Kingston (a pseudonym) v The Queen; Maxwell (a pseudonym) v The Queen - [2022] SASCA 90

Supreme Court of South Australia
(Court of Appeal: Criminal)
KINGSTON (A PSEUDONYM) v THE QUEEN; MAXWELL (A PSEUDONYM) v THE QUEEN
[2022] SASCA 90
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice David)
1 September 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - TESTS - WHETHER JURY WOULD HAVE RETURNED SAME VERDICT - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE
This is an appeal against conviction by two applicants who were jointly charged with attempting to traffic a large commercial quantity of a controlled substance, butanediol. Butanediol is a controlled substance in South Australia but its importation as an industrial chemical agent is not prohibited by any law of the Commonwealth.
At some point prior to 21 December 2018, an order was placed with a Chinese company in Shanghai for the purchase of 200 kilograms of the substance in a fictitious name. The applicants were charged after the butanediol was intercepted by police, who re-filled the containers with water, and then tracked the delivery to an address associated with the applicants.
The evidence led at trial was circumstantial, with no evidence of how the shipment of butanediol was ordered, its purchase price or how payment was made. The circumstantial evidence linking the applicants to the intercepted butanediol included: telephone calls to and between phone numbers associated with the applicants, the physical movements of the applicants at the time of the delivery of the butanediol, other purchases of butanediol circumstantially connected to the applicants and the applicants’ relational connection to each other and others involved in the delivery of the butanediol.
The applicants raise the following issues on appeal:
1.   Whether the trial Judge erred in finding a case to answer, or in the alternative, not leaving to the jury the question of whether the drug was mixed or pure (Ground 1);
2.   Whether the trial Judge erred in leaving ‘recklessness’ as a basis for liability on a charge of attempted trafficking (Ground 2);
3.   Whether the trial miscarried after comments were made in the presence of the jury by a member of the gallery (Ground 3);
4.   Whether the trial Judge erred by not directing the jury not to conduct their own enquiries outside of the court room (Ground 4); and
5.   Whether the learned trial Judge erred by admitting evidence of previous purchases of 1,4‑Butanediol for propensity purposes in the trial (Ground 5).

Held, per Kourakis CJ, granting permission to appeal on Grounds 3, 4 and 5, allowing the appeal against conviction of each applicant and ordering a retrial on a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] SASCA 90
Decision Date: 1 September 2022

CaseChat Overview and Summary

In *Kingston v The Queen* and *Maxwell v The Queen*, the applicants appealed their convictions for trafficking a large commercial quantity of butanediol in South Australia. The central issue on appeal concerned the quantity of butanediol involved and the legal consequences of its purity. The applicants argued that the trial judge erred by directing the jury that the butanediol was a "mixture" for the purposes of the Controlled Substances Regulations 2011 (SA), thereby triggering a presumption of trafficking.

The court was required to determine whether the trial judge was correct in ruling that the butanediol seized, which was of high purity (approximately 95%), constituted a "mixture" as defined by the regulations, or if it was in its "pure" form. The distinction was critical because the regulations prescribe a large commercial quantity for butanediol in its mixed form, but not for its pure form. If the butanediol was pure, the applicants could only have been convicted of the lesser offence of attempted trafficking.

The court reasoned that the evidence did not establish that the butanediol was a mixture. While it contained minor impurities consistent with manufacturing and degradation, it was not otherwise adulterated. The trial judge's direction to the jury on the premise that it was a mixture, without leaving the factual question of its purity to the jury, constituted an error of law. Consequently, the court allowed the appeal, quashed the convictions for trafficking a large commercial quantity, and substituted verdicts of guilty for attempted trafficking in butanediol.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The butanediol the subject of the charge, 200 litres, exceeded, by weight, 2 kilograms which is prescribed by the Controlled Substances Regulations 2011 (SA) (CSR) to be a large commercial quantity of butanediol in its mixed (not pure) form. No quantity is prescribed for butanediol in its pure form. The butanediol intercepted by police contained very small amounts of impurities and by‑products, consistent with the manufacturