Director of Public Prosecutions v Holt
[2016] VCC 425
•11 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00288 &
CR-15-00287
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBINT HOLT KENNETH YOUNG |
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JUDGE: | Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 March 2016; 1, 4, 5, 11 April 2016 | |
DATE OF RULING: | 11 April 2016 | |
CASE MAY BE CITED AS: | DPP v Holt | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 425 | |
REASONS FOR RULING
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. E. Regan | OPP |
| For the Accused Holt | Mr A. M. Jackson | Haines and Polites |
| For the Accused Young | Mr A. J. Patton | Haines and Polites |
HER HONOUR:
Introduction
1 Operation Melanisms led to the charging of a number of men, including the accused Holt and the accused Young, with offences relating to what on the prosecution case was a methamphetamine trafficking operation. Ultimately, only the accused Holt and Young are left facing trial before me. One other accused is facing trial separately and charges in respect of all remaining accused have resolved.
2 The accused Holt has pleaded not guilty to charges of trafficking and methamphetamine in pseudoephedrine, possession of equipment and substances for the purposes of trafficking and possession of unregistered firearms.
3 The accused Young has pleaded not guilty to one charge of trafficking in methamphetamine, one of trafficking in amphetamine and one of possession of a precursor chemical, namely phosphorus acid.
4 In brief, the prosecution case that a clandestine laboratory was set up at the accused Holt's home at Steiglitz, just out of Geelong and used to manufacture methamphetamine and possibly amphetamine, which he supplied to Young, who in turn supplied it to other dealers further down the chain. The prosecution case is based on telephone intercepts and surveillance evidence which the prosecution says evidences the regular placing of orders with Young by people he supplied and then the placing of a bulk order by Young aggregated from those individual orders with Holt.
5 The surveillance evidence reveals that Holt would travel to Melbourne from Steiglitz and meet Young and others for lunch almost every Tuesday and dinner almost every Friday. It is then, during those meetings, that the prosecution alleges the drugs which had been ordered were supplied and payment made for them.
6 On 19 March 2014 police executed a search warrant at 2502 Steiglitz Road, Steiglitz. The accused Holt was not present and was arrested later that day in Geelong. In the course of a recorded interview he told the police that he lived at the property at Steiglitz and was the sole occupant of it.
7 Equipment, scientific glassware, documents and substances were found at the property. It is the prosecution case that they related to and were used for the purpose of the manufacture of methamphetamine by the accused Holt. That gives rise to the charge of possession of equipment and substances for the purposes of trafficking. Also found at the property on the day of the execution of warrant were 3620 pseudoephedrine based tablets. Possession of them gives rise to the charge of trafficking in a commercial quantity of pseudoephedrine. That is trafficking by possession of a commercial quantity. A gas bottle was also found at the property. It was later examined and a package containing a trafficable quantity, namely 138 grams of methamphetamine was found in a concealed compartment of the gas bottle. That gives rise to the charge of trafficking in methamphetamine, by possession of a trafficable quantity.
8 Four bolt action rifles were found in the main bedroom of the property. None of them were registered. That gives rise to the four charges of possession of unregistered firearms brought against the accused Holt.
9 On the prosecution case the telephone intercepts reveal the placing of orders by the accused Young with the accused Holt over the period between 1 December 2013 and 7 February 2014 for 406 grams of methamphetamine. This gives rise to a charge of trafficking evidenced by the conducting of a business of producing or supplying methamphetamine by Holt to Young for on sale by him. That is Charge 2.
10 The combined weight of the methamphetamine found in the gas bottle and that alleged to have been sold by Holt to Young is 544 grams. That quantity exceeds the quantity prescribed in the Drugs, Poisons and Controlled Substances Act 1981 as a commercial quantity of methamphetamine. The aggregation of those two quantities and those two different means by which trafficking is alleged to have occurred gives rise to Charge 1, the charge of trafficking in a commercial quantity of methamphetamine between 1 December 2013 and 19 March 2014. It follows that the two discrete charges of trafficking, Charge 7, trafficking by possession of a trafficable quantity and Charge 2 by supply to Young, are laid as alternatives to the between dates charge of trafficking in methamphetamine in a commercial quantity.
11 The charge of trafficking in methamphetamine made against Mr Young is based on the surveillance and intercept evidence in respect of the supply to him by Holt. In other words, it is in effect a mirror image of the trafficking charge brought against Holt in respect of the supply to Young but framed by reference to Young's activities, not only with Holt but also with the people to whom he on sold the drug supplied to him by Holt. The accused Young faces other charges not necessary to detail here.
Fitness for Trial: Young
12 The trial was fixed for hearing commencing on 30 March 2016. Pre-trial argument actually commenced the following day, 31 March. An issue was raised on 31 March in respect to the capacity of the accused Young to participate in the trial as a result of the consequences of a diagnosed form of dementia.
13 On the materials now provided to me, Mr Young had first consulted his general practitioner about problems concerning his memory in late 2014. He was referred to a neurologist, Professor Bladin, who saw him in March 2015 for the first time and referred him in turn to Dr Wardill, a neuropsychologist to conduct a neuropsychological assessment.
14 Her first assessment took place in May 2015. She reported then that,
"Testing revealed mild attentional difficulties which impacted on the efficiency of his memory. Qualitatively, his ability to handle visual material seemed inefficient given his background. However, there was no clear evidence at this stage of visio-spatial dysfunction. Language and executive skills were intact. Mr Young's current cognitive profile is not clearly supportive of a particular diagnosis. There is currently no clear evidence to support a diagnosis of Alzheimer's Disease. Features of his history raise the possibility that he is in the early stages of a dementia with Lewy bodies. It would seem important to monitor Mr Young over time. A review of his cognitive functioning in 12 months is strongly recommended.”
15 In June 2015 Professor Bladin, having reviewed Dr Wardill's report reported back to Mr Young's general practitioner, Dr Ross, that he was of the view that Mr Young had, "Fluctuating cognitive impairment, In association with hallucinations. This raises the possibility that he is in the early stages of a Lewy body dementia.” He recommended a further neuropsychological assessment in six months time.
16 Professor Bladin conducted a follow up review in 2015. Again, he reported back to Dr Ross. On this occasion, he said,
"The diagnosis is still by no means clear as to the specific cause of his cognitive impairment. I have referred him for a repeat neuropsychology assessment in approximately March 2016."
17 According to a further report from Professor Bladin to Dr Ross, Mr Young attended for review again on 19 January 2016. Professor Bladin said,
"The reason for his visit today is a little unclear. … He then revealed he has a court case pending regarding cocaine dealing … He asked me to undertake medical reports so he did not have to go to court. However, this will be complex and certainly the Police will require a formal request from his solicitor for this. He is due to have a repeat neuropsychology assessment in March and I will be reviewing him again once this is completed."
18 No request was made of Professor Bladin by Mr Young's solicitors to conduct an assessment as to whether Mr Young was fit for trial in the terms required to be addressed under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
19 The further neuropsychological assessment referred to in Professor Bladin's January 2016 report to Dr Ross was conducted by Dr Wardill on 17 March. She reported,
"Mr Young's initial cognitive profile was not supportive of a particular diagnosis. There was no evidence at that time to support a diagnosis of Alzheimer's disease. Features of his history raise the possibility that he was in the very early stages of a dementia with Lewy bodies. A review assessment was recommended. …
When seen for reassessment today there were changes in his presentation compared to his previous assessment. … he was quite irritable. He had not been irritable at his previous assessment. While it was possible to contain his behaviour within the assessment session, he was more disorganised than when he was seen previously. It was difficult on this occasion, to get a clear history from him.
When seen for neuropsychological review, eleven months after his previous assessment, many of Ken's cognitive performances remained at a similar level. While his immediate and working memory spans had declined, other attentional measures were performed at a higher level than seen previously. Memory remained inefficient but at a similar level to that seen previously. He remained well oriented. There was no evidence of a language disturbance. There was no clear evidence of decline in his visuospatial functioning.
There was however a change in Ken's presentation compared to his previous assessment. He was irritable and his mood was quite labile during the session. He was more disorganised. …
The cause of Ken's current difficulties is unclear. While there were some variability in his cognitive performances, there was not a convincing picture of a progressive decline in his cognitive functioning. The possibility of an early dementia, however, cannot be excluded."
20 No request was made of Dr Wardill by Mr Young's solicitors to conduct an assessment as to whether Mr Young was fit for trial in the terms required to be assessed under the Act. However, the day after Dr Wardill's assessment, Mr Young attended upon Dr Walton by arrangement with his solicitors for the purposes of an assessment of his fitness to be tried in accordance with the criteria in the Act. Dr Walton was not provided with the reports from Professor Bladin or Dr Wardill, the treating neurologist or neuropsychologist.
21 All he was given was a report from Mr Young's general practitioner, Dr Ross dated 1 February 2016 and which contained the following,
"Mr Young feels his health precludes him from attending court, and has asked for a report outlining reasons for this. …
In December 2014 … He was referred to neurologist, Professor Christopher Bladin.
Professor Bladin has done investigations and obtained a neuropsychological report. The diagnosis made was Lewy body dementia. …
His dementia is progressive, but also like all dementia, is fluctuant in that he has good and bad days. These cannot be predicted.
Given the diagnosis of Lewy Body dementia, his appearance in court is problematic as his ability to respond logically cannot be predicted or guaranteed.”
22 This, as can be seen from the passages I have quoted above, is frankly misleading. There had been no diagnosis of Lewy body dementia, nor has there been any finding of progressive decline in cognitive functioning. Dr Walton's original assessment was therefore unfortunately based on incomplete, and as it turned out, inaccurate information.
23 He was told by Mr Young, there had been a significant decline in his mental functioning over the past two years, something that led Dr Walton to conclude that there had been a fairly rapid deterioration over that time. The reports of Professor Bladin and Dr Wardill do not bear that out.
24 Dr Walton was told that the trial would be quite lengthy and would, "Necessitate close analysis of voluminous recordings and the like." It is unclear what information Dr Walton was given about the length and the nature of the trial. The estimate I have been given is for a trial of three to four weeks with the playing time of the recordings of the intercepted telephone conversations taking up less than one sitting week in total. They have been neatly divided into categories.
