Director of Public Prosecutions v Vyater (Ruling No 2)
[2018] VCC 2070
•12 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00302
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| v | |
| YAN VYATER | Defendant |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29, 30, 31 October 2018 & | |
DATE OF RULING: | 12 December 2018 | |
CASE MAY BE CITED AS: | DPP v Vyater (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2070 | |
RULING
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Subject: CRIMINAL LAW
Catchwords: Admissibility of DNA evidence – DNA likelihood ratios – no case submission
Legislation Cited: Evidence Act 2008, s137, s138, s139; Jury Directions Act 2015, s61; Crimes Act 1958, s464A; Drugs Poisons and Controlled Substances Act 1981
Cases Cited:R v Guingab (Ruling) [2010] VSC 256; R v Hillier and Reilly (2015) SADC 77; R v Holman [1982] VR 471
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr Y Hardjadibrata | Office of Public Prosecutions |
| For the Defendant | Mr L Richter | Slades & Parsons Solicitors |
HIS HONOUR:
Ruling number two: Admissibility of DNA evidence
1 During the prosecution case Counsel for the accused applied to exclude a DNA profile and likelihood ratio evidence pursuant to s.137 of the Evidence Act 2008. The DNA sample in dispute was found on the inside of the left glove of a pair of red chemical gloves. The glove is depicted in photograph 82 of Exhibit C and described in item 28 of Exhibit E. The glove was found on level one of Unit 45A of 145 Industrial Drive Braeside in a closed plastic tub situated on the floor in front of shelving. The right glove was not tested for DNA.
2 In her reports tendered as Exhibits A and B on the voir dire and in evidence, Ms Janelle Heffernan, a Forensic Officer at the Victoria Police Forensic Services Centre, expressed the view that the DNA sample found in the left glove comprised a ‘partial mixed DNA profile’[1] from ‘three contributors’[2]. As to the likelihood ratio, Ms Heffernan opined that it is 26 times more likely that the accused was a contributor to the DNA profile than if it originated from a randomly selected person from the Australian Caucasian population.[3] Ms Heffernan accepted that the DNA profile was a low level profile with a verbal equivalent of providing moderate support.[4]
[1]T337, L4
[2]T337, L6
[3]T346, L5-10
[4]T345, L26
3 During cross examination, Ms Heffernan accepted the proposition that her calculation of three contributors to the DNA profile was underpinned by the assumption that a minimum of three profiles are required to produce a sample.[5] She further accepted that her likelihood ratio calculation was based on the assumption that there were three contributors to the sample. Ms Heffernan conceded that her likelihood ratio figures could be different if there were four contributors. Ms Heffernan accepted that three DNA profiles were sufficient to account for all of the DNA information obtained and that she would have no idea if there was a fourth contributor.[6]
[5]T343, L14-15
[6]T343
4 Counsel for the prosecution submitted that the DNA evidence ought to be admitted on the basis that it is probative in that it advances the prosecution case because it was found amongst other items at the unit, including laboratory items (two of which had the fingerprint of the accused on them), substances and literature which are connected to the manufacture of methamphetamine. Counsel for the prosecution argued that the jury can evaluate the limitations of the DNA evidence and its value relative to the numerous other pieces of circumstantial evidence which link the accused with the offences.
5 In contrast, Counsel for the accused submitted that the DNA evidence ought to be excluded for two reasons:
(i) Ms Heffernan’s assumption about how many contributors there were to the DNA sample; and
(ii) the prejudicial effect of the low likelihood ratio and the CSI effect.
6 Counsel for the accused argued that admission of the DNA evidence would unfairly prejudice the accused on the basis that the jury might be ‘blinded by the science’ and simply accept the DNA evidence without proper consideration of the low likelihood ratio. Counsel submitted that the concerns articulated by J Forrest J in R v Guingab (Ruling) [2010] VSC 256 at [64] and [65] applied to this case:
“[64] I consider there is a real risk of unfair prejudice to the accused if this evidence is permitted to be adduced.
(a)This is evidence that is capable of placing the accused at the scene of the disposal of the body. This of course is detrimental to the defence case but is not per se unfair.
(b)I consider that the likelihood ratios expressed and the qualifications that must be placed upon them are such as to moderate the probative value of the evidence very substantially.
