19 May 2000 was fabricated and, in the course of his cross-examination, a videotape recording of the questioning of him by Acting Commander Moloney on 14 January 2003 was played before the jury and the videotape tendered as an exhibit. As stated above, each of the matters relied upon by the applicant as requiring a warning were the subject of cross-examination of BC.

166 At the conclusion of the evidence in the trial counsel for the applicant submitted to the trial judge that in the course of his charge he should give a Faure warning in relation to the evidence given by BC. The prosecution argued that no such warning should be given and that the circumstances were such that with the benefit of counsel's closing addresses, the jury would be well able to evaluate the evidence in the light of their own experience. It was submitted by the prosecution that there was nothing exceptional in the circumstances which required a warning. The trial judge accepted the submission of the prosecution and declined to give a warning.

167 In the course of his address, counsel for the applicant referred to each of the matters upon which the applicant relies as requiring the warning. On several occasions it was submitted to the jury that BC had been 'crunched' by those interviewing him and that he had told a false story implicating the applicant in the pseudoephedrine transaction of 19 May 2000. Counsel said BC was:

... a man who was put on the rack and forced to give evidence against [the applicant] or face the wreck of his life, which you all saw happening live and you will see it again in this closing address on a videotape of the Gap tape, seeing a man crunched, ... that man was crunched. What's he going to say? "No, wreck my life, I shall stand shoulder to shoulder with [the applicant]". That man, [BC], was stepped on. That's why he gives the evidence he gives.

In the end I say their case is based around Steve Paton who we say is a terrible witness. We say he's a selfish self-serving man who admits telling lies very frequently but we say he's lied an awful lot more than that. He's a person who had to blame [the applicant] for his own purposes.

There are two other accusers in 4/199 and [BC]. They are both unreliable witnesses - and we are going to go into this in a bit more detail soon. ...

[BC] is an unreliable witness. He was on the rack. He was placed on the rack by ESD. He got a major benefit for accusing [the applicant]. He gets a benefit for accusing [the applicant]. What's the benefit he gets? He saves his neck, he doesn't get charged. There was no dilemma about that. Moloney just put it to him fair and square, "There's a line there, you're either a witness or you're in the dock" and you have that charge sheet - it's exhibit number 97, have a look at it when you have time, exhibit 97, it's a charge sheet - even after, even after he agreed ESD still laid a charge sheet with his name on it and that was admitted by [BC]. In the course of that interview it was quite plain that he was told if he doesn't become a witness he is going to be trim taped and charged. It was clear to him, and we will go to the evidence about it later, but it was quite clear to him that if he was charged, he lost his business into which he had had put all of his super and which represented the only chance he had of a decent working life. That is why he said what he knew ESD wanted to hear. When he accused [the applicant], it's not a spontaneous explanation of what really happened - he knew very well what ESD wanted to hear. He'd spoken to [DE] before this interview and even when he went into the interview he knew what ESD wanted to hear, but when he was in there, there was just no doubt about it because Moloney said to him that it was two kilos of pseudo - and we'll go into the details of it later on but that's the fact, isn't it? I mean, you know, you have seen that tape, you know what he said. [BC] was well aware of what he had to say to save his neck and he said it.

... [BC] knew when he walked into that debriefing process that ESD were tracing [the applicant] with respect to the 19 May allegation of pseudoephedrine, and by virtue of the questions put by Moloney it became quite clear to [BC] what he had to say to save his neck, it became absolutely clear. He had to say that [the applicant] had given over pseudoephedrine on the bridge. That is what he had to say to save his neck ... It was quite obvious to [BC] what he had to say and it was just the big picture theme: "[The applicant] did it. I'm a witness, don't make me an accused". And in light of that, when he took the inducement, he's a witness who's got a purpose to serve and that is to save his skin and that might explain the sort of deadpan approach that he took in the witness box there. He's just got to tell that story, he's just doing what he has to do. He's got to tell that story. We are not suggesting it gave him any pleasure to do that, he's just a person who got crunched into telling a false story and it's a very unusual situation here, but it's actually live on tape when you see it happen.

Of course, you have to remember this as well, that [BC's] position was, and it was repeated on numerous occasions in the past, that to his knowledge there had only ever been one pseudoephedrine delivery and that was ... in 1998. ... [T]here is at least six different occasions where he confirmed that that was the position, that he did not do pseudoephedrine as part of this operation; so we're not simply dealing with a belated allegation, we are dealing with a belated allegation which comes after when he clearly and in terms denies it and says "No, that didn't happen".

Of course, it's his position now, or the Crown's position now that [BC] was lying about that, that he was not telling the truth, so this is their impeccable witness who on their own story is prepared to lie. It was said that there was a directive by [the applicant], but [BC] doesn't have to obey [the applicant], he's under no obligation to obey [the applicant]. ...

It's the fact that Moloney said on numerous occasions, "We want the truth," and the Crown stressed the fact that Moloney kept saying, "We want the truth." But that is not a guarantee that you're going to get the truth, if you keep telling the vulnerable person, the witness, what you think the truth is. You keep saying "We know [the applicant's] guilty, we know that, simple as that, signed off, I will not accept anything else," when you tell the witness, "I know what the truth is, now tell me the truth, or you'll be in the dock," what do you think you're going to get in a reply from a vulnerable witness who is exposed to his life being wrecked if he doesn't please you. The objective truth has got nothing to do with it. Like [DE], [BC] simply said what it took to save his neck to keep Moloney happy.

170 Counsel for the applicant returned to this theme on several occasions in the course of his address. Near the end of his address he said:

...When we come to what happened to [BC], you have all had this transcript up to your neck, I would imagine. I'm not going to take you to the whole thing. I had in mind to play you that tape, but it's been tendered as an exhibit now, so you can look at it in the jury room and I urge you to do it. We could all stand here wasting - everyone could watch it who has seen it before, but when you are the jury, you watch it when it suits you to watch it when you think, "All right, now we've turned to this bit, we'll have a look at what [BC] did." When you look at that, don't forget it's not just what's on the tape. Before the tape starts to roll, the evidence of [BC] is that Moloney put questions to him and he denied being involved. That is how the gap tape thing came to happen, that Moloney was putting to him, "We know it went through, simple as that," and Moloney put those questions to him prior to the gap tape beginning to roll, which were, we say, whatever motivated - we don't care two hoots what motivated Moloney and what was in his mind, but the effect of them was to say, "You're either a witness or you're an accused." It's true that Moloney kept saying, "Tell us the truth" but that is no use, because he made it clear, "We believe the truth is that [the applicant] did it. That's the truth, [the applicant] did it. Now tell us the truth." "Okay," says [BC]. "We didn't do pseudoephedrine." "Have a look at where you stand in life, [BC]." I mean, it's just hopeless ... The issue is doesn't it make [BC] more likely to say a story that's going to save his neck? And the answer is yes, of course it does. It makes it in [BC's] interest. Say what he thinks is going to keep ESD happy, say what he thinks is going to keep his job. I'm simply not going to take you through all the evidence about [BC's] business. You'll remember it. [BC] had put all his savings into this business and he had to have licences in order to keep it. If he was charged - there is no contest about this - if [BC] was charged with a crime, even if he's innocent, doesn't matter. Once he's charged, he's gone. Those licences will be suspended his business is finished. That was the equation. When Moloney put it to him, "Have a look at the situation you are in," that's what [BC] thought about and obviously that's what he thought Moloney meant and was referring to. There can be no doubt about that.