25 All of this is clear from the various iterations of the summary of the prosecution opening provided to Mr Young and his legal advisors.
26 The transcriptions of the original recordings have been with Mr Young and his legal advisors since at least the time of the service of the hand up brief. There has - or should have been ample time in the lead up to the trial to take Mr Young through the recordings and seek his instructions on them at a time and pace suitable to him.
27 Dr Walton was satisfied that Mr Young was aware of the nature of the charges, understood the process of pleading, and could provide meaningful instructions and exercise his jury challenges. In his view, he would not have difficulty understanding the nature of any evidence given against him. He said there could be a difficulty with Mr Young's ability to follow proceedings if they proved to be finely detailed and protracted. In his view, Mr Young's ability to provide ongoing instructions in the course of the trial, "Likely is seriously compromised." He concluded,
"Precisely at this point I could not state that Mr Young is unequivocally unfit but the situation certainly is borderline and what is known about the cause of his brain disease is that inevitably the situation will become worse. Precisely what the rate of deterioration may be cannot be stated with great accuracy but it is certainly the case that there has been quite a significant decline in mental functioning over the past two years, that is, the deterioration does seem to be fairly rapid."
28 Since writing that report, Dr Walton has been provided with the reports of Professor Bladin and Dr Wardill. I was told by Mr Patton on last Monday 4 April that he had spoken to Dr Walton after he had been given the reports, and he advised that having seen the reports, it strengthened, or confirmed his opinion that Mr Young's ability to participate in the trial by following proceedings and providing ongoing instructions in the course of the trial, would be seriously compromised. I was told that Dr Walton would provide a written report to that effect later that day or the following day.
29 I had previously expressed my concerns that no proper evidentiary basis had been established to justify the conduct of the fitness hearing. That is, that the treating neurologist and neuropsychologist had not been asked to make an assessment by reference to the criteria under the Act and that Dr Walton had not been provided with their reports. However, having been told that Dr Walton was of the opinion that there was a serious issue in respect of Mr Young's fitness after having seen the reports of Professor Bladin and Dr Wardill, I took the view that a fitness hearing should be conducted.
30
I was conscious of the criticisms by the Court of Appeal of the trial judge in
S M v The Queen[2011] VSCA 332 in respect of the failure to adjourn to permit a fitness investigation in light of what was at the time, no doubt, unsatisfactory material provided at the time of a listed commencement of trial. Given the delays that had already been caused by the late raising of this issue, and confident that Dr Walton's position had been accurately stated, I asked Mr Regan to obtain instructions as to the prosecution's attitude, although the written supplementary report from Dr Walton was not at that stage available.
31 Young was charged on 27 March 2014. He was committed for trial on 20 February 2015. The trial date had been fixed for 30 March since the initial directions hearing on 21 February 2015. There had been a number of mentions before the list judge in May 2015. The final directions hearing was held on 1 February 2016, and further final directions hearings were held on 22 February and 15 March and 17 March. Pre-trial argument as I said commenced in fact the following day.
32 Mr Patton had provided Dr Walton's report and the report of the general practitioner dated 1 February 2016 to me on that day and slightly before that as I understand it to the prosecution. On 31 March Mr Patton applied for an adjournment in order for a fitness inquiry to be conducted. At that stage I refused the adjournment indicating that I would proceed with the other pre-trial argument in respect of Mr Holt, and would return to the matter when I had finished the Holt pre-trial argument and when he had had the opportunity to provide Dr Walton with the reports from the treating neurologist and neuropsychologist.
33 By Tuesday, 5 April, all pre-trial argument on behalf of Mr Holt had concluded, but for the examination on a voir dire of one remaining witness who was unavailable until today, Monday, 11 April.
34 Last Tuesday Mr Regan sought instructions and advised that the prosecution wished to have Mr Young assessed by Forensicare. He had been foreshadowing that over the previous days.
35 The delays associated with that are significant. I am now told that an appointment for assessment has been made for mid-May. And I was told last week that it was unlikely that a report would be available until early July. It was the prosecution position that the trial in respect of both accused should be adjourned until the fitness question was properly investigated and a fitness inquiry could be conducted.
36 As a result, last week I vacated the trial date and stood the pre-trial matters over until today when I indicated having heard from the final witness required for the Holt pre-trial arguments, I would deliver my rulings in respect of the pre-trial matters raised by him, and fix a new date for the trial including for the fitness hearing.
37 Having regard to what I had been told was Dr Walton's opinion after he had seen the reports of Professor Bladin and Dr Wardill, it was agreed that it would be inappropriate for Mr Patton to present his other foreshadowed pre-trial arguments in respect to the accused Young until the fitness issue had been determined.
38 After adjourning last week, the further report from Dr Walton was provided. It is not as definite as I had been given to understand. Dr Walton said, having referred to the reports of Professor Bladin and Dr Wardill:
"While it appears that there may be less certainty than I had gleaned previously as to the precise brain disease pathology, there is no sensible doubt about the fact that Mr Young is suffering from cognitive deficit and that this is deteriorating with time.
I have been informed that Mr Young will need to apply himself to lengthy telephone intercept transcripts involving the interpretation of potentially ambiguous language, that Counsel certainly has had difficulty obtaining consistent and coherent instructions from him and that Mr Young has been observed to doze off while actually in court.
You will recall that my original opinion expressed concern about Mr Young's fitness but I was somewhat equivocal at that point. With the additional information provided to me, my concerns have been reinforced and while I would continue to describe the situation regarding his fitness as far from black and white, in my opinion, on the balance of probabilities he is properly described as currently unfit.
The areas of deficit include: likely inability to follow the course of a trial because of difficulty maintaining adequate attention and being able to remember what may be important information to pass onto his legal practitioners and, in that sense, his ability to provide instructions is also compromised."
39 The information provided to Dr Walton and to the court in relation to Mr Young's fitness was provided in stages and decisions were made by me, and opinions expressed by Dr Walton which needed to be revised once it became clear that the information on which the earlier decision was made or the earlier opinion expressed was inaccurate or incomplete.
40 Reviewing the entirety of the information now available and as I have set it out, I am not sure that there is a real and clear issue in respect of fitness raised on the materials before me. I am not sure exactly what information Dr Walton was given as to the length and complexity of the trial, or what his understanding was of the capacity of Mr Young to have already, at leisure and in his own time or at his own pace, been able to consider the recorded calls and to provide instructions about them.
41 Nor am I sure that any consideration has been given to whether the issues in relation to Mr Young's concentration can be addressed by means short of finding him unfit. In particular whether any consideration has been given as to whether adjustments to sitting hours and to the frequency of adjournments whenever Mr Young's concentration appears to be impaired, would be sufficient to address the concerns that have been raised.
42 I raise this in the detail I have so that the parties can give consideration as to whether they wish to ask me to revisit the vacating the trial date order that I made last week, or want to raise any other matters detailed by that.
43 I appreciate that my vacating the trial date last week and indicating the matter should go off may well have meant that it is too late to go back but I wanted to put on record my concerns about the inaccuracies in the materials and the manner in which the fitness issue was raised. And to make sure that it was all on record in the event that the fitness assessment was pursued, so that the material relevant to it was appropriately provided to Forensicare.
Pre-trial issues: Holt
44 Dealing then with the pre-trial issues in respect of Mr Holt. A number of pre-trial issues in respect of him have arisen for determination. In order to properly consider them, it is necessary to have regard not only to the manner in which the prosecution puts its case, but to what is in issue in the trial.
Defence Response: what is in issue
45 In his defence response the accused Holt, "Denies that he is criminally liable for the charges."
46 In addition to this general denial, he denied specifically
(a) that the Steiglitz property was being used for production of methamphetamine,
(b) that he manufactured methamphetamine,
(c) that he was carrying on a drug dealing business, and
(d) that Young ordered and he supplied Young with methamphetamine in the amount alleged 420 grams, or in any amount.
47 It can fairly be said then that by his defence response the accused Holt has put the Crown to proof in respect of his state of mind, that is in respect of the relevant mental elements in relation to the possession and trafficking charges. He also disputes the inferences sought to be drawn from the telephone intercepts and surveillance evidence in relation to the physical elements of those parts of the trafficking charges relating to trafficking by supply.
What is not in issue
48 In the course of argument, Mr Jackson advised that Mr Holt did not dispute
(a) the evidence as to what was seen and found at the property at Steiglitz on the day of the execution of the warrant,
(b) the evidence of his DNA and fingerprints said to be found on various items found at the property and later tested by the relevant forensic experts,
(c) the validity of the search and telephone intercept warrants,
(d) the accuracy of the recordings and transcriptions of the telephone intercepts, and
(e) the accuracy of the observations by the surveillance crews and as noted in the surveillance logs.
49 Although he challenged the admissibility of the answers to the recorded interview in respect of Mr Holt's occupancy of the property at Steiglitz, Mr Holt was prepared Mr Jackson said, to admit that he was living at the property at the time covered by the charges.
50 The following pre-trial issues have been raised:
(a) the admissibility of the evidence sought to be led by the prosecution in relation to Operation Renegade. That was a 2001 investigation, which led to charges being laid against Mr Holt in respect of the conducting of a methamphetamine manufacturing operation at the same property at Steiglitz, a methamphetamine trafficking operation conducted from the same property at Steiglitz and possession of firearms, namely bolt action shotguns from the same property at Steiglitz. In 2004, in resolution of all charges arising out of Operation Renegade, the accused, Holt, pleaded guilty to one charge of trafficking in methamphetamine and one of possession of firearms;
(b), the admissibility against Mr Holt of intercepted telephone calls between Mr Young and the co-accused to whom it is alleged Young sold the methamphetamine obtained from Holt;
(c), the admissibility of the evidence of the finding of methamphetamine in a gas cylinders seized at the Steiglitz property on the day of the execution of the warrant;
(d), the admissibility of the questions and answers in the recorded interview conducted with Mr Holt following his arrest in which he admitted occupancy of the property at Steiglitz; and
(e), severance of the charges concerning possession of firearms from the drugs charges.