(c)I consider there is a real danger that a jury would use this evidence to prove more than it does. DNA evidence is no longer novel.[7] It is well accepted as a legitimate and reliable scientific aid to criminal investigation. The danger in this case is that the jury will ignore the very low likelihood ratios and the fact that they are expressed on the contingency that the underlying assumption of only two contributors is correct, and then proceed on the basis that it is absolute proof that the accused bound up the body of the deceased with rope. In the crude language of the racetrack, on one view, there is a thirty seven to one chance that this is not the accused’s DNA at all and even those odds are expressed on the contingency that there are no more than two contributors and to a certainty of 99%. In the DNA context Likelihood Ratios are usually expressed in the millions if not billions.
[65] I do not consider that this danger can be adequately addressed by direction.”
[7]In the sense that it was at the time of R v Lucas [1992] VR 109
7 Counsel for the prosecution argued that Guingab is distinguishable from the present case as there were fewer pieces of circumstantial evidence in that case. I agree. Here, as I have indicated, this particular item of evidence is only a small part of the circumstantial case mounted by the prosecution, that it was the accused who was occupying the unit and engaged in the manufacturing of the methylamphetamine. Under s 61 of the Jury Directions Act 2015 the trial judge is only required to direct the jury that it is the elements of the offence that must be proved beyond reasonable doubt. It follows from this that a piece of circumstantial evidence, such as the DNA evidence in relation to the left glove, does not need to be proved beyond reasonable doubt as part of the overall circumstantial case. In the case of R v Hillier and Reilly (2015) SADC 77 the trial judge allowed DNA evidence establishing a likelihood ratio of two to be admitted, along with other DNA evidence providing extremely strong support. Similar reasoning can apply here where other DNA evidence on the respirators provided extremely strong support that the accused was a contributor to the DNA found.
8 This illustrates how important it is in a circumstantial case that each individual item of evidence must be considered within the whole of the evidentiary matrix. On this basis I was satisfied that the evidence had some probative value.
9 The unfairness which may arise in the use of DNA evidence is the danger that the jury will adopt an illegitimate form of reasoning or misjudgement in the weight to be given to the particular evidence. I was satisfied in this case that it could be addressed by the directions to be given as to the use of that evidence. The mere fact that the probability ratio is low, does not mean that the evidence must necessarily be excluded as being unduly prejudicial.
10 I directed the parties to Manoharan v R,[8] a decision of the Court of Appeal of New Zealand, in which DNA evidence with a likelihood ratio of 20 was admitted into evidence by the trial judge. That DNA evidence provided “moderate scientific support” for the proposition that the DNA originated from the accused in that case. On appeal it was held that any risk of a miscarriage of justice given the low likelihood ratio, compared with the sorts of ratios that juries often hear, was sufficiently mitigated by the trial judge’s directions and by concessions obtained from the expert witness.
[8]CA5/2013 [2015] NZCA 237
11 Here the limitations of the evidence could be addressed in final directions and although the probability ratio is low, in circumstances where this was only one part of the circumstantial case linking the accused with the drug laboratory, then the risk of unfair prejudice does not outweigh the probative value of the evidence. Further, I am satisfied that with appropriate directions any risk that the jury will overemphasise the low likelihood DNA evidence relating to the glove will be minimised. In fact the contrast between the low likelihood ratio in relation to the glove and the very much higher ratio in relation to the respirators will make it easier to emphasise that this particular part or strand of the circumstantial case is weaker than other parts, and that the whole case including all the items of evidence relied on must be considered before any relevant inferences are drawn.
12 For all those reasons I allowed the DNA evidence to be led.
Ruling number three: Admissibility of downloaded drug related material
13 The prosecution opened to the jury that the accused’s Samsung mobile phone had been forwarded to the E-crime department and 16,000 pages of material had been downloaded. The learned Crown prosecutor sought to elicit some of the material to show the accused’s interest in drugs and material relating to manufacturing of drugs. On day seven of the trial, the informant Detective Powley commenced giving evidence on the downloaded material. He was taken through a number of different items as to manufacturing, articles as to yield, a “Crime Stoppers” press release, a document in relation to a vacuum drying oven, a document relating to the Duran group, a document titled “Container Examination Facility Detection”, and a document headed “Flammability Evaluation.” At that point the jury were not provided with any of the original documents. The documents included various methods of making methylamphetamine, including alternative input material.