He was exposed. I think he said in the first of the debriefs he was a broken down copper. That might have been a bit of banter, because he also said he was making a lot of money out of serving documents on people who participated in picket lines, but he was a person who was exposed financially and he noticed that Moloney paid a lot of attention to the job when he spoke to him. In the debrief of 14 January - I will make these points, I won't read it out to you, you've got the transcript of the gap tape and you've got the tape and you can look at it. There is no doubt what happened; none. It's clear, however, and you can accept these facts because even [BC] admits them. It was clear to [BC] that Moloney believed the truth to be that [the applicant] did involve himself in pseudoephedrine and that [BC] did, too, so that was the truth according to Moloney. [BC] took the threats of Moloney to be threats that he was going to be charged, and says that ... [BC] agrees that he had Moloney and Murphy saying to him about [DE], "He backs you. He backs you," at a time before [BC] had actually said, "We did it," so what he's saying is, "He backs you if you say this." That is the implication, quite clearly. "He backs you." Well, [DE] doesn't back him. ...

... At page 1980, when Moloney said to him, "Have a look at the situation you're in," [BC] took that as a reference to the effect of the charge on his business and [BC] admits to the concern he had at a point ... He was very worried that was going to happen to him. In the gap tape, Moloney threatened to "trim tape" him, and [BC] took that to be a reference to threatening to charge him. Moloney also threatened to go and ask questions of Jason Moran. What was in Moloney's mind in doing that does not matter. The effect of doing that on [BC] was perhaps a secondary effect, but it's a bad effect because Jason Moran had nothing whatsoever to do with the crime, could not advance things about the crime. Really, that discussion of Moloney, whatever Moloney might have intended by it, had the effect of causing [BC] concern about safety for himself and more particularly for [DE], or more acutely for [DE]; for himself to some degree, and definitely for [DE] to be exposed to Jason Moran. These were the blokes who were running pseudo into Mark Moran just before he got shot. ... He said he took the inducement because he believed if he doesn't say [the applicant] gave the pseudoephedrine on the 19th, he'd be charged. That is the reality. Why did he do that? I've just put that to you. We say he took the inducement because he believed if he didn't say the story that they wanted to hear about [the applicant] handing it over, he'd be charged ... Why did he do that? The Crown say to you that [BC] realised that the police knew everything and it was pointless to deny it any further, but that is not right. [BC] realised, and must have realised, that Moloney didn't know much at all, didn't have a good grip on the facts at all. [BC] wasn't worried about the knowledge of the ESD; he was worried about their intention. He didn't care what they knew or didn't know. He was worried that they'd charge him. It didn't matter whether he was guilty or innocent. Once charged, he was a dead duck.

171 There can be no doubt that the jury were fully aware of the fact that until he was interviewed by police on 14 January 2003 BC had maintained that on no occasion had he and the applicant been involved in the supply of pseudoephedrine to DE. There can be no doubt that the jury were fully aware of the fact that after being threatened with being charged with conspiracy and after being offered an inducement in the form of indemnity, BC provided a statement to police setting out his assertions as to the role of the applicant in the pseudoephedrine transaction of 19 May 2000. As is conceded by counsel for the applicant before us, it is clear that the full circumstances under which BC gave evidence were the subject of both the evidence and the submissions of counsel. Furthermore, in our view, a reading of the transcript of addresses makes it clear that those submissions were put repeatedly and forcefully.

172 In his charge to the jury, the trial judge summarised the evidence given by BC in considerable detail. In particular, he detailed carefully and fully the answers of BC given in cross-examination. Likewise, carefully and in considerable detail, he repeated the arguments advanced by counsel for the applicant in relation to the evidence given by BC. No exception was taken by counsel for the applicant to his Honour's summary of the evidence and the addresses.

173 However counsel for the applicant submits that the fact that the issues were capable of being addressed coherently by counsel does not remove the need for a warning to be given. It is argued that the interview of BC by Acting Commander Moloney was coercive, unusual and egregious, and that the pressures placed upon BC in the course of it were outside the experience of jurors. Furthermore, it is argued on behalf of the applicant that by reason of BC having agreed to wear a recording device when he spoke to the applicant on 15 March 2003, he placed himself in a position analogous to that of a prison informer. Likewise it is argued that by reason of the 'threats' made by Acting Commander Moloney in the course of the interview of 14 January 2003, BC was in a position which was analogous to that of an accomplice. It is submitted that other factors, such as the length and complexity of the trial, and the motive of BC to 'adopt' Moloney's account of what had occurred 'as his own' made a warning more clearly necessary. Finally, it is contended that in the circumstances whereby the judge gave a Faure warning in relation to three other witnesses in the trial, Paton, Rosenes and 4/199, by contrast the absence of a warning in respect of the evidence given by BC had the effect of approbation of his evidence.

174 As is submitted on behalf of the applicant, it may be that the circumstances 'of pressure' in which BC was interviewed by Acting Commander Moloney were 'outside the experience' of most jurors, but that does not mean that the jury were incapable of understanding that those circumstances were the basis of the attack by counsel for the applicant upon the credit of BC at trial nor does it mean that the jury were incapable of using their life experience, in consideration of the effect of such circumstances upon BC and the relevance of that, to his credibility. The fact that circumstances the subject of evidence may be 'outside the experience' of most jurors does not call for a warning in circumstances where those circumstances are clearly before the jury and where counsel has been able to articulate in detail the basis of the attack upon such evidence. There was no suggestion that BC was an accomplice, nor was he a prison informer. Furthermore, the fact that in a criminal trial a warning might be given in respect of one or more witnesses does not elevate the value of the evidence given by other witnesses in the trial. The purpose of a warning, when given, is to ensure that jurors understand that by reason of particular circumstances (such as being an accomplice or a prison informer) the evidence of a particular witness may be unreliable. Furthermore, the warning is given to ensure that juries understand that if by reason of those circumstances they find such a witness to be unreliable, they should look for supporting evidence and that they should scrutinise the evidence with special care.