Evidence of previous misconduct: Operation Renegade
51 On 13 November 2001, a little over 12 years before the execution of the warrant in Operation, police executed a warrant at the same property in Steiglitz as part of Operation Renegade. On the day that warrant was executed, the accused Holt was living at the property and was arrested at the scene. He was not the primary target of Operation Renegade. However on the prosecution evidence he was manufacturing methamphetamine at the property at Steiglitz and supplying it to a Melbourne-based ring operated by a man by the name of Gary Hutchinson.
52 On the day of the execution of the 2001 warrant, 540 grams of finished methamphetamine was found at the property. Equipment, scientific glassware, documents and substance used in the manufacture of methamphetamine were found at the property. That is, what was said to be a clandestine laboratory, similar to that observed on the day the 2014 warrant was executed, was found when the 2001 warrant was executed. Pre-cursor chemicals used in the making of methamphetamine were also found and a large quantity, over 1,000 pseudoephedrine-based cold and flu tablets as well as significant quantities of empty cold and flu tablet blister packs were found at the property during the 2001 raid.
53 Previous surveillance, telephone intercepts and the involvement of an undercover operative known as Pat supported the inference that on the day of the 2001 raid, Holt was in possession of eight ounces of methamphetamine which he was to provide to associates of Hutchinson's for the purposes of meeting an order placed by the undercover Pat. There was also evidence that the accused Holt had previously supplied six ounces of methamphetamine to Hutchinson or his associates in order to meet an earlier order placed by Pat. A number of firearms, including a number of bolt action shotguns similar to those found in the 2014 raid were found during the 2001 raid. Some were found in the house, some were found buried under grasstrees (or Xanthorrhoea) around the property.
54 Following the 2001 raid, Holt was committed for trial on charges including commercial quantity trafficking in methamphetamine, trafficking in pseudoephedrine, possession of equipment or substances used in the manufacture of a drug of dependence for the purpose of trafficking, possession of money alleged to be proceeds of crime and multiple charges of being a prohibited person in possession of a firearm.
55 By the time argument in respect of the admissibility of the Operation Renegade evidence in this trial had concluded, much of the original evidence in respect of the 2001 charges have been located. The available evidence includes the original hand up brief and committal transcript. Relevantly, for these purposes, that includes the original exhibit logs recording what was seen and retrieved from the property at Steiglitz, the certificates of analysis in respect of the various drugs seized and the certificates relating to the inspection of the firearms seized. All original exhibit log keepers, one of the two drug analysts and the firearms examiner are all available and able to attest to what is recorded in their statements, logs or certificates.
56 It is of course acknowledged that it was unlikely any of them would have any independent recollection of the matters recorded in their statements, logs or certificates.
57 The only relevant materials which have not been able to be located are the photographs taken at Steiglitz on the day of the 2001 raid.
58 A copy of the notice of committal for trial was also available. It records not only the charges on which Mr Holt was committed for trial, but that when asked how he pleaded, he reserved his plea to all charges.
59 In 2004, following the resolution of a trial in respect of another matter concerning Holt, all outstanding charges he faced in respect of Operation Renegade were resolved. Again, by the time argument had concluded, the original trial and plea presentments had been retrieved from court archives, and the transcript of the plea hearing and the reasons for sentence of Mr Holt had also been retrieved. They reveal that Holt, represented then, as now, by Mr Jackson, pleaded guilty to one between dates charge of trafficking in methamphetamine particularised by the supply of the six ounces to the undercover Pat on 1 November 2001, and possession for sale of the eight ounces found in his possession on 13 November 2001, the day of the raid, and one rolled up charge of being a prohibited possession in possession of firearms.
60 This charge particularised all eight firearms found on the premises on the day of the raid. One of those was a handgun, the remaining firearms were bolt action shotguns. Two guns, when found, were loaded. They were, as I understand it, located inside the house. Some, if not all of the remaining guns were buried under the grass trees in various locations on the property.
61 The prosecution has filed and served a notice pursuant to s.98 of the Evidence Act of its intention to adduce as coincidence evidence certain evidence relation to Operation Renegade.
62 I refer in particular to paragraphs 4 and 6 of version 2 of that notice dated 24 March 2016.
4. Should the accused ROBIN HOLT dispute in this current trial that he was operating a “clandestine laboratory” at 2502 Steiglitz Road Steiglitz in 2013 and 2014 and possessing pseudoephedrine-based tablets there and producing methylamphetamine (and some amphetamine) and trafficking methylamphetamine mixtures to Kenneth YOUNG and dispute that he was in possession of unregistered longarms at 2502 Steiglitz Road Steiglitz on 19 March 2014, THEN THE PROSECUTION WILL SEEK LEAVE FROM THE COURT TO ADDUCE CO-INCIDENCE EVIDENCE proving that:
(i)At 2502 Steiglitz Road Steiglitz on 13 November 2001 when Robin HOLT was present Victoria Police seized a “clandestine laboratory” comprising the equipment such as flasks, heaters, beakers, documents and information, etc. and the substances listed within Annexe B;
(ii)At 2502 Steiglitz Road Steiglitz on 13 November 2001 Victoria Police seized large numbers of boxes of pseudoephedrine-based cold and flu tablets listed in Annexe B used as a base for extracting pseudoephedrine which was in-part the basis for methylamphetamine manufactured at that location;
(iii)At 2502 Steiglitz Road Steiglitz on 1 November 2001 Robin HOLT supplied Garry Hutchinson with six ounces of methylamphetamine mixture;
(iv)At 2502 Steiglitz Road Steiglitz on 13 November 2001 Robin HOLT had in his possession for sale 148.3 grams of methylamphetamine mixture in the kitchen and 446.7 grams of methylamphetamine mixture in the bungalow;
(v)At 2502 Steiglitz Road Steiglitz on 13 November 2001 Victoria Police also seized a number of unregistered firearms and ammunition, namely a 12 gauge Baikal double barrel shotgun; a 12 gauge Bentley slide action shotgun; a Winchester Cooey .22 self-loading rifle; a Stirling model 20 .22 self loading rifle and a 9mm calibre Smith & Wesson model 39 self-loading handgun, plus assorted ammunition.
(vi)That the said Robin HOLT pleaded guilty to Trafficking and Firearm charges in the County Court at Melbourne in December 2004.
(vii)That Robin HOLT’s plea on 16 December 2004 involved admitting that he had been involved in the trafficking (to one Garry Hutchinson) of 6 ounces of methylamphetamine on 1 November 2001 and the possession for sale on 13 November 2001 (of 8 ounces at Steiglitz) and a defence concession that there “… was equipment there able to be used in the manufacture of methylamphetamine” (see 16 December 2004 County Court plea transcript page 15 lines 24 to 28). Please note that in his sentencing remarks on 19 December 2004 His Honour Judge Williams found, “…The raid on your premises brought to light the whole gamut of paraphernalia and equipment for the manufacturing of amphetamines. Your position then as a manufacturer of amphetamines indicates that you were not involved in only some small or peripheral way, but in a significant way.”
6. For the avoidance of doubt, the prosecution intends to rely on the 2001 evidence and his 2004 pleas to establish what ROBIN HOLT’s state of mind in late 2013 and early 2014 during the commission of the offences charged on the current indictment, namely:
a.that ROBIN HOLT had previously manufactured methylamphetamine at 2502 Steiglitz Road in 2001 and therefore had expertise and familiarity with manufacturing processes involving the extraction of pseudoephedrine from cold-and-flu-type tablets;
b.that ROBIN HOLT in 2013 and 2014 had set up and was operating a very similar clandestine laboratory at the same premises in late 2013 and early 2014 using, the prosecution contends, the skill, knowledge and experience acquired during the 2001 offending;
c.that ROBIN HOLT had supplied one Garry Hutchinson on 1 November 2001 with six ounces of methylamphetamine mixture that Judge Williams found he had manufactured and which demonstrated a willingness on his part to directly supply 3rd parties with methylamphetamine mixture from Steiglitz, which is directly relevant to the alleged state of mind the prosecution contends he held in late 2013 and early 2014 in his dealings with Kenneth Young;
d.that ROBIN HOLT by March 2014 had re-acquired a similar cache of illicit firearms to those he possessed in 2001 (with the exception of the 9mm Smith & Wesson model 39 semi-automatic handgun found in 2001), which the prosecution contends can be used in assessing his state of mind in 2014 in relation to his knowing possession of the Firearms discovered at Steiglitz in 2014.
63 When the matter came on for pre-trial argument, Mr Regan on behalf of the prosecution advised that the primary basis upon which the prosecution sought to rely on the evidence identified in the coincidence notice in respect of the 2001 Steiglitz matter, was as evidence relevant to proof of the accused Holt's state of mind in respect of the possession and trafficking charges.
64 This, he submitted, was in accordance with a decision of the Court of Appeal in Ivanoff v The Queen [2015] VSCA 116. Although relying essentially on the matters set out in the coincidence notice, Mr Regan provided a further document which identified with some greater precision, what evidence he sought to lead and the basis on which the prosecution submitted it was relevant to a fact in issue in the trial. I have slightly reformatted that to set out in a table the evidence the prosecution seeks to lead in respect of Operation Renegade in this trial, and the basis on which it is said the evidence is relevant to a fact in issue at this trial.
Operation Renegade Evidence Relevance to current charges The supply by Holt to Hutchison of 6 oz of methamphetamine on 1 November 2001 Holt’s state of mind in respect of trafficking, specifically familiarity with and knowledge of methamphetamine, and the supply of it in amounts referable to ounces Holt’s presence at the property at Steiglitz at the time of the execution of the 2001 warrant Holt’s long standing occupancy of the property The presence of equipment and precursor chemicals capable of use in the manufacture of methamphetamine at the time of the execution of the 2001 warrant Similarity in equipment and precursor chemicals on both occasions, supporting inferences:
Holt knew, in 2014 what the equipment and chemicals could be used to manufacture, and
His intent to manufacture methamphetamine
Presence of pseudoephedrine based tablets and empty blister packs at the time of the execution of the 2001 warrant Similarity in method of manufacture of methamphetamine on both occasions, supporting inference
Holt knew how to manufacture methamphetamine using pseudoephedrine, and
Was behind, or involved in the manufacture of methamphetamine at the property in 2014
Finding of 540 g of finished methamphetamine at Steiglitz at the time of the execution of the 2001 warrant Familiarity with methamphetamine as a substance
Familiarity with methamphetamine as a saleable substance
Previous possession of methamphetamine for sale
Finding of firearms (excluding handgun) at the time of the execution of the 2001 warrant Similarity in type of weapons supporting inference the same person was responsible for the 2001 collection and the “replacement” collection The combination of the drug and firearm evidence in 2001 The particular, arguably unique combination of the similar equipment and substances, and similar type of firearms being found at the same property in 2001 and 2014 when occupied by the same person
65 Mr Regan submitted knowledge was a central, and important element in issue in the trial in respect of all charges. Relevantly to this case that knowledge includes whether the accused had the requisite knowledge to be aware of the existence of a clandestine laboratory for the manufacture of methamphetamine on his property, or how to produce methamphetamine in the clandestine laboratory set up on the property, and about how pseudoephedrine tablets could be subjected to extraction processes in order to produce methamphetamine.
66 To these issues, he submitted it was relevant that in both 2001 and 2014, when police raided the property, a clandestine laboratory was discovered along with methamphetamine and pseudoephedrine. In both 2001 and 2014 the method of manufacture employed at the laboratory was the extraction of pseudoephedrine from cold and flu medication and its synthesis into methamphetamine. In both 2001 and 2014 the quantity of pseudoephedrine found at the Steiglitz property exceeded the threshold for a commercial quantity. In both 2001 and 2014 a number of bolt action rifles were found on the premises.
67 The combination of a clandestine laboratory set up along similar lines on both occasions, at the same premises occupied by the accused on both occasions, together with the presence of methamphetamine, and of pseudoephedrine in the quantities in which it was found, pointing to the same process of production of methamphetamine from pseudoephedrine, together with firearms of the same sort being found on both occasions makes it highly probative the prosecution submits that the accused had the requisite knowledge and intention in respect of the production of methamphetamine for the purpose of trafficking in methamphetamine as alleged in charges 1, 2 and 7, and trafficking by possession of commercial quantity of pseudoephedrine, and in respect of the possession of equipment et cetera for the purpose of trafficking.[1]
[1]These paragraphs, [65]–[67], were in error not read into the transcript from the draft ruling. They have been incorporated into the revised reasons.
68 The strength of the probative value of the evidence it submits is reinforced by the negotiated pleas in 2004 to the charges of trafficking in methamphetamine and possession of the firearms. The prosecution further submits the evidence is, in accordance with the notice filed, properly capable of being characterised as coincidence evidence, or as being used to support coincidence reasoning.
69 It submits the 2001 evidence it seeks to rely on, together with evidence negotiated 2004 pleas, demonstrates that the accused Holt was connected to the 2001 seizures and that it is improbable that the reconstitution of the set up as it was found in 2014 could have occurred coincidentally.
70 Although Holt when interviewed admitted that he was the sole occupant of the property at Steiglitz in 2014 and has indicated that if the answers given in his recorded interview in relation to his occupancy of the property are excluded, that he will admit occupancy, by his pleas and defence response he denies having any knowledge of the equipment or the firearms or the drugs or the pseudoephedrine tablets at Steiglitz in 2014.
71 Mr Regan argues that evidence of the 2001 seizures and the 2004 pleas support a process of reasoning that it is well beyond coincidence that the accused would not have knowledge in 2014 of those matters arising out of the 2014 raid and the 2013-2014 investigation.
72 Although the accused Holt is not charged with manufacture, and had not by his pleas in 2004 admitted manufacture of methamphetamine, it is the underlying premise of the prosecution case that on both occasions his occupancy of the premises at Steiglitz with a clandestine laboratory set up in the way it was, and with the presence of the methamphetamine and the pseudoephedrine, that he was the manufacturer who then trafficked in the methamphetamine produced, in 2001 to Hutchison, and in 2014 to Young.
73 Mr Regan sought to reinforce the prosecution position in relation to the inference to be drawn as to the accused Holt manufacturing the methamphetamine that was supplied to Hutchison in 2001, by relying upon a finding of His Honour Judge Williams when sentencing Holt in 2004. In his sentencing remarks His Honour said that Holt had manufactured the methamphetamine the subject of the trafficking charge to which he had pleaded guilty.
74 Even if the evidence identified in the table that I have set out is admissible under the Ivanoff principle or as coincidence evidence, in my view His Honour's finding that Holt manufactured methamphetamine set out in his sentencing remarks cannot be used as evidence that that is what he did.
75 There was no express admission by Holt to that effect in his 2004 plea. It is not a necessary implication following from his plea. Observations in sentencing remarks fall into a different category to the primary evidence, that is, what was observed by the police at the time of the raid, what was discernable from the telephone intercepts and surveillance in relation to the supply of the 6 ounces to Hutchinson's associate for the purpose of supply to the undercover Pat, the evidence of the analysis of what was found at the scene and the evidence of the guilty pleas and what is necessarily admitted by reason of that.
76 The prosecution seeks to rely on the evidence of the findings in 2001 and the pleas, including what can be fairly said to be expressly admitted by Holt or to be necessarily implied as a result in 2004 to establish that the accused Holt had some expertise in running or having a clandestine laboratory operating on his premises and knowledge that methamphetamine had been produced from it.
77 That would, in my view, invoke parallel reasoning to that which applied in Ivanoff. That is that it would be able to be used by a jury as a factor in asking whether the accused intended to use the equipment found in 2014 to extract pseudoephedrine from cold and flu tablets and produce methamphetamine to then on supplied to Young.
78 The prosecution argues that the inference could be drawn that that was the case in 2001 and that it was happening again in 2013–14, In other words that it can be inferred from the 2014 material that I have identified that the accused Holt had experience and knowledge in respect of the production of methamphetamine from pseudoephedrine.
79 Although the threshold levels for what constitutes a commercial quantity of methamphetamine and pseudoephedrine have changed since 2001, the 2001 matters could also be used, the prosecution argues, as evidence that the accused was aware that the legislature distinguished between possession of different quantities, or trafficking in different quantities, and that different penalties applied, depending on the quantities of the substance produced, possessed or sold.
80 In his oral submissions, Mr Regan made it clear his primary basis for admission of the evidence of the 2001 Steiglitz matters was as original evidence, relevant to the accused’s state of mind or knowledge; He submitted however, that the evidence sought to be adduced in respect of the 2001 matter was also admissible as coincidence evidence. However, consistently with the reasoning in Ivanoff, he did not press for the evidence to be relied on as supporting coincidence reasoning if admitted as original evidence going to accused’s state of mind. If however, I ruled the evidence was not admissible as original evidence then he submitted it should be admitted as coincidence evidence.
81 Mr Jackson opposed the admission of the evidence. He submitted that none of the evidence in respect of the 2001 Operation Renegade or the subsequent resolution of the charges in 2014 and the resultant guilty pleas to the charges of trafficking and possession of firearms was relevant to any fact in issue in the trial. If any such evidence was found to be relevant he submitted it should be excluded under s.137. He further submitted the evidence was not capable of supporting coincidence reasoning. Or if it was it should be excluded under s.101. He submitted that there was no or insufficient common ground between the 2001 and 2014 charges to render the 2001 matters relevant to the current charges.
82 Evidence of the charges originally led against Holt he submitted should not be led as they amounted to no more than allegations, some of which were ultimately not pursued. Although Mr Holt was originally charged with commercial quantity trafficking in methamphetamine and possession of pseudoephedrine or trafficking in pseudoephedrine and possession of items for the purpose of manufacture, ultimately those charges were not proceeded with. To lead evidence of the 2001 charges which were not proceeded with was, Mr Jackson argued, to improperly attempt to re-litigate those matters or to retry Mr Holt on them.
83 The court file in respect of the 2001 matter showed that a new presentment containing the two plea charges was filed over the original presentment. And as the formal record, the handwritten entry on the back of the original presentment showed, all outstanding charges on the trial presentment as against Mr Holt were then thereafter permanently stayed.
84 In 2004, Holt pleaded guilty to one charge of trafficking in methamphetamine which encompassed those two discrete acts to which I have referred, one of supply and the other of possession for the purpose of supply, and which in aggregate, came to an amount of less than a commercial quantity.
85 There is, he submitted, a qualitative difference between a charge of commercial quantity trafficking and of trafficking in a lesser quantity. The allegation in the current trial is of supply to Young on a repeated basis, essentially twice weekly over an extended period, as well as a single instance of possession for supply on the day of the raid.
86 That differs, he submitted, from the charge to which Mr Holt pleaded guilty in 2004, based on a single act of supply and a single act of possession for supply. In addition, the 2014 firearms charges and the rolled up firearms charge to which Mr Holt ultimately pleaded guilty in 2004 were of a different nature. The 2001 charges were of being a prohibited person in possession of firearms, not, as is the case here, charges of possession of unregistered firearms.
87 The manner in which the 2001 charges were resolved meant, he submitted, that there was no admissible evidence that the accused Holt had manufactured methamphetamine in 2001, was in possession of items and equipment for use in the manufacture of drugs, possessed or trafficked pseudoephedrine whether in a commercial quantity or a lesser amount, or trafficked in a commercial quantity of methamphetamine.
88 In my view, there is a clear distinction between what can be proved as a result of an admission, for example, by way of a plea of guilty, and direct or original evidence of observation from surveillance operatives, police executing a search warrant and forensic examiners from which inferences as to a person's participation in criminal activity can be inferred. It is not a necessary precondition to the admission of evidence of discreditable conduct either than that directly relating to the offences on the current indictment that an accused person has admitted that conduct whether by plea of guilty or otherwise.