14 Objection was then taken by defence counsel on the basis that prejudicial material had been provided to the jury, which went far wider than the basis upon which the prosecution sought to rely, and on that basis the jury should be discharged. It was put that the evidence was superfluous as Mr Mitchell, the chemist, had already given evidence that he had perused the documents and indicated that they do contain advice as to how to manufacture methylamphetamine. It was put that the jury would wildly speculate as to the circumstances in which this material was on the phone of the accused man, and thus any probative value was far outweighed by its prejudicial effect.
15 In the alternative it was submitted that if the documents were to be provided to the jury then they should be in much more limited form or otherwise the jury would engage in a scientific evaluation and their own research.
16 I accepted the prosecution submission that there was no high degree of need to discharge the jury. While some irrelevant material had been referred to, in the context of the volume of material already before them, this would not provide a proper basis for a discharge. Rather, after discussion between the prosecution and the defence, at my suggestion, a series of the first pages of some of the most relevant documents were provided to the jury in Exhibit K.
17 In addition, after discussion with the parties, I formulated an appropriate context evidence direction to be given to the jury as to how they were to deal with that material, including that the jury was not to speculate and there was no evidence as to the extent to which the material had actually been viewed.
18 I was satisfied in the context of the trial that the accused man was not unduly prejudiced, and that the material sought to be extracted from the downloaded material was relevant to the prosecution case as a circumstantial fact supporting its case as to the accused man, whose occupation was a plumber, having an interest in methylamphetamine manufacture, and/or an ability to access that information.
19 As events unfolded the accused gave evidence as to how the material came to be on his phone, which meant he was able to put his own version of the circumstances in which he had access to the material before the jury.
20 A further aspect of this jury discharge application was that defence counsel had observed two members of the jury nodding off at times. I indicated that I had observed one member of the jury from time to time appearing to be asleep. When that occurred I would then call for a break. I was satisfied that the periods of time that any juror happened to be “resting their eyelids” was relatively short and that thereafter the jurors appeared fully engaged in the trial. I was satisfied that there was no high degree of need to discharge the jury on that basis.
Ruling number four: Inadmissibility of answer to police question regarding address in record of interview
21 Before the evidence was led, defence counsel objected to proposed evidence to be led from the informant to the effect that before the accused indicated to police that he wished to make a “no comment” record of interview, he was asked in a video recorded interview, his name and address and he answered with his name and the address of 45A Industrial Drive Braeside, which is where the prosecution alleges that the accused was residing and was involved in methylamphetamine manufacture.
22 Defence counsel submitted that the evidence should be excluded on the basis that the question infringed the accused’s right to silence, and its admission was contrary to section 139 of the Evidence Act.
23 In response, the learned Crown prosecutor denied that the proposed evidence infringed the right to silence or was contrary to the Evidence Act.
24 I ruled that the evidence was lawfully obtained and ought not be excluded in the exercise of discretion. I further indicated that if there was any illegality or impropriety associated with obtaining the evidence then I would exercise my discretion in favour of admitting the evidence as its probative value outweighed any unfair prejudice or any alleged impropriety.
Consideration
25 The informant gave evidence that when the police at around 6:30am on 15 August 2016 arrested the accused along with his girlfriend at the unit, the accused was given his rights by the arresting police officer. That evidence was not challenged. Thereafter the accused remained in police custody until around 7:30 PM in the early evening, when at the Moorabbin police station the informant and his corroborator commenced a video recorded record of interview with a question as to his name and address. Thereafter the accused was advised of his rights and indicated that he wished to make a “no comment” record of interview.
26 The structure of section 464A of the Crimes Act 1958 is that it imposes an obligation for a person taken into custody to be either released unconditionally, bailed or brought before a bail justice or a court “within a reasonable time of being taken into custody.” Under subsection (2) where the person is suspected of having committed an offence is in custody for that offence, the police officer may, within the reasonable time:
“(a) inform the person of the circumstances of that offence; and
(b) question the personal or carry out investigations in which the person participates in order to determine the involvement (if any) of the person that offence.”
27 Subsection (3) provides:
“Before any questioning (other than a request for the person’s name and address) or investigation under subsection (2) commences, and investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.”
(Emphasis supplied)
28 These provisions appear to differentiate “questioning” and “investigation” in the structure. The first clause of subsection (3) appears to grant authority to the police to request the name and address of a person in custody. It is only after that question that the suspect must be given his or her right to silence. Here, on the evidence of police officer Lamb, the accused was told by officer Kerr upon arrest, that anything he said or did could be given in evidence. Thereafter until a reasonable time had elapsed, the accused was a person in custody who had not been questioned. I was unable to find that the initial question, recorded on the video of the record of interview, was in breach of these provisions of the Crimes Act, or of the accused’s right to silence, given the evidence, unchallenged, that he had been accorded his right to silence earlier in the day.