175 The trial judge so warned the jury in respect of the evidence given by three witnesses in the trial. On each occasion in doing so, he spelt out the reasons for giving such a warning. In relation to Paton, he gave a detailed explanation of the dangers that may arise in respect of evidence given by an accomplice. Likewise, in relation to Rosenes, the trial judge referred in some detail to the criminal activities in which Rosenes had been involved and for which he had been sentenced. He referred to the undertaking given by Rosenes at the time of his sentencing to give evidence against the applicant. In relation to the witness 4/199, a man with a long criminal history, and who had been a police informer over a considerable period of time, his Honour gave a similar warning. In each case his Honour explained the basis of his warning to the jury. The circumstances which called for the giving of the warning in each of those cases were entirely different from the circumstances relevant to BC. He had no criminal convictions and there was no suggestion, other than that at all times material he believed he was engaged in assisting legitimate police operations. There is no basis to say that the giving of a warning in the other cases elevated the value of his evidence.

176 The issue in relation to the evidence of BC was a simple one. Was his version of events relating to the pseudoephedrine transaction of 19 May 2000 credible, or was there a possibility that he had fabricated a story implicating the applicant, because of his concern that if he did not do so he also would be charged with being criminally involved in the transaction, with all the consequences that would flow from that? That issue was clearly before the jury. The jury had before them as an exhibit a videotape of the interview of BC by Moloney which, in essence, raised the matters upon which the applicant's counsel relies in support of his argument that a warning was required. The jury had seen BC cross-examined over a considerable period of time. There could be no ambiguity about the basis upon which his credit was attacked. In our view the circumstances of this case are such that a warning of the Faure type was not required to avoid a perceptible risk of miscarriage of justice. There was nothing exceptional in the circumstances calling for such a warning. There is no basis to say that the concatenation of circumstances which applied to the evidence of BC were not within the capacity of a jury to evaluate, using their own experience of life and having had the benefit of the addresses of counsel.

The learned trial judge erred in declining to give a specific direction, in the nature of a Faure warning, to the jury, regarding the witness DE.

177 It is conceded before us by counsel for the applicant that the need for a judicial warning in relation to DE was 'less compelling' than it was for BC, he being a witness of 'lesser significance' and a 'more remote' witness and because he was 'not confronted with the same threats' as was BC. Nevertheless, it is argued that an identifiable group of factors called for a warning to be given. Those factors, it is submitted, are that that DE was interviewed as a suspect, and like BC he had made a statement pursuant to an inducement and had been provided with an indemnity against prosecution. It is submitted, that as in the case of BC, those factors were such that the ability of the jury to assess their effect for themselves was 'rendered unusually difficult'.

178 As in the case of BC, DE was cross-examined in considerable detail about the circumstances under which he came to make a statement to police. Extensive argument was put before the jury by counsel for the applicant as to why the circumstances made the evidence of DE unreliable, and as to why his evidence should not be accepted by the jury. In his charge the trial judge referred to the evidence of DE in detail and counsel's arguments with respect to it. He drew attention, in particular, to answers given by him in cross-examination. The essence of the attack upon DE was that when interviewed by ESD he told a false story 'to keep them happy' and to avoid getting into trouble with them himself. It was submitted that he had told the ESD what they 'wanted to hear.' This issue was simply an issue of credit. The jury were perfectly capable of evaluating the credit of DE and the relevance of the fact that he had been indemnified against prosecution and the circumstances in which he had made a statement to ESD. There was nothing exceptional about the circumstances, and there was nothing which would not have been apparent to the jury, to compel the judge to give them a Faure type warning.

179 The prosecution sought, as part of the general body of circumstantial evidence, to establish that the applicant was at relevant times in possession of unexplained cash and adduced evidence from the witness Curtin on this matter. The jury were invited to conclude that the applicant had derived this money from involvement in some form of illegal behaviour and specifically that encompassed by the counts before them. The trial judge instructed them:

I turn now to the question of what might constitute corroboration in this case. There are a number of pieces of evidence upon which the Crown relies as being capable of corroborating the evidence of Paton. I will identify them for you. The order in which I deal with them has no particular significance.

First, there is the evidence of the seven unsourced cash payments totalling $13,099 identified by the forensic accountant, Gerard Curtin. I say seven payments because although Mr Curtin listed eight transactions in his table, which is Exhibit 110, he agreed in cross-examination that the two purchases from Carpet Call, which he listed separately, were in effect the one transaction. In order for you to be satisfied that these seven or eight cash payments were indeed made with unsourced money, you have to accept Mr Curtin's analysis of each transaction. You may, for example, consider that his inclusion of the $500 cash payment to the Bank of Melbourne on 25 February 2000 was not acceptable, given that the purchaser of [the applicant's] motor vehicle had paid $500 cash deposit some seven or 14 days earlier with the balance of $13,500 by cheque on 25 February, and the cheque and $500 cash had been banked together on that day. You will recall that [the prosecutor] conceded that the $500 cash may well have been the cash part of the payment from ]the applicant's] car. However, it is a matter for you, you are the judges of the facts.

You will recall the criticisms made by the defence of the Crown's reliance on these seven transactions. [Counsel] emphasized the limitations of Mr Curtin's evidence, in particular his statement that all he could say about the transactions was that he could not find the source of the cash from the records available to him.

Assuming that you accept Mr Curtin's analysis of these transactions, the cash deposit of $500 at the Bank of Melbourne on 25 February 2000, the cash deposit of $1,500 at the Bank of Melbourne on 30 March 2000, and the purchase with cash from Ord Minet of $3,605 worth of Solution Six shares on 18 May 2000, are each capable of corroborating Paton's evidence, in the way I have defined that concept, in relation to any of the first four counts on the presentment in which Paton was involved.

Those three transactions are not capable of corroborating count 5 because they occurred before [the applicant] allegedly received the cash payment from BC for the two kilos of pseudoephedrine.

The next four cash transactions, the purchase with cash from Ord Minet of $4,607 worth of Voice Net shares on 7 June 2000, the payment in cash of $1,300 to Carpet Call on 8 July 2000, the payment in cash of $597 to AAMI on 21 July 2000 and the payment in cash of $990 to Crystal Shower Screens on 19 September 2000 are each capable of corroborating Paton's evidence, in the way I have defined that concept, in relation to any of the first five counts on the presentment in which Paton was involved.