89 It is therefore not to the point that the accused has not been charged with the manufacture of methamphetamine on this indictment, or the charges of manufacture or possession of items for the purpose of manufacture were ultimately not proceeded with in 2004. In my view, the prosecution is not limited to relying solely upon the agreed basis on which the charges against Mr Holt were ultimately resolved in 2004 in respect of his 2001 participation in methamphetamine or firearm related activity, as revealed by the evidence sought to be relied on from Operation Renegade.
90 If there is other evidence available as to involvement in relevant criminal activity in 2001 which meets the test of relevance under s.55, it is admissible unless it falls to be excluded by s.137 or the exercise of any other exclusionary rule or discretion. The fact an accused pleaded guilty may give evidence, in respect of admitted facts in relation to the offences to which he pleaded guilty, greater weight by reason of the admission. But a guilty plea is not a precondition to the admissibility of evidence of other wrong doing. That has never been the law.
91 Mr Jackson next submitted that this was an attempt to retry the accused on matters which have been the subject of an order for a permanent stay by reason of the filing over of the plea indictment or presentment: I disagree. What the prosecution seeks to do, is to rely on the evidence of the observations of the police who executed the warrant in 2001 at the property at Steiglitz in respect of the finding of what the prosecution says was at clandestine laboratory, and the discovery of the pseudoephedrine and methamphetamine on the site on that day.
92 That is not an attempt to retry the accused on the matters that ultimately the prosecution did not proceed with. The staying of those original charges must be seen in the context of the resolution of all outstanding charges by the guilty pleas ultimately entered by Mr Holt in 2004.
93 Mr Jackson next submitted that Ivanoff was a case confined to its own unusual facts, that is, that it was authority only for the admission of evidence of a previous conviction in respect of commercial quantity cultivation, where the issue at trial was the accused’s knowledge as to what constituted a commercial quantity: I disagree. The reasoning of the court in Ivanoff makes it clear that it was stating a more general principle.
94 Its application to the circumstances of Ivanoff's case was the relevance of the guilty plea to a charge involving knowledge of what constituted a commercial quantify of cannabis on a subsequent trial when the sole issue to be determined was the accused's knowledge on that occasion, that the amount cultivated was a commercial quantity.
95 Mr Jackson next argued that evidence the accused Holt pleaded guilty to a charge of trafficking of a trafficable quantity, not a commercial quantity could amount to no more than evidence of rank propensity when the accused was facing a charge of trafficking in a commercial quantity.
96 I disagree. If the sole issue in Mr Holt's current trial were knowledge that the quantity being trafficked was a commercial quantity, there might be force in that argument. However it musts be borne in mind that in 2001 Mr Holt was charged initially with commercial quantity trafficking. The charges against him were ultimately resolved by amongst other things the acceptance of a plea of guilty to trafficking in an amount that constituted a trafficable, not a commercial quantity.
97 This in itself in my view constitutes some evidence that the accused had an awareness that the legislature distinguished between quantities trafficked, that is that separate offences were created for trafficking in a trafficable quantity and a commercial quantity.
98 In any event apart from the quantity, the elements of the offences of trafficking and commercial quantity trafficking are the same. If the other elements of trafficking, apart from knowledge of quantity are in issue, as is the case here, then the reasoning in Ivanoff would apply to the other knowledge elements in respect of the offence of trafficking as well.
99 Mr Jackson next submitted that it was not open to find that there was a history of Mr Holt having operated similar clandestine laboratories in 2001 and 2014 because there was insufficient equipment on site on the day of the raid in 2014 to actually manufacture methamphetamine. I was told that at committal the prosecution expert Dr Neely agreed that there was no condenser on site on the day the warrant was executed in 2014 and that a condenser was a necessary part of the equipment required in the manufacture of methamphetamine under the process that was apparently in contemplation at the property.
100 The absence of one piece of equipment and the inability to manufacture or complete the process of manufacture on the day of the raid, having regard to all of the other matters and things found on the day, is insufficient in my view to rob the overall evidence of its relevance or probative value.
101 Next, Mr Jackson submitted that evidence of the previous conviction for trafficking amounted to nothing more than mere rank propensity. However he ultimately acknowledged that it was not the fact of conviction but the circumstances behind it that was sought to be relied upon here, and that the relevant question was whether the circumstances of the past matter and the current were sufficiently similar or relevant to a fact in issue.
102 In that regard he also acknowledged or conceded that in a case where the accused puts the Crown to proof in respect of intent, knowledge or state of mind, that it was open to the prosecution to lead evidence of the circumstances of the original offending consistently with the reasoning in Ivanoff to rebut any reasonably open or anticipated defence.
103 Ivanoff was as I have said, a case involving a charge of cultivation of a commercial quantity of cannabis. The sole issue at trial was whether the prosecution could establish the requisite state of mind for the cultivation of a commercial quantity of cannabis namely an intent to grow at least 25 kilograms or 100 plants.
104 The Court of Appeal upheld a decision by the trial judge to admit evidence that the accused had, ten years earlier, pleaded guilty to and been convicted of a charge of attempt to traffic by cultivation in a commercial quantity of cannabis. Although in that case, as here, the prosecution had served a coincidence notice, the trial judge found that the evidence was better characterised as evidence relevant to the accused's state of mind, “His intention to grow what he grew” and his knowledge as at the time of the earlier conviction of what constituted a cultivation of a commercial quantity of cannabis.
105 The trial judge having determined the evidence was relevant on that basis considered whether its prejudicial effect outweighed its probative value to the extent that it should be excluded under s.137, and he determined he would not exclude it under s.137.
106 (DISCUSSION FOLLOWS & LUNCHEON ADJOURNMENT)
107 Although the trial judge found the evidence was also capable of use as coincidence and if it was sought to be relied on as such he would not have excluded it under s.101, he came to the view it was unnecessary to introduce it for such purpose once its direct relevance to establishing the accused’s state of mind was properly understood. Having ruled the evidence admissible on the basis he did, he directed the jury in terms approved by the Court of Appeal on the way in which it could be used as relevant to state of mind in respect of intention to cultivate a commercial quantity of cannabis in respect of the crop, the subject of the charge. He identified the differences between the 2003 conviction, cultivation of over 100 plants weighing only 6 kilograms in total and the 213 charge cultivation of 90 plants weighing 34 kilograms. He gave strong and clear directions, the jury could not reason he was guilty of the charge because he had previously committed a like offence.
108 As Weinberg JA made clear, ordinarily evidence of the previous misconduct of an accused, whether it is the commission of an unrelated offence or involves proof of an actual conviction for such an offence is inadmissible. This is so because he said as a matter of policy the law regards such evidence as dangerous and highly prejudicial. Although that is the starting point, in a succinct and helpful summary of relevant principles to be applied by trial judges, Weinberg JA set out the exceptions and the circumstances in which such evidence might be admissible.
109 Of particular relevance here in my view are the following matters. First, that although tendency and coincidence evidence are the most obvious example of exceptions to the exclusionary rule, not every case in which the Crown seeks to lead evidence of discreditable past acts on the part of the accused should be seen through the prism of tendency or coincidence. Of the examples listed by His Honour of non-tendency and non-coincidence use of evidence of previous misconduct, those of most relevance here are in my view evidence of prior exposure to the criminal law as relevant to the question of whether the accused has a particular state of mind or understanding which constitutes an element of the crime charged, or in rebuttal of a defence that is reasonably anticipated.
110 In Ivanoff the trial judge found, correctly, as the Court of Appeal held, that evidence of the accused's previous experience in the cultivation of cannabis bore directly upon his state of mind as regards to the size of the crop he was growing. This was so even though in 2003 the evidence in respect of commercial quantity was based on the number of plants (in excess of the threshold number of 100) and in 2013 it was based on the weight of the plants (in excess the threshold weight of 25 kilos). Justice Weinberg JA held,
“in my view His Honour's analysis of the basis upon which the evidence of the applicant's previous conviction was admissible was correct. The evidence was relevant, neither as tendency nor coincidence but because it went directly to the central issue in the trial, namely the applicant's state of mind.”
111 Hence the Court of Appeal found His Honour was correct in limiting its use in the way he did and in not permitting it to be used to support coincidence or tendency reasoning.
112 So far as the application of s.137 was concerned the Court of Appeal found no error in the approach by the trial judge. It found he had had regard to the competing factors and undertook the requisite balancing process, recognising that evidence of previous involvement in cultivating cannabis would be prejudicial but also recognising that it was "highly probative as regards the sole element in dispute in [the] trial".
113 In this case the issues are not as narrowly or precisely defined as they were in Ivanoff. The accused puts the prosecution to proof in respect of all elements relating to knowledge and state of mind or intent.
114 I am satisfied the circumstances which gave rise to the charges to which the accused ultimately pleaded guilty in 2004, are capable of supporting the inference the accused had previously manufactured methamphetamine at the same premises using the same type of equipment and method as that revealed by the clandestine laboratory found upon the execution of the warrant on this occasion. That is, it bears on the issue of whether the accused was knowingly in possession of the substances, equipment and material which the prosecution says constitutes the clandestine laboratory and was in possession with the intention of using those substances, equipment and material for the purposes of trafficking in methamphetamine. (Charge 8).
115 I am satisfied the evidence of finding of pseudoephedrine based tablets and empty blister packs for pseudoephedrine based tablets on the previous raid together with evidence capable of supporting an inference of previous manufacture of methamphetamine, is relevant to the issue of knowing possession and state of mind in respect of trafficking by reason of that knowing possession for the purpose of trafficking. (Charge 6 in respect of the pseudoephedrine).
116 I am satisfied that the evidence of the possession for sale of the methamphetamine found in Holt's possession on the day of the raid in 2001 in the circumstances of the finding of the clandestine laboratory, the pseudoephedrine and empty blister packs of pseudoephedrine based tablets and precursor chemicals is relevant to the issue of the knowing possession of the methamphetamine found concealed in the gas cylinder. (Charge 7) and in respect to the charge of possession of the amphetamine found on the day of the raid. (Charge 9).