29 Defence counsel had a second submission that under section 139 of the UEA, the statement of the accused’s address had been unlawfully obtained on the basis that he had not been properly cautioned.
30 As a further submission defence counsel argued that the statement was inadmissible under section 139 of the Evidence Act, as the evidence had been obtained improperly or in contravention of an Australian law under section 138(1)(a).
31 The argument was that seeking to lead the evidence trespassed on the accused’s right to silence. The basis for this was that the accused had been woken at 6:30am and he had been sitting around possibly in a police cell for 13 hours until he was then questioned and he gave his name and address.
32 I ruled that the name and address were admissible. It was not disputed that the accused had been cautioned when first arrested. Given that he had remained in police custody while the police searched and photographed the premises and arranged for the material to be transferred back to the station, then I don’t accept that the police were required before commencing a formal investigation by way of a record of interview to again caution him before even asking his name and address. The admission that his address was the location of the unit where the manufacturing was being undertaken was significant. However, it was only one of a number of different pieces of evidence that pointed to the accused actually living at that address. Thus the evidence was of some probative value in the context of the overall circumstantial case. No particular matter was put which would suggest that the answer given was involuntary or coerced or that the accused had, before the formal interview commenced, asserted his intention to remain silent.
33 Weighed against this, under section 138 of the Act, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. First, the prejudicial impact is outweighed by the probative value. It is difficult to see how the evidence would be unduly prejudicial. It was one of a number of items linking the accused to the location, and it is difficult to see why the particular admission recorded by the police as to his address would be accorded excessive weight in the overall context of the evidence linking the accused to those premises. Further, as I indicated, it is difficult to see any impropriety given the unchallenged evidence of the caution administered when he was first arrested. It was not suggested that he did not understand the caution. When the accused was interviewed he was in a position to and did exercise his right to silence after he was again advised of his right to silence. Defence counsel was unable to point to any particular authority that supported the inadmissibility of the statement of his name and address. Indeed it is arguable that it was necessary to ask the question to identify the accused in case he did, in fact make admissions.
34 As I indicated at the time, if, which I do not accept, there was any impropriety, then given the circumstances of the admission I would allow its admission on the basis that it is highly likely to have been voluntary and true and any impropriety, which I do not accept, was technical or not deliberate or reckless on the part of the interviewing officers.
35 For all these reasons I ruled that the evidence of an admission to the informant in the record of interview was admissible.
Ruling number five: No case submission on charge one
36 At the end of the prosecution case defence counsel made a “no case” submission on both charges 1 and 2.
37 In relation to Charge 1, the submission was that because the amount of mixed quantity containing methylamphetamine was 525 grams, with the bulk of it composed of item 29 being an acetone bottle found in the storage locker containing 430 grams of a mixture of a purity of about 3 per cent methylamphetamine, then the prosecution, on the evidence was unable to prove that the accused had the necessary intent to manufacture more than 500 grams being a commercial quantity of a mixed substance containing methyl amphetamine. The total mixed quantity of methylamphetamine was 525 grams. The pure quantity was approximately 56 grams. A commercial quantity of pure methyl amphetamine is 100 grams.
38 It was submitted on this basis that, first, there was no evidence that all the items containing amounts of methylamphetamine, that needed to be aggregated to make the commercial quantity in a mixture had been manufactured at the same time, and by this same cook, and with the necessary intention, by the accused man. The chemist had not compared the various items found to ascertain whether they fact had been produced at the same time or as a result of the same process. Further a “cook” could take up to nine hours depending or the method and skill of the operator.
39 The central basis of this submission was that the bulk of the amount required (item 29) was essentially a waste product and that given this exhibit was so low in purity, there could not be said to be an intention to produce methylamphetamine at that low purity. It was thus a failure. It was submitted on that basis that there was no case to answer. It was thus argued that there was a reasonable inference available consistent with innocence which the prosecution could not displace.
40 The learned Crown prosecutor submitted that it would be open to the jury to infer from all the circumstances including the fingerprint and DNA evidence, that the accused man was responsible for all of the methylamphetamine located in both locations. These locations were under his exclusive control and thus would be open to the jury to find the relevant intention based on inference from all material, including the volume of precursor chemicals, that he intended to manufacture not less than 500 grams.