Of course, as the defence pointed out, the prosecution cannot show that the proceeds of any of the sales of pseudoephedrine which were allegedly paid to [the applicant] were specifically used in any of these seven cash transactions. At most, the prosecution can only say that the unsourced cash transactions are consistent with the accused's involvement in the commission of these crimes.

Further, it was submitted by the defence that given the transparency of the accused's accounts, the lack of any extravagant lifestyle and the modest amounts involved, you should not be satisfied that any relationship existed between the large amount of money allegedly received by the accused from the alleged offences, about $99,500, I believe, and the cash transactions referred to by Mr Curtin.

180 The jury clearly did not regard this evidence as significant in relation to counts 2 to 4. This was hardly surprising in the circumstances. The highest at which the evidence of Curtin could be put was that he was unable to ascertain the source of what were, after all, relatively small amounts of money and it is apparent that only through speculation could they be linked to the conduct alleged by the prosecution.

181 With regard to count 5, no adequate foundation existed for the inference that the unaccounted money in his possession after 19 April had not been received by him either much earlier or in a totally unrelated way. There is considerable force in the argument advanced on his behalf that this evidence could be seen to possess no probative value as part of the circumstantial case on count 5 or as corroborative of Paton and, accordingly, should not have been left for consideration by the jury. However, as we have pointed out, the jury were clearly not influenced by the betterment evidence applicable to counts 2 to 4 when considering those counts and there is no reason to suspect that they may have placed any greater weight on the evidence applicable to count 5. It was clearly of no better quality. The situation constitutes an example of an occurrence that is well recognised as happening in criminal trials from time to time; an inadmissible item of evidence possessing little or no probative value is placed before the jury. They, in turn, properly instructed as to the onus and standard of proof in a criminal trial and the drawing of inferences in such proceedings, assess the situation. Often, as here, through their verdicts they demonstrate that they did not attribute weight to it and arrived at their decision on the basis of the other evidence before them.

182 We are far from persuaded that the admission of the Curtin evidence whether considered above or in conjunction with any of the other evidence before the jury even as a remote possibility may have led to a miscarriage of justice.

183 At relevant times, s 4 of the Drugs, Poisons and Controlled Substances Act 1981 provided that :

(i) specified in column 1 of Part 1 of Schedule Eleven or added thereto by regulations made under section 12 M ...

(d) any form of a drug specified in column 1 of Part 1 ... of Schedule Eleven, whether natural or synthetic, and the salts, derivatives and isomers of that drug and any salt of those derivatives and isomers ...

184 Section 70 of the Act defined 'commercial quantity' as follows:

"Commercial quantity", in relation to a drug of dependence-

(a) the name of which is specified in column 1 of Part 1 of Schedule Eleven, means the quantity that is specified in column 2 of that part of that Schedule opposite to the name of that drug of dependence ...

185 Included in the drugs specified in column 1 of Part 1 of Schedule Eleven was the following:

186 At trial the Crown led evidence in proof of count 5 that the substance trafficked was dispensed by Sigma and weighed two kilograms. As has been noted, the Crown also adduced evidence from the Sigma chemist, Ms Usha Gulapalli, that she had tested the substance in accordance with the test procedures mandated by the British Pharmacopeia and that as tested the substance was found to be 99.7 per cent pure pseudoephedrine hydrochloride. She explained that, according to the British Pharmacopeia, the limits for pseudoephedrine hydrochloride[54] range from 99 per cent to 101 per cent. It followed, she said, that the two kilograms of substance was pseudoephedrine hydrochloride in 'its highest pure form'.

187 The defence contended that there was no case to answer. It submitted that, given that the substance trafficked was only 99.7 per cent pure pseudoephedrine hydrochloride, it necessarily followed that 0.3 per cent of the substance trafficked was not pseudoephedrine hydrochloride, and hence that the 'Quantity of Pure Drug' within the meaning of Part 1 of Schedule Eleven was less than two kilograms.[55]

188 The judge rejected the submission. He ruled that the expression 'Quantity of Pure Drug' in Column 2 of Part 1 of Schedule Eleven means pure according to the standards of the British Pharmacopeia and, therefore, that it was established by the evidence that the quantity of 'Pure pseudoephedrine hydrochloride' trafficked was two kilograms. He directed the jury accordingly.

189 Under ground 6, the appellant contends that the judge was wrong to do so. Counsel for the appellant submits that the word 'pure' is an ordinary English word of which the plain and ordinary meaning is something that is not mixed with anything else; not adulterated, and counsel argues that it is in that sense that 'pure' is used in the expression 'quantity of pure drug'. It follows, in counsel's submission, that a substance which contains both pseudoephedrine hydrochloride and some other substance is not pure pseudoephedrine hydrochloride within the meaning of the statute; and that is so, as counsel would have it, no matter how slight the concentration of the other substance might be. In short, in counsel's submission, on the basis of the evidence given by Ms Gulapalli, the substance the subject of count 5 was shown to contain a mixture of pseudoephedrine hydrochloride and at least one gram of various 'impurities', and so the quantity of the 'pure pseudoephedrine hydrochloride' was necessarily less than two kilograms.

190 We do not accept the argument. In our view, it seeks to interpret the word 'pure' as if it stood alone and unaffected by the words which are around it. But it does not stand alone. It is part of the composite phrase 'pure drug', or more precisely (as the Schedule operates in this case) of the composite phrase 'pure pseudo ephedrine hydrochloride', and the task is to interpret that composite phrase. The question is not whether the substance was 'pure', but rather whether the substance fell within meaning of the composite expression 'pure pseudoephedrine hydrochloride'.[56] And although 'pure' is an ordinary word with a well defined ordinary meaning, the words 'pseudo ephedrine hydrochloride' are technical words with a well defined technical meaning.[57] It is necessary to have regard to their technical meaning in order to interpret the composite phrase.[58]

191 The term 'ephedrine' is defined in the Oxford English Dictionary as 'an alkaloid - (C10H15NO) - that occurs in certain species of Ephedra[59] in four optically active forms and is made synthetically; 2-methylamino-1-phenylpropanol; spec., one of the lævorotatory isomers, used in the form of its salts as a sympathomimetic drug'. The term 'pseudoephedrine' is not separately defined in the Oxford but is defined in several technical dictionaries as a naturally occurring crystalline alkaloid isomer[60] (C10H15NO) of ephedrine (benzenemethanol, alpha-(1-(methylamino)ethyl)-, (R-(R*,S*)) which is administered chiefly in the form of its hydrochloride or sulphate salts C10H15NO·HCl or (C10H15NO)2·H2SO4 especially to relieve nasal congestion.[61] Consumers in Australia were for some time in the habit of referring to the drug as Sudafed, a trademark of a common brand of the product.[62] But 'Pseudoephedrine hydrochloride' is the International Nonpropriety name of the drug and in our view that is what Parliament intended.