117 Similarly, I am satisfied the evidence of the supply of the six ounces of methamphetamine to Hutchinson for delivery to the undercover Pat in 2001, again, in the context of the circumstances of the finding of the clandestine laboratory, the pseudoephedrine and empty blister packs of pseudoephedrine based tablets and precursor chemicals is relevant both to the state of mind and the physical acts, relevant to the trafficking to Young, the subject of Charge 2.
118 The fact the accused Holt was originally charged with trafficking in a commercial quantity of methamphetamine, although such a charge was not proceeded with upon the resolution of all charges by the entry of the plea of guilty to a charge of trafficking based on proof in respect of supply or possession for supply of the two quantities falling short of what was then a commercial quantity, is some evidence the accused was aware the quantity of drug trafficked bore upon the nature of the charge.
119 That, therefore, is capable of being relevant to the issue of the knowledge that the quantity of drugs said to be trafficked exceeded the threshold for a commercial quantity. That, therefore, is relevant to Charge 1. Similarly, I am satisfied the evidence the accused had previously possessed a number of long arm firearms and was charged with offences in relation to his possession of them, is capable of bearing on the question of knowing possession of the similar type of firearms found in his property – or in his bedroom at the property in 2014, and of the requirement that they should be registered. (Charges 10 to 13).
120 The accused has made no admissions in respect of any of those matters. He has not asserted any alternative position consistent with innocence. That is, of course in onus terms, no reasonable hypothesis consistent with innocence, the reasonable possibility of which would have to be excluded before a jury could infer he had the requisite knowledge, state of mind or intent has, at this stage, been raised. Of course, he is under no obligation to make any admission or reveal any defence.
121 However, to simply put the Crown to proof then puts the prosecution in a position where it must not only look to see what evidence is available which can fix the accused with the relevant knowledge or state of mind, or which is available for a jury to so consider it, but also, to anticipate and to seek to lead evidence in rebuttal of any defences which might reasonably be raised or be seen to be open. Such defences could reasonably include ignorance that the equipment and precursor chemicals and pseudoephedrine could be characterised as a clandestine laboratory, of the capability of the clandestine laboratory to be used for the manufacture of methamphetamine; ignorance of the method or process by which methamphetamine could be produced; and ignorance that the clandestine laboratory was used for the manufacture of methamphetamine.
122 Thus the reasoning in Ivanoff in my view extends in this case not only to the question of whether the accused has a particular state of mind or understanding as to whether the quantities of methamphetamine he dealt with amounted in aggregate to a commercial quantity. But also to all the elements relating to knowledge, belief or state of mind in respect to the charges, and to the physical acts relied on in respect of the trafficking to Young as well as in rebuttal of reasonably anticipated defences such as ignorance along the lines of those possibilities I have just outlined.
123 I am satisfied the evidence of the observations and findings at Steiglitz in 2001, of the clandestine laboratory, the pseudoephedrine, the empty blister packs, and the methamphetamine is also capable of being relied upon to support coincidence reasoning. However in light of the findings I have made in respect of the Ivanoff reasoning, I would not permit the prosecution to rely at this stage and in light of the defence as outlined, (or rather the absence of defences as outlined) on coincidence reasoning.
124 I have essentially confined my consideration in respect of the Ivanoff and coincidence reasoning to the drug related charges. For reasons I will outline later I consider that the firearms charges should be severed from the drug charges.
125 That then gives rise to a consideration of whether pursuant to s.137 the probative value of the evidence in respect of the observations of the clandestine laboratory set up, the finding of the methamphetamine, the pseudoephedrine based tablets and the empty blister packs at Steiglitz in 2001, and the agreed facts upon which the guilty plea to the charge of trafficking in methamphetamine was based in 2004, and the guilty plea itself is outweighed by the danger of unfair prejudice to the accused.
126 There is no doubt this evidence is prejudicial to the accused. As the analysis of the probative value of the evidence that I have just set out demonstrates, there is equally no doubt its probative value is high. It is high in itself but more particularly having regard to the manner which issue is drawn by the accused with the prosecution case in this trial.
127 Some of the matters relied on by Mr Jackson in support of the unfair prejudice to the accused flowing from the admission of the evidence, have since been remedied. At the time he made his submissions, the transcript of the committal was unavailable. It has since been found and provided to him.
128 Although the photographs taken in 2001 have not been found, the evidence logs are still in existence and they record the location of the items said to constitute the clandestine laboratory and the items used in connection with the manufacture of methamphetamine. In any event as Mr Jackson has made abundantly clear, no issue is taken either in respect of 2001 or 2014 with the evidence of the police as to what they saw, as to what was found or where it was found on either occasion. It is as to whether they support the inference of manufacturing or trafficking that is in issue.
129 As he acknowledged, the evidence is what it is. Whether the observations of what was seen on the day of the 2001 raid is put before the jury in this trial supported only by exhibit logs, or also by photographs, is not the point once it is the inferences in respect of manufacture or trafficking that are in issue is properly understood.
130 The presence or absence of photographs does not cause a risk of unfair prejudice in respect to the capacity of the evidence of the observations to support the inference the accused was engaged in 2001 in manufacture or trafficking. I do not consider there is any relevant forensic disadvantage by reason of lost evidence which would cause unfair prejudice to the accused let alone unfair prejudice which would outweigh the probative value of the evidence.
131 Mr Jackson's primary submission in respect to the unfair prejudice related to what he claimed was the unfairness of re-litigating the charges ultimately not proceeded with following the resolution of the charges in 2004. He submitted it was an affront to justice to seek to lead evidence of the observations in respect of the clandestine laboratory and for the accused to have to in effect defend a charge of manufacturing methamphetamine in 2001 in this trial.
132 As Mr Jackson acknowledged in argument the accused was not charged in 2001 and is not charged in 2014 with manufacturing methamphetamine. It is a strand of the prosecution case in both 2001 and 2014 that he was the operator of the clandestine laboratory and the manufacturer of the methamphetamine, the subject of the trafficking charges. The allegation the accused was engaged in manufacturing methamphetamine is a piece of circumstantial evidence relied on to support the trafficking and possession of the equipment and substances for the purposes of the trafficking charges. So understood it follows in my view that there is no attempt to re-litigate charges previously stayed. This does not in my view constitute a basis for a finding of unfair prejudice.
133 Next, Mr Jackson submitted was the prejudice flowing from the impact of the admission of the operation renegade evidence on the forensic decision as to whether to give evidence or not to give evidence in this trial. It is clear the admission of the evidence would expose the accused to questioning in respect of it were he to give evidence in this trial. I accept this would be a matter to be weighed in the balance when considering whether to give sworn evidence in this trial. That is always the case when evidence of other wrongdoing is placed before a jury. That is not in itself sufficient to render such evidence liable to exclusion. This is not a case where the evidence of past wrong doing is of a graver nature than the evidence in the instant trial. Nor is it one where there are particular features of the evidence of the past wrongdoing likely to inflame feelings or cause distress or revulsion which are not present in the evidence in relation to the current charges. I do not consider the forensic disadvantage is any different from any other case where evidence of similar past misconduct is sought to be led.
134 I also accept that there is potential prejudice flowing from the risk of revealing to the jury that the accused had been charged with other more serious offences than those to which he ultimately pleaded guilty in 2004. In particular, offences of the same nature as the charges in the current trial. I have already concluded that evidence the accused was previously charged with commercial quantity trafficking, is relevant to an issue in this trial, or the knowledge of the accused as to the distinction drawn by parliament between quantities for the purpose of charge and penalty in respect of trafficking.
135 It follows if the accused does face a forensic decision, which may be to his disadvantage in respect of the revelation of that charge it would, unless excluded under the s.137 already be in evidence as a result of the findings I have already made. He would however have to decide whether to place evidence before the jury he was previously charged with trafficking by reason of possession of pseudoephedrine. In my view, the potential prejudice flowing from the admission of that evidence, if the accused chose to adduce it, is capable of being addressed by strong and clear directions as to the manner in which such evidence can and cannot be used. Clearly, the fact a person has been charged is not proof of their guilt of that charge. That is a standard direction given in every trial and can be specifically applied to this 2001 charges which were not proceeded with.
136 I accept Mr Jackson's submission there is a real risk the jury might reason that as the accused had offended in 2001, in the manner revealed by his 2004 guilty pleas, so he must be guilty of the 2014 charges. I also accept there is a real risk the jury might consider that he got off lightly in 2001 and seek to redress any injustice flowing from that by convicting him of the 2014 charges, regardless of their view of the strength of the evidence in respect of them. However, that is a matter routinely dealt with by direction and there is nothing in the circumstances of this case to suggest a jury would not follow such direction.
137 So far as the risk of misuse of the 2001 evidence by the jury for coincidence or propensity purposes are concerned, again, those are matters routinely dealt with in cases where uncharged acts or other discreditable conduct, admissible by reason of the nature of the trial is adduced by strong and clear directions as to the manner in which the evidence is to be used and if requested is not to be used. The directions given by the trial Judge in Ivanoff and quoted at length in the decision of the Court of Appeal provide a very good example of that.
138 In my view none of the matters identified by Mr Jackson alone or in combination do not create a risk of unfair prejudice which outweighs the probative value of the evidence. As I have found, the probative value of the evidence is high.
139 For similar reasons, were the evidence to be relied on to support coincidence reasoning, I would be satisfied the probative value of the evidence substantially outweighed any prejudicial effect it may have on the accused.
140 The application to rely on the evidence identified by the prosecution and set out in the chart in these reasons in respect of the 2001 raid and charges, and the 2004 plea of guilty in resolution of those charges so far as it relates to the drug charges, is evidence relevant to the state of mind and intention and knowledge in respect of the drug charges and the application to admit the evidence on that basis, is granted. The application to exclude it is refused. The application at this stage to rely on the evidence as coincidence evidence, is refused.
141 I acknowledge this last matter may need to be revisited depending on what is raised by the defence in the course of the trial. That is, if matters not disclosed in the defence response or the submission to date raise the possibility of coincidence reasoning in rebuttal of defences raised.
Application to exclude third party conversation.