41 I dismissed the no case submission and accepted the prosecution submission that it would be open to a jury on the evidence as it stands, to find beyond reasonable doubt that the accused had the necessary intention to manufacture at least 500 grams of a mixed quantity.
42 The flaw in the reasoning of defence counsel was that he sought to reason back from the result of the manufacturing enterprise, namely item 29 being of a very low purity, to the intention of the relevant perpetrator. Thus just because what appeared to be a very low purity quantity was made, this meant that that was relevant to the original intention of the accused.
43 I was satisfied that, given the scale of the two substantial laboratories, as they were described, that were found, and the amount of precursor material also found, it would be open to the jury to find beyond reasonable doubt that the intention “on or about 15 August 2016” was to make as much methylamphetamine as possible, being more than 500g in a mixed amount, and the fact that the “cook” was a failure does not mean that the intention was not held. The only evidence available as to the intention of the perpetrator was the material, both precursor material and actual mixtures containing methylamphetamine, that was found. It would be different if there was evidence as to what the actual intention of the perpetrator was, as often occurs in cases of an intention to cultivate a commercial quantity of cannabis where a cannabis user will give evidence as to the yield expected from a particular crop. This sort of evidence was not available here and I am satisfied that it was open to the jury applying the Doney test to find as the only reasonable inference, that the accused did have an intention to manufacture more than a commercial quantity of a mixture.
44 The evidence here was extensive as to the equipment available, including the found methylamphetamine in various states and purities, the precursor chemicals, and the equipment that had not been finally packed up. The inference was readily available that the perpetrator was seeking to manufacture as much methyl amphetamine as possible. Whether he succeeded in doing so is, I was satisfied, a different issue when considering this element of charge 1.
45 A second aspect of the defence submission in relation to charge 1 was based on the decision in Mustica v R [2011] VSCA 79. This was on the basis that the prosecution was obliged to satisfy the jury that there was complete contemporaneity between the actus reus and the mens rea in relation to intending to manufacture more than a commercial quantity.
46 I do not see that decision as assisting the accused. In that case the court recognised that inferences can be drawn from later occurring events. Thus at [34], the Court said:
“In principle, in my opinion, the relevant intention must be present throughout the actus reus. It is the essence of criminal offending that the act is accompanied by the relevant intention. Proof of intention held from the outset of the actus reus, in a case such as the present, might be inferred from later – occurring events. But there is a difference between an inference of that kind and an inference that, some time in the series of events constituting the actus reus, the accused formed the relevant intent, viewed prospectively.”
See also [66] and footnotes 21 and 22.
47 Here the charge was that “on or about” 15 August 2016 the accused had the relevant intention. In the absence of evidence, at this stage of the proceeding, that other persons had access to the unit and the storage locker, and that the methyl amphetamine found, in the various forms, had not been produced at a time approximate to 15 August 2016, I am satisfied that notwithstanding that there may be an inference that item 29 was a waste product, this does not constitute a basis to find that the accused did not have a case to answer on charge 1.
48 For those reasons I declined the no case submission on charge 1.
Ruling number 6: No case submission - the circularity of the prosecution’s case that the Crown cannot allege under the definition of trafficking that trafficking encompassed preparing a precursor drug for manufacturing a prohibited drug.
49 In the Drugs Poisons and Controlled Substances Act 1981 “traffick” is defined as follows:
“traffic in relation to a drug of dependence includes –
(a) prepare a drug of dependence for trafficking;
(b) manufacture a drug of dependence; or
(c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence.”
50 In charge 2 the prosecution was alleging that contrary to section 71AA trafficked in an amount of ephedrine that was not less than a commercial quantity (100 grams).
51 The gravamen of the charge was that the accused had “prepare[d]” ephedrine for manufacturing methylamphetamine. The defence accepted that ephedrine was a precursor chemical. It was submitted here that the appropriate charge was possession of a precursor chemical. Further, it was not a charge available for possession of a precursor chemical for the purpose of manufacturing. It was argued that the drug that you are preparing to traffick has to be the drug that you are going to traffic. Therefore you could not prepare the ephedrine to traffic methylamphetamine.