192 Beyond laboratory conditions, all chemical substances are to some extent contaminated, even if only by dust or oxidation or hydration or bacteria. Given, therefore, the chemical composition of pseudoephedrine hydrochloride, it strikes us as inherently improbable that the statutory conception of 'pure pseudoephedrine hydrochloride' requires the exclusion of all contaminants regardless of their concentration. It is notorious that what is daily sold as pure food or drink or petroleum contains some such contamination and that, provided such products meet the standards of purity which are set for them by the market, or by regulatory authorities or perhaps, in some cases, simply as a matter of common sense, they are conceived of as being 'pure'. In our view, drugs and other therapeutic goods of the kind here in question are not any different. The fact that the amounts listed in the 'Quantity of pure drug' column in Schedule Eleven are expressed to only one decimal place of accuracy strengthens us in that view.

193 Of course, what is sufficient to pass as pure for one kind of product may not suffice for another. The permissible concentration of contaminants depends on the upon the nature of the product and the nature of the contamination. Furthermore, such is the nature of many products, particularly products like drugs of the kind here in question, that the determination of what is to pass as 'pure' must be left to scientists and the application of esoteric tests.[63] It is beyond the ambit of ordinary knowledge and experience. Hence, in this case, the significance of the British Pharmacopeia.

194 Section 56 of the Therapeutic Goods Act 1989 (Cth) provides that all courts are to take judicial notice of the British Pharmacopeia. It is published pursuant to s 99(6) of the Medicines Act 1968 (UK) and sets legally enforceable standards of quality for medicinal products and their constituents in the United Kingdom. In Australia, it is the principal or default standard applying under s 10 of the Therapeutic Goods Act to medicines and other therapeutic goods that are not medical devices, and it applies to pseudoephedrine hydrochloride. In effect, as Ms Gulapalli said in her evidence:

[The] British Pharmacopeia is, it is like a Bible to the pharmaceutical industry [in Australia], it is testing according to different standards, like the Japanese have their own pharmacopeia and US have their own pharmacopeia, in Australia we follow the British Pharmacopeia.

195 The standards of purity demanded by the British Pharmacopeia are stringent. It defines 'pseudoephedrine hydrochloride' in terms of:

a substance containing not less than 99.0 per cent and not more than the equivalent of 101.0 per cent of (1S, 2S) - 2 - (methylamino) - 1- phenylpropan -01 -ol hydrochloride, calculated with refer to the dried substance.

In our view, pseudoephedrine hydrochloride which satisfies that description is capable of coming within meaning of the composite expression 'pure pseudo ephedrine hydrochloride' in Schedule Eleven to the Act.

196 Counsel for the appellant contended to the contrary. He pointed to what he said was the clear distinction drawn in the definition of 'drug of dependence' in s 4(1) between 'drug of dependence' and 'other substance', and he submitted that where it was intended to include 'other substance' in the weight of substance for the purpose of an offence, the Act made clear and explicit provision as to how that is to be done.

197 We accept that contention up to a point. The Drugs, Poisons and Controlled Substances Act 1981 does draw a clear distinction between 'drug of dependence' and 'other substance'. Paragraph (e) of the of the definition of 'drug of dependence' includes any drug 'contained in or mixed with another substance', and 'substance' is defined in s 4(1) as including 'material, preparation, extract and admixture'. We also accept that, where it is intended to include 'other substances' in the weight of a drug of dependence with respect to which an offender may be charged, the Act expressly provides for that to be done. In s 70(1) the definitions of 'commercial quantity', 'small quantity' and 'traffickable quantity' of the drugs listed in Part 3 of Schedule Eleven specify precisely the circumstances in which the weight of substance is taken to include both the drug in question and any other substance in which it is contained or mixed. As counsel submitted, the effect of the definitions is to draw a distinction in relation to the drugs listed in Part 3 of Schedule Eleven between the 'commercial quantity' of a drug 'contained in or mixed with another substance' (the quantity specified in Column 2A of the Schedule) and the 'commercial quantity' of a drug 'in any other case' (the quantity specified in Column 2).[64]

198 That said, however, none of it appears to us to imply that Parliament's conception of purity was restricted to substances from which is excluded all contaminants no matter how slight the concentration of them might be.

199 If Sigma contracted to sell to a pharmacist two kilograms of 'pure pseudoephedrine hydrochloride' and pursuant to the contract delivered a bag of 99.7 per cent pure pseudoephedrine hydrochloride, there can surely be no doubt that Sigma would be taken to have satisfied its contractual obligation to deliver two kilograms of pure pseudoephedrine hydrochloride. Equally, in our view, if a drug trafficker sold and delivered the same bag to another dealer or customer, there can be no doubt that the drug trafficker would be guilty of trafficking in two kilograms of pure pseudoephedrine hydrochloride. If on the other hand, in pretended performance of its contract, Sigma delivered two kilograms of substance found upon analysis to contain one kilogram of 99.7 per cent pure pseudoephedrine hydrochloride and one kilogram of icing sugar, Sigma would doubtless be in breach of its contract by reason of its failure to deliver one of the two kilograms for which it contracted; as well, perhaps, by reason of mixing the one which it did deliver with the extraneous substance. Correspondingly, if the drug trafficker sold and delivered such a mixture to another dealer or customer, he could not be convicted of trafficking in more than one kilogram of pure pseudoephedrine hydrochloride or two kilograms of 'mixture of substance and drug of dependence'.

200 In short, in our view, the notion of purity for the purposes of the Act accords with what would be regarded as 'pure' among those who deal in the drugs in question, and the distinction which the Act draws between 'pure drug' on the one hand and 'mixture of substance and drug of dependence' on the other hand is consistent with and capable of working satisfactorily on that basis.

201 Counsel for the applicant argued further that, whatever may be the position in relation to Part 3 of Schedule Eleven, Part 1 of the Schedule put the matter beyond doubt by its use of the adjective 'pure' in the expression 'quantity of pure drug' as opposed to the simple description 'quantity' which is used in the other parts of the Schedule.