142 As part of the prosecution case, the prosecution relies on a number, approximately 40, of intercepted telephone conversations between the accused Holt and the accused Young which it says, relate to the placing of orders by Young with Holt for methamphetamine to be supplied by Holt.
143 The prosecution also relies on a much larger number of intercepted telephone conversations between the accused Young and other people said to be those to whom Young was supplying the methamphetamine supplied to him by Holt. It is the prosecution case, that when the sequence of calls between Young and Holt and Young and the third parties is analysed, it can be seen that Young is collecting orders from his customers which he then aggregates and places with Holt who then fills them on his regular visits to Melbourne for his Tuesday lunches and Friday dinners with Holt and others.
144 It is the prosecution case that the amounts ordered by Young from Holt correlate to the amounts of the orders placed with Young by those to whom he was on-supplying.
145 Mr Jackson submits that the third party conversations, that is, those between Young and those to whom he is said to be supplying the methamphetamine provided to him by Holt, should not be used as evidence against Holt. It was, as I understood Mr Jackson's submissions, accepted such conversations were admissible as against Holt.
146 Indeed, Mr Jackson acknowledged his familiarity with the case of Tsang v The Queen [2011] VSCA 336, on which the prosecution relied. Mr Jackson told me he had represented Mr Tsang at trial, although not before the Court of Appeal. In particular, he did not take issue with the prosecution reliance on the third party calls as circumstantial evidence tending to prove a fact in issue in the trial, namely, the supply of methamphetamine to Young in accordance with the orders he received, then aggregated and placed with Holt.
147 This is in accordance with the first basis of admissibility of third party calls identified by the court in Tsang at [35–7].
148 Again, the submission was directed more to the risk of unfair prejudice. First, the number of third party calls substantially outweighs the number of calls between Holt and Young. There is therefore, Mr Jackson submitted, a risk that they would assume a disproportionate prominence. Secondly, Mr Jackson submitted, there was an unfairness to the accused flowing from the content of the calls as he was limited in his ability to cross-examine about the third party calls, given that he was not a party to them.
149 It is the prosecution case, that a code was used between Holt and Young and also between Young and the third parties in an attempt to disguise the fact that they were speaking about the supply of methamphetamine. The prosecution seeks to lead evidence from one of the investigating police as to his opinion that certain words in the conversations, both between Holt and Young and Young and the third parties, are code for substance and quantity, and what he understands the code to mean.
150 That evidence is acknowledged by Mr Jackson to be relevant and admissible and the decision as to whether to accept the evidence of the attribution of “real meaning” to the code, properly a matter for a jury.
151 It is however, he argued, unfair to Mr Holt to have coded calls which are subject to interpretation and to which Mr Holt is not a party relied upon. His ability to cross-examine or make submissions about innocent interpretations of what was said to be the code, or what was said the code really meant is limited. So far as his own client is concerned, he can obtain instructions from him as to what he says he meant when the words said to be code words were used. But he is clearly unable to do so in respect of the use of code by Mr Young or the third parties. He is unable to obtain instructions from Mr Young or the third parties about that.
152 I accept that is a disadvantage to the accused, but I do not consider it to be of such a nature, quality or gravity as to lead me to find that the probative value of the evidence of those third party calls is outweighed by the danger of unfair prejudice to the accused. Ultimately, it is not so much a matter for cross-examination of the police officer, as it is for the parties to make their arguments and for the jury to make what they will of the pattern of what is said to be use of code discerned from the conversations.
153 The unfairness flowing from the inability to obtain instructions from Mr Young or the third parties is properly a matter to be identified and argued to the jury, and if requested, the subject of direction.
154 On the face of it, there is force to the submission that the number of third party calls would assume a disproportionate significance. But Mr Regan submitted that that was not so, as the calls were properly able to be clustered, first by date, that is, in the lead up to each particular Tuesday lunch or Friday dinner where it was alleged a precise amount of methamphetamine matching the total amount ordered by Young's customers for supply on that occasion, and secondly, by customer.
155 Thus, the prosecution submitted, the calls when clustered that way, revealed a pattern of the collecting of orders by Young in the lead up to each Tuesday lunch or Friday dinner, and the placing of the aggregated order with Holt by Young by Monday for the Tuesday lunches or Thursday night or Friday morning for the Friday dinners. Once that is understood, and the prosecution has outlined how it proposes to lead the calls in clusters to make that clear, the risk of unfair prejudice from the weight of numbers is, in my view, dissipated.
156 So far as code is concerned, I also accept the prosecution argument that the code evidence is strengthened by the repetition by this limited number of men repeatedly using what are, on the prosecution case, the code words. And that the probative value of that, in combination with what is said to be the pattern of placing orders, renders the evidence of the third party calls of potentially high probative value. I consider the probative value of the calls significantly outweighs the danger of unfair prejudice.
157 The application to exclude reliance on the third party calls as against the accused Holt, is refused.
Application to exclude answers from the recorded interview.
158 The accused Holt when arrested in Geelong, was told that he was under arrest for drug trafficking. He was cautioned and told his rights. He indicated he wished to contact his daughter and solicitor. He was then taken to the property at Steiglitz and cautioned again.
159 He said that he had spoken to his daughter and his solicitor, and his solicitor had told him not to say anything. He was then taken to Geelong Police Station where the formal recorded interview was commenced. Again, he was told he was under arrest for drug trafficking, that police intended to question him in relation to that, cautioned and told his rights. He again confirmed that he had contacted his daughter and his solicitor.
160 He said in response to questions 29 and 30 that the solicitor had told him not to make any comment until the solicitor had seen him in person, and he added, "I'd be silly not to take his advice." The interview continued with the accused giving responsive answers to questions about whose house he was at when arrested, about ownership of the cars found at the Steiglitz property, and the contents of the bag in his possession at the time of his arrest in Geelong. He was then asked questions about a sum of money found in his wallet in the bag.
161 After confirming there was what he thought was about $900 in his wallet, he said, "No you are going to get into an area here which I've been told not to go into." He was then asked, "So you don't want to answer any questions in relation to that?" And he said, "No I've been told not to." The response to that was, "Yeah that's fine, no dramas, all right."
162 It was following that that the accused was asked and answered a number of questions relating to his occupancy of the property at Steiglitz. It is those questions and answers which the prosecution wishes to lead and which the defence objects to. In particular the prosecution seeks to lead the sequence at 107-108, namely, "The place at Steiglitz, you obviously reside there?" "Yes." "You call it home?" "Yes."
163 There is then a sequence of questions about a set of keys which the accused acknowledged to be his and which contained amongst other things keys to the Steiglitz property. Again there were responsive answers given to those. Following that set of questions about the keys is the following sequence the prosecution wishes to lead. Question 128 through to 134, "Does anyone else live at that house with you in Steiglitz?" "No." "Anyone else use it?" "No." "From time to time or?" "No." "Anything like that? So would there be any reason for anything belonging to anyone else to be found at your place?" Answer, "Well once again you're going - that's delving into an area where I've been told not to go." "All right no dramas, just bear with me a tick."
164 As I understand it the prosecution seeks to lead the responses to the question about nobody else living at the house at Steiglitz or using it from time to time. To all of those the accused gave responsive answers. However to the question as to whether there would be any reason for anything belonging to anything else to be at the place, the accused clearly at that stage exercised his right not to answer that question. As I understand it the prosecution does not seek to lead that.
165 There is a further passage that as I understand it the prosecution seeks to lead. Shortly after that exchange the interview was suspended and later resumed. Upon resumption there was a further caution given to the accused and immediately following that further caution, the following passage from Questions 181 through to 189 occur.
166 "Just to pick up where we left off. So when I suspended the interview I'd just asked you in relation to your house, it's your house, is that correct?" "No." "Whose house is it?" "It belongs to my daughter." "Belongs to your daughter?" "M'mm." "Okay, who lives there?" "I do." "Okay and does your daughter live there at all?" "No." "Or use the place?" "No." "At all?" "No, no, no, she." "All right, anyone else use the place at all?" "No." "All right, have you had any visitors up there recently or anything like that?" "Not recently, no."
167 Mr Jackson acknowledges the accused gave those answers but submits they should be excluded because he had made it clear from the start that he wished to obtain legal advice and then having obtained legal advice said he had been advised not to answer questions and made it clear he intended to follow that advice. It is he submits, in those circumstances unfair to use those answers against him.
168 This application is governed by s.90 of the Evidence Act. By s.90 the court may refuse to admit evidence of an admission or refuse to admit evidence to prove a particular fact if it is sought to be adduced by the prosecution and having regard to the circumstance in which it was made it would be unfair to an accused to use that evidence.
169 This is not a case where it is allege the accused's will was overborne. It is not alleged there has been any violent, oppressive, inhuman or degrading conduct or threat of conduct of that kind which would bring into play s.84 of the Act. Nor is it a case to which s.85 applies. This is not a case where there has been any conduct on the part of an investigating official where it is said the nature of the questions or the manner in which they were put, or the nature of any threat, promise or other inducement made to the accused could have overborne his will or induced an untruthful admission.
170 The accused was told of his rights and cautioned upon his initial arrest in Geelong, again at the property at Steiglitz, again upon the commencement of the recorded interview at the police station and on its recommencement. He showed by his responses on each occasion that he understood those rights and intended to exercise them and act in accordance with the advice that he had been given.
171 It is clear that he was making conscious choices throughout the interview to answer questions on some topics and to decline to answer questions in accordance with the advice that he had received from his solicitor in respect of other topics. It is also clear that as soon as he indicated he did not wish to answer questions about a particular topic, the police did not persist.
172 In those circumstances the inescapable inference is that the accused was aware of his rights and made conscious choices as to whether to answer or to decline to answer individual questions about particular topics. The only unfairness that could be said flows to the accused comes from the potential evidentiary value they have. That is not a relevant unfairness. The application to exclude the evidence of those questions and answers is therefore refused.
Application to sever the firearms' charges.
173 In the course of the execution of the search warrant, five firearms were found in the main bedroom of the property. Four of those were unregistered. The fifth was as I understand it, registered but stolen. Whatever the circumstances, in respect of the fifth the charge relating to it is a summary charge and therefore not on the indictment.