52 The defence submission was that on the evidence of the chemist, Mr Mitchell, who indicated that he was uncertain as to what process was being undertaken in relation to the ephedrine contained in the carboy, the prosecution was not in a position to prove beyond reasonable doubt that the ephedrine found at unit 45A, had in fact been “prepared” for trafficking in the sense of manufactur[ing].
53 The learned Crown prosecutor responded by submitting that the very wide inclusive definition of “traffick” is such that any matter involved in “manufacture” would be caught by the term “prepare”.
54 He noted the very wide definition of “sell” a drug of dependence.
Consideration
55 In section 70, the definition section of Part V of the Act, the definitions exclude definitions set out in section 4 of the Act. In section 4, the definition of “manufacture” is stated to “includes the process of refining, manipulating and mixing any poison or controlled substance (including a poison or controlled substance in the raw state); and “manufacturer” has a corresponding interpretation.”
56 That is an inclusive definition and shows how wide the term “manufacture” is in its ordinary meaning. The submission of the learned prosecutor was that in Part V Parliament had sought to comprehensively address all aspects of manufacturing drugs, from manufacture to putting them into distribution.
57 The definition of “traffick” is an inclusive one. At common law in the case of R v Holman [1982] VR 471, trafficking was defined as:
“trafficking, connotes an activity in a commercial setting, that is to say a setting in which it can fairly be inferred that someone involved is making a profit, although not necessarily the person charged with trafficking. Secondly, I would adopt the concept that trafficking connotes participation in the progress of goods from source to consumer.”
58 The incorporation of “manufacturing” within the definition of “traffick” supports the prosecution submission. Obviously drugs can be both prepared for sale or manufactured. As a matter of principle a term is to be given the same meaning within the one Act. Thus the phrase “prepare a drug of dependence for trafficking” can be read as “prepare a drug of dependence for [manufacturing]”. This was the basis upon which the allegation was made against the accused in charge 2. It was argued that there would be unlimited regression as a drug was prepared to be prepared to be prepared for manufacture. It is significant that the relevant criminal provision under section 71AA proscribes both trafficking and “attempts to traffick” in a drug dependence. Thus a failed attempt to manufacture a drug with the necessary mental element, would still be proscribed by section 71AA. Although the prosecution did not seek to rely in charge 2 on attempted trafficking, in a sense this would be a direct answer to the defence submission.
59 The prosecution relied on the evidence that the ephedrine has been the subject of some sort of treatment. In the carboy, there was a mixture of ephedrine and water at the base. Water is a solvent. At the top there was a mixture of ephedrine and xylene, which is also a solvent. While Mr Mitchell conceded that he had not seen ephedrine in that form, it was submitted that the indications were that some form of extraction process had been undertaken. It was necessary in due course to get the ephedrine into solid form and to reduce impurities. This was consistent with the other items in the vanity unit that had a higher purity of ephedrine. In addition, there were items including a plastic funnel that had washings of ephedrine and filter papers containing methylamphetamine and ephedrine. In addition to that there were the amounts of solid ephedrine in the plastic bags in the kitchen (item 65) as well as two bottles of acetone in the refrigerator nearby.
60 I ruled against the no case submission on charge two on the basis that, given the evidence of Mr Mitchell that ephedrine cannot be purchased commercially and is often found in solid form, and in the form found in the unit solvents were present, namely water and xylene, then notwithstanding that Mr Mitchell described the form that it was in as “a little unusual” it would still be open to the jury to infer as the only reasonable inference that the accused had “prepared” more than 100g pure of ephedrine for manufacturing methylamphetamine. Also relevant to this inference is the location of the ephedrine in different states in premises where there was a packed up clandestine laboratory, and a number of laboratory type items on the bench top. Also relevant is the evidence given by Mr Mitchell in re-examination, where he referred to the fact that the chemicals found were consistent with what “we would see as an extraction.” Further if the ephedrine was in liquid form then it was necessary to apply a solvent to make it into a solid.
61 There was an air of sophistry in the defence submission in relation to charge 2 given that there was evidence that there are multiple methods of manufacturing methylamphetamine, there are multiple sources and forms of ephedrine which cannot be purchased commercially, and the carboy container was found co-located with a partially packed up clandestine laboratory where a significant amount of the final product was found in a different range of purities.
62 For all those reasons I am satisfied that it was open to the jury to find that the accused had “prepared” ephedrine in more than a commercial quantity (100 grams pure) for manufacturing into methylamphetamine.
63 On that basis I rejected the no case submission on charge 2.
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