202 We see no substance in that idea. As originally enacted, there was only one part to Schedule Eleven and it employed the simple description 'Quantity'.[65] The first move towards something like the present structure was made by the Drugs Poisons and Controlled Substances (Amendment) 1983.[66] It added Parts 2 and 3 to the Schedule and also the following definition of 'Commercial quantity':

"Commercial quantity" in relation to a drug of dependence the name of which is specified in Column 1 of any Part of Schedule Eleven means the quantity that is specified in Column 2 of that Part of that Schedule opposite to the name of that drug of dependence.[67]

As was explained in the second reading speech,[68] Part I listed those drugs which it was said were identifiable by forensic scientists, Part II listed plants which were capable of being identified by botanists, and Part III listed substances containing any concentration of tetrahydrocannabinol ('THC'). Hence, it made obvious sense to refer in Part 1 to the 'Quantity of Pure Drug', in Part II, simply to 'Quantity' and in Part III, to 'Quantity of Substance'. But, significantly, it was not suggested that the use of the expression 'Quantity of Pure Drug' in Part 1 was intended to require any higher standard of purity than had previously been required by the expression 'Quantity'.

203 The next significant change came with the Sentencing and Other Act (Amendment) Act 1997[69] of which s 30 amended the definitions of 'commercial quantity' and 'traffickable quantity' substantially to their present form and s 45 of amended Parts 1 and 2 and substituted Part 3 of Schedule Eleven, so as in effect to give the overall regime substantially its present structure. In the result, Part 3 of the Schedule ceased to be concerned with plants containing THC, and the substances amphetamine, cocaine, diacetylmorphine (heroin), lysergic acid diethylamide, methlyamphetamine, methylenedioxyamphetamine, 3, 4 methylenedioxy amphetamine, and 3, 4-methylenedioxy-N-methylamphetamine (which were said in the explanatory memorandum to be the six most prevalent illicit drugs) were removed from Part 1 of the Schedule and placed in Part 3. Then as now, Columns 2, 3 and 4 of Part 3 were headed simply 'Quantity', and there was no suggestion that that was intended to mean anything different to 'Quantity of Pure Drug' in Part 1. To the contrary, it was said in the Explanatory Memorandum that :

Schedule 11 which specifies a pure quantity (that is, the amount of drug contained in the substance seized) in Column 2, and a dilute quantity (that is, the total weight of the substance seized) in Column 2A of drugs ...[70]

204 As it appears to us from that history of the legislation there is no difference at all in meaning between the expressions 'Quantity of Pure Drug' and 'Quantity' in Schedule Eleven. To the contrary, the fact that the expressions are used interchangeably tends even further to the conclusion that the composite phrase 'Quantity of Pure Drug' does not require the exclusion of all contamination no matter how slight the concentration of it might be.

205 Counsel for the applicant argued that so to construe the term 'Quantity of Pure Drug' would be productive of great inconvenience and for that reason was unlikely to have been intended. He contended that it would subject the elements of the offence of trafficking to changes in industry standards and result in evidentiary challenges and disputes which a jury could not easily resolve; in turn raising the prospect that different juries might return opposite verdicts on evidence of a similar type.

206 We do not think that to be a problem. Prima facie, the words of legislation need to be interpreted in accordance with their current meaning from time to time.[71] If so, in this case, the application of s 77 might vary over time according to changing conceptions of purity.[72] But there is nothing especially remarkable about offences of which the meaning may change over time.[73] On the other hand, it may be that the Act discloses an intention to limit the notion of purity to the standard current at the time of enactment,[74] in which case the question does not arise. For the time being, however, the inquiry is academic. Allowing that it may one day prove necessary to determine whether 'Quantity of Pure Drug' extends to 'new exemplifications which have the characteristics of accepted denotations',[75] at present there is no suggestion of any change in the meaning of 'pure' since the legislation began.

207 Finally, counsel for the applicant argued that on any analysis the expression 'Quantity of Pure Drug' is ambiguous and that the ambiguity should be resolved in favour of the appellant. We do not accept that argument either. As was stated in Beckwith v The Queen,[76] by and large the same rules of statutory construction apply to penal statutes as to other legislation. It is only if after the application of ordinary principles of construction there remains any ambiguity that the doubt is to be resolved in favour of the subject. Here, in our view, the application of ordinary principles of construction leads to the conclusion that there is no ambiguity.

209 Under cover of ground 6B (as amended), counsel for the applicant argued in the alternative that even if a quantity of 99.7 per cent pure pseudoephedrine hydrochloride were capable of falling within the statutory conception of 'quantity of pure drug', it was a question for the jury whether it did in fact and that the judge had erred by directing the jury that they were to proceed on the basis that the substance the subject of count 5 satisfied the description of pure pseudoephedrine hydrochloride.

210 Technically, that it is correct. The construction of the expression 'Quantity of Pure Drug' and the question of whether the substance was capable of falling within the expression were questions of law,[77] and thus one for the judge,[78] but whether the substance the subject of count 5 fell within the expression as construed by the judge was a question of fact for the jury.[79] The judge should have left that question to them after instructing them as to the correct construction of the expression.

211 In our view, however, the judge's failure to adopt that course could not have made a difference to the verdict.[80] For given the uncontested evidence of Ms Gulapalli, any reasonable jury properly instructed on the meaning of the legislation would have been bound to conclude that the substance in question was a quantity of pure pseudoephedrine hydrochloride and therefore a 'Quantity of Pure Drug' within the meaning of the statute. To have held otherwise, would have been perverse.

213 It follows from the reasoning set out above that we also regard the complaints made under grounds 7 and 8 as lacking substance.

214 The application for leave to appeal against conviction is, accordingly, dismissed.

The application for leave to appeal against sentence

215 This application is based on the grounds that -

1. The sentence imposed on count 5 is manifestly excessive.

1. His Honour erred in failing to give sufficient weight to the principle of parity when sentencing the applicant.

216 In the course of the hearing before us, counsel drew attention to the circumstances that the sentencing judge had been unable to have regard to the additional penalty that may be incurred by the applicant in the event that a superannuation order was subsequently made under s 83E of the Sentencing (Superannuation Orders) Act 2004.

217 On 21 December 2006, the sentencing judge made an order against the applicant in the sum of $68,000 representing his employer's contribution to his superannuation entitlement for the period 19 May 2000 to 18 March 2003.

218 In consequence, the applicant has sought leave to add the ground -

1. The sentencing discretion is re-opened by reason of the superannuation order made against the applicant.

219 It was asserted in support of the claim that the sentence was manifestly excessive, that the length of the term of imprisonment imposed indicates that inadequate consideration must have been given to -

- the modest planning and sophistication required;

- the personal circumstances of the appellant before, during and after the offence; and

- the comparatively contained nature of the proved breach of trust.