174 The indictment contains four charges of possession of unregistered firearms. It is acknowledged that they are properly joined on the indictment in accordance with the Criminal Procedure Act. However Mr Jackson submitted that although properly joined, they should be severed as there was a real risk of prejudice to the accused in respect of the drugs charges by reason of the jury hearing evidence of possession of firearms.
175 This was not a case he submitted, where possession of the firearms was seen to be connected with the drug activity the subject of the other charges. It was not a case where for example the accused was found in a car transporting drugs and had a loaded gun with him. The guns were kept separately from where the clandestine laboratory, the precursor chemicals and the pseudoephedrine were kept. They were kept as I understand it in a separate room from the gas cylinder where the quantity of methamphetamine found on the premises was contained.
176 In my view there is force to Mr Jackson's argument. There is a real risk of prejudice to the accused in respect of the drug charges, if the jury hears the accused was in possession of four firearms which were unregistered, and in circumstances where there is no connection on the Crown case between the possession of the firearms and the drug activity alleged. Similarly there is a real risk of prejudice to the accused in respect of the firearms charges if a jury hears the accused is also charged with drug related offences. The application to sever the firearms' charges is therefore granted.
Application to exclude evidence of the finding of methamphetamine in the gas cylinders seized at the Steiglitz property.
177 On the day of the raid, a gas cylinder was found at the property and taken into police custody pursuant to the search warrant. Sometime later it was examined and a concealed compartment was found accessible through a cleverly constructed and well concealed removable base.
178 Once the removable base had been removed the 138 grams of methamphetamine, the subject of Charge 7 (and relied on as part of the subject of Charge 1) was found. Mr Jackson submitted there was a break in the chain of continuity, that the prosecution could not exclude the reasonable possibility that the methamphetamine had been planted, either by substituting the false bottomed cylinder with the methamphetamine concealed in it for the cylinder taken from the property or by putting the methamphetamine into the concealed compartment after the cylinder had been removed from the Steiglitz property. He submitted therefore the evidence of the finding of the methamphetamine in the cylinder was not admissible. In the alternative he submitted the danger of unfair prejudice outweighs the probative value of the evidence and it should be excluded.
179 The prosecution case is that the cylinder was found in the lounge room of the house logged by the property officer and kept thereafter under police guard at the house until a representative of a company called Toxfree collected it that evening. The evidence is that it was consigned to Toxfree because it was thought to contain ammonia gas. Amonia is a volatile gas and Vic Pol protocols require anything thought to contain ammonia gas to be collected by Toxfree, a contractor retained for that purpose to be stored, tested and if found to contain ammonia to be rendered safe. I have now heard from three Toxfree employees and been directed to evidence in the hand up brief in relation to the finding of the cylinder, its custody until it was collected by Toxfree, its custody once collected from Toxfree and up until the time the concealed compartment was found.
180 I am satisfied that the evidence of the finding of the cylinder and of the finding of the methamphetamine in the cylinder after its removal from the property is admissible under s.55, and that notwithstanding the attacks that may be made on the continuity, that no basis to render it inadmissible under s.55 or to exclude it has been made out.
181 Whether a jury would ultimately be satisfied that the only reasonable inference to be drawn is that the cylinder seen in the lounge room and logged by the property officer is the one that was later inspected and found to have a secret compartment and that the methamphetamine was in the concealed compartment of the cylinder at the time it was seized from the lounge room at Steiglitz is in my view a classic jury question. Because the evidence and submissions in respect of this only concluded this morning, I have not yet prepared full reasons but will provide them if requested in due course.
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182 I delivered short oral reasons on 11 April holding the evidence of the finding of the methamphetamine the subject of charge 7 (and part of the quantity relied on for charge 1) was admissible, and refusing the exclude it on the ground the risk of unfair prejudice outweighed the probative value of the evidence.
183 These are my expanded, written reasons.
184 On the prosecution case, a gas cylinder was found in the lounge room of the property at Steiglitz during the execution of the search warrant. It was logged by the property officer, given a number and photographed. The investigating police suspected the cylinder contained ammonia gas. Victoria police protocols concerning the handling of potentially hazardous materials require items suspected of containing ammonia gas to be collected by, stored and examined by a company called Tox free.
185 The cylinder remained at the property under police supervision until it was collected later that evening by a Mr Nurhussen, a Tox free driver. He gave evidence he placed it in a drum on a pallet in the back of a company ute, and drove it to the Tox free depot at Laverton. The ute, containing the drum was left in the locked yard overnight, and the following day it was loaded onto a large truck and and driven by another Tox free driver, Mr Celentano, to Tox free’s Campbellfield premises. There it was unloaded and placed in a secure storage cage used for the storage of items collected by Tox free under Victoria police direction. Mr Lawrence, the then operations manager of Tox free supervised the unloading of the drum and its placement in the secure storage cage. He gave evidence there was only one key to the storage cage and only he and one other person had access to it.
186 Mr Lawrence gave evidence it remained there for some weeks until he removed the cylinder from the drum and examined. It did not contain ammonia, appeared to be empty of gas, but weighed more than an empty cylinder should. He said he noticed when he first handled it it made a noise as if there was something inside it.
187 The prosecution case further is that on 1 April 2014 police took the cylinder to another company called Origin, where the valve was removed and it was confirmed there was no gas of any sort inside it. They then took it to the police forensic laboratory at McLeod where it was examined. It was then discovered the cylinder had been modified, and had a removable base which was barely detectable. When the base was removed, a concealed compartment was exposed. In it, surrounded by wadding, was an envelope containing, in 3 separate plastic bags, the methamphetamine the subject of charge 7.
188 Mr Jackson submits there is a break in the chain of continuity in respect of the gas cylinder between the time was taken from the Steiglitz premises by the first Tox free driver, and the time it was retrieved by the police on 1 April 2014. He submitted that the prosecution cannot exclude the reasonable possibility the methamphetamine had been planted, either by substituting the modified cylinder with methamphetamine concealed in it for the cylinder taken from the property, or by putting the methamphetamine into the concealed compartment of the modified cylinder after it had been removed from the Steiglitz property .
189 He submitted that as a result evidence of the finding of the methamphetamine in the cylinder ought be excluded, either because the evidence failed the test of relevance under section 55, or alternatively if found to be relevant, on the basis the danger of unfair prejudice outweighed the probative value of the evidence.
190 The evidence was not relevant he submitted because of the break in the chain of continuity. He submitted that if that if the crown could not exclude the reasonable possibility that there had been opportunity for an alteration in the state of the item between the time it was picked up from the property at Steiglitz to the time it was examined then the evidence was not admissible.
191 In my view the evidence is admissible. If accepted it establishes the presence of the methamphetamine subject of charge 7 concealed in a gas bottle found beside the sofa (in a place one would more commonly see a side table) in the lounge room of the house of which the accused was the sole occupant.
192 There are challenges that can be made to the evidence in relation to the collection and storage of the gas cylinder between the time and let the property at Steiglitz and the time it was examined on 1 April 2014. Although there was evidence of continuity in respect to the labelling and marking of the cylinder, Mr Jackson argued there were gaps in continuity.
193 Mr Nurhussen gave evidence he was asked to collect a gas cylinder, and that he placed it in a drum and took it to the Laverton depot. Mr Lawrence gave evidence that the business records of Tox free showed there was a request for the collection of 3 gas cylinders from the Steiglitz property. He said he was unable to recall whether the drum contained one or 3 cylinders when he examined it after delivery to the Campbellfield premises.
194 Mr Lawrence said he noticed an unusual sound in the gas bottle, as if there were something inside it, as soon as he picked it up. There is no evidence the police who had taken possession of the gas bottle at Steiglitz, or Mr Nurhussen who lifted it onto the back of the usual and then into the drum had noticed any sound.
195 The ute containing the drum into which the cylinder had been placed was left in the yard of the Laverton depot overnight. There was opportunity, Mr Jackson argued for somebody to have scaled the fence and obtained access to the cylinder between the time Mr Nurhussein left the ute there and the depot reopened for business the following morning.
196 Similarly, he argued, the absence of CCTV footage, and other evidence of the state of security of the premises, left open an opportunity (which could not be excluded) the drum or the cylinder had been interfered with whilst it was in the storage cage at the Campbellfield premises.
197 Mr Reagan argued that there was no gap in the chain of custody, or no discontinuity as he put it. It was not necessary he submitted for the prosecution to have to exclude the possibility the cylinder could have been interfered with before the evidence of the finding of the methamphetamine in it was admissible.
198 I agree. It would be open to a jury to accept the evidence in respect of the custody of the gas cylinder from the time it was removed from Steiglitz until the time is returned to police custody on 1 April 2014 as capable of supporting the inference that it had not been interfered with during that time. Whether a jury could exclude as a reasonable possibility on the evidence that the cylinder had been interfered with, so as to come to that finding is in my view a classic jury question.
199 Mr Jackson argued if I found the evidence to be relevant under section 55 that I should excluded under section 137.
200 The probative value of the evidence is clearly very high. If accepted it is evidence of the finding of the methamphetamine the subject of charge 7. The evidence of the concealed compartment in the gas bottle, of the fact the methamphetamine was found concealed in that compartment, which was otherwise packed out with plastic and fabric, and the evidence of the keeping of the gas bottle by the sofa in the accused’s lounge room is all evidence capable of pointing to knowledge by the accused of the substance concealed in the gas bottle.
201 Mr Jackson submitted there was unfair prejudice was because there was no possibility for the accused to investigate the provenance of the cylinder from the time it was taken from the Steiglitz premises until the drum was opened by Mr Lawrence and inspected shortly before the cylinder was returned to the police.
202 I do not consider that constitutes an unfair prejudice. Any forensic disadvantage the accused suffers by reason of the inability, now, to “investigate the provenance” of the cylinder can be identified, relied on in argument, and, if appropriate, be the subject of direction.
203 The application to exclude the evidence of the finding of the methamphetamine is rejected.
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