However it is to be noted that each of them was specifically addressed by his Honour in his sentencing remarks and taken into account, together with a number of other matters that militated in favour of mitigation of penalty. They indicated, inter alia, his personal background, history of commitment to the successful raising of his children following their mother's death from cancer, his highly successful career in the police force and reputation for dedication, intelligence and integrity, the minor financial benefit he could have anticipated from the activity and mixed motivation for engaging in it, his state of health and the increased difficulties that he would be likely to experience whilst in custody, both by reason of his state of health and his status as a protected person. He formed the view that specific deterrence did not assume importance as a sentencing consideration in this case and expressed confidence in the applicant's prospects for rehabilitation. In short, it is apparent that the judge was careful to take into account all relevant principles and considerations that could operate in the applicant's favour.

220 However as his Honour also pointed out, the applicant -

... exploited a structure put in place to facilitate the capture of drug traffickers, and effectively orchestrated the delivery of two kilograms of pure pseudoephedrine to one of the principal drug manufacturers and dealers in Victoria.

The single most aggravating feature of your offending is that you committed the offence in your capacity as a member of Victoria Police, and while working in the very squad whose specific function it was to prevent and detect the trafficking of illicit drugs. You committed the very crime which you were entrusted to detect and eliminate. In doing so, you betrayed your oath as a member of the police force, and you breached the trust which the community placed in you. The trust placed in you, as a Detective Senior Sergeant, was higher than that placed in other members of lower rank, and therefore the breach of that trust is proportionately more serious. In your position as the effective head of unit 2 you were able to use your knowledge about drug manufactures, the relationship which the police force had with the pharmaceutical companies and your ability to operate with less supervision than your subordinates to pervert your own role as a police officer for personal gain.

Although Inspector Reid may have been the titular head of unit 2, I have described you as its effective head given the following description of your position in your August 2001 statement:

"Since the commencement of 1999 I have been in charge of operations in the Cladestine Laboratory Unit. I approve all operational directions and investigations undertaken. I am aware of all investigations and controlled chemical deliveries conducted by the Cladestine Laboratory Unit during this time"

Your corrupt conduct has inevitably had the effect of undermining public confidence in the Victorian Police Force. It was a betrayal of the thousands of other serving police officers who daily work with dedication and integrity under the same kind of pressures and constraints as you did. Your conduct potentially undermined the enforcement of the law and the administration of justice in this State.

221 His Honour placed appropriate emphasis upon the importance of general deterrence in cases of this kind. The sentence at which he arrived was, in our view, available in the proper exercise of the discretion reposed in him.

222 Although the criminality of Paton was, as counsel for the applicant contended, of a 'categorically different scale' to that of the applicant, there were significant differences in their situations. His Honour recognised the distinctions in his sentencing remarks, noting that -

... the two counts to which Paton pleaded guilty involved 2.5 times the commercial quantity in respect of the pseudoephedrine transactions (in fact I think it was 2.75 times) and 13 (I think it was 12.75) times the commercial quantity in respect of the Sudafed tablets transactions. Both counts were over a lengthy time frame. [Defence counsel] further submitted that Paton had been motivated purely by greed. For those serious offences Paton received a sentence of six years' imprisonment on each count to be served concurrently with a minimum non-parole period of three years.

Whilst you and Paton were co-offenders in the trafficking offence committed on 19 May 2000, your circumstances are considerably different. It is true that you have been found guilty of only one offence, whereas Paton was guilty of numerous offences. On the other hand, you held a more senior rank than Paton and in respect of your offence the evidence on which the jury have convicted you is that you directed Paton to collect the two kilograms of pseudoephedrine. Moreover, Paton pleaded guilty and agreed to give evidence against other police officers, including yourself, which no doubt earned him a significant discount.

223 He then stated that notwithstanding the difficulties in comparing their situations that he had taken the sentence imposed on Paton into account.

224 We are far from persuaded that the applicant could have any justifiable sense of grievance arising as a result of the different sentences imposed upon them for this offence.

225 We consider that leave should be granted to add this ground which has been supported by written submissions.[81] However we have also concluded that, given the relatively small amount of the order and the personal circumstances of the applicant, no mitigation of the sentence imposed upon him was required. In other words, as we are satisfied that no different sentence should have been imposed, this ground fails.

226 The application for leave to appeal against sentence also fails.

[1] The jury returned verdicts of not guilty in respect of counts 2, 3, 4 and 6 and being unable to reach a verdict in respect of count 1 were subsequently discharged without verdict on that count.

[2] Ground 1 which asserted that the verdict on count 5 was unsafe or unsatisfactory because the jury ought not to have been satisfied of the applicant's guilt, was not pursued and need not be addressed.

[3] An application to amend ground 6 of the Full Statement of Grounds was made and granted on 11 February 2008.

[4] The summary of evidence set out in this judgment has been prepared from the transcript of the trial and the other materials provided to the Court. It hardly needs to be stated that it does not purport to represent the totality of the evidence adduced in relation to count 5 in the proceeding which was lengthy and does not refer to a substantial amount of evidence or witnesses called in relation to the other counts on which he was acquitted or count 1 where no verdict was reached.

[5] He had pleaded guilty to a number of counts of trafficking drugs for which he was sentenced on 24 October 2003.

[6] The convention has been adopted in this judgment of italicising the name of a witness where it first appears and where, unless it is specifically indicated or clear from the context, the evidence summarised was adduced from the witness.

[7] Paton had, prior to the applicant's trial, pleaded guilty to trafficking pseudoephedrine hydrochloride between 28 October 1999 and 19 May 2000 and trafficking in a commercial quantity of pseudoephedrine between 9 May and 6 December 2000. The latter count, covered a series of transactions including the one encompassed by count 5 on the Presentment in this matter. At his plea hearing, Paton gave an undertaking to give evidence in any future criminal proceedings.

[8] The exchange of emails was tendered as Exhibit 60.

[10] Exhibit 62 depicted a series of colour coded chronological charts of the telephone calls made from mobile telephones owned or held by the persons of interest in this matter. These charts were compiled from relevant call charge records for each mobile telephone. The telephone call charge records also recorded the location of the nearest mobile telephone base station at the time of each call. Therefore it is possible to establish, within certain limits, which region a mobile telephone is located in at the time of a particular call being made.

[12] An internal material requisition order filled out by another employee, identified this packed quantity as 'Item No. 075862' taken from 'Material Batch No. R14189.' This order form was checked and signed by David Guy (Exhibit 53).

[16] BC gave evidence that he telephoned the applicant to let him know that he had the money and to arrange a meeting and time. BC said that he had earlier received the money from DE.

[17] A copy of that entry was tendered as Exhibit 71.

[18] That Log Book entry was tendered as Exhibit 95.

[22] The three bags of white powder were subsequently re-analysed by Aaron Heagney, a senior chemist of the Australian Forensic Science Laboratory in Sydney, who returned percentages of 29.9 and 35.7 per cent respectively, for each of the two smaller bags while the larger bag was 3.9 per cent Ketamine. He found that the large bag was 25.5 per cent pseudoephedrine with the balance being dextrose sugar. With respect to the Ketamine analysis, he stated that he did not have a methodology for the quantification of that material that had been validated as accurate. He expressed the opinion that he would put more weight on Sears' results.

[23] That unit was concerned with the investigation of Asian Heroin Trafficking.

[24] His diary records that it was scheduled for 8.30am.

[25] That facsimile transmission document has been tendered as Exhibit 99.

[26] A printout of the letter of resignation typed up by Paton was tendered as Exhibit 93.

[27] This briefing paper was tendered as Exhibit 100.

[28] The copy of that report was tendered as Exhibit 102.

[29] A copy of that statement has been tendered as Exhibit 101.

[30] The recordings and transcripts of most of those calls at 9.38am, 9.44am and 11.32am were respectively tendered as Exhibits 84, 85 and 86.

[31] The transcript and recording were tendered as Exhibit 87.

[32] That document was tendered as Exhibit 88.

[33] The recording and transcript of that call were tendered as Exhibit 89.

[34] Recordings of those calls from the transcripts were tendered as Exhibits 90, 91, 92 and 93.

[35] The tape-recording made of the meeting and the transcript thereof was tendered as Exhibit 94.

[36] It was accepted that the vehicle was secured and normally parked in the Nugent residence when not in use. Exhibit 38 - Admission of Fact.

[38] This spreadsheet was tendered as Exhibit 108.

[39] This summary was tendered as Exhibit 109.

[42] Presumably the conduct of adequate surveillance would have been much more difficult.

[43] As his Honour's instructions concerning the principles to be applied were unchallenged, and in accordance with recognised principles, there is no need to embark upon an analysis of the authorities or to set out a list of the cases in which the proper approach was discussed.

[45] See Doney v R [1990] HCA 51; (1990) 171 CLR 207; R v Taylor [2004] VSCA 98; (2004) 8 VR 213; R v Pisano [1997] 1 VR 342; R v Kendrick [1997] 2 VR 699; R v Kerim [1983] 1 Qd R 426; and R v Baskerville [1916] 2 KB 658.

[46] [2004] VSCA 98; (2004) 8 VR 213.

[48] R v Faure [1997] 1 VR 593.

[49] [1997] 1 VR 593, 605.

[50] [1986] HCA 49; (1986) 161 CLR 315.

[52] [1997] 1 VR 593, 606.

[53] [2004] VSCA 73; (2004) 8 VR 388, 395.

[54] Pseudoephedrine hydrochloride is a salt of pseudoephedrine, see [195] below.

[55] Two kilograms being the minimum amount of a 'commercial quantity' shown in Column 2.

[56] Exxon Corporation v Exxon Insurance Consultants International Ltd [1982] Ch 119, 144; Collector of Customs v Agfa Gavaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 400; R v Harris & Ors (No. 4) [1990] VicRp 29; [1990] VR 324, 325-6 (Ormiston, J).

[57] The term 'pseudo ephedrine hydrochloride' does not appear in the Oxford English Dictionary or the Australian Oxford Dictionary or the Macquarie Dictionary. But it does appear in technical dictionaries. University of Newcastle upon Tyne, On- Line Medical Dictionary defines the term as: 'D - Pseudo ephedrine hydrochloride; the naturally occurring isomer of ephedrine; a sympathomimetic anime with actions and uses similar to those of ephedrine'.

[58] Collector of Customs v Agfa Gavaert Ltd (1996) ibid 401.

[59] 'A member of the genus of low evergreen trailing shrubs so called, belonging to the family Gnetaceæ and sometimes called shrubby horsetails.'

[60] Encyclopaedia Britannica - the Online Encyclopaedia defines an isomer as: 'One of two or more substances with identical molecular formulas but different configurations, differing only in the arrangement of their component atoms'.

[61] Merriam-Webster's Medical Dictionary; University of Newcastle upon Tyne, On-Line Medical Dictionary.

[62] It is said in Wikipaedia that consumers in North America, the United Kingdom, and Australia often refer to it as Sudafed, the trademark for a common brand of pseudoephedrine hydrochloride.

[63] See and compare R v Harris & Ors (No. 4) [1990] VicRp 29; [1990] VR 324, 325-6 (Ormiston J).

[64] R v Zhu [2000] VSCA 191; (2000) 2 VR 421, 422 [6]-[9] (Callaway JA).

[65] See Drugs, Poisons and Controlled Substances Act 1981 (Act no 9719), s 77(b) and Schedule Eleven.

[68] Assembly 16 June 1983, Hansard, Session 1982-3, Vol. 37 (Assembly) at 5300.

[70] Parliament of Victoria, Bills Introduced, Vol 13 Sen-Sup Session 1997-1998 at p 14.

[71] R v Gee (2003) 212 CLR 230, 240 [6] (Gleeson CJ); Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113, 145 (Spigelman CJ).

[73] R v Ireland [1997] UKHL 34; [1998] AC 147, 158 (Lord Steyn).

[74] See, for example, Joyce v Grimshaw [2001] FCA 52; (2001) 105 FCR 232; Corporate Affairs Commission of New South Wales v Yuill [1991] HCA 28; (1991) 172 CLR 319, 322-3, Pearce & Geddes, [4.9].

[75] D & R Henderson (MFG) Pty Ltd v Collector of Customs (NSW) (1974) 48 ALJR 132, 134 (Mason J).

[76] [1976] HCA 55; (1976) 135 CLR 569, 576.

[77] NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509, 511-512 (Kitto J).

[78] The Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; (1925) 36 CLR 60,78; Collector of Customs v Agfa Gavaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 396.

[79] NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509, 512-513; R v Francis-Wright [2005] VSCA 79; (2005) 11 VR 354, 355[2](Callaway JA).

[80] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 332; Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, 18[60].

[81] See R v McLeod [2007] VSCA 183; (2007) 16 VR 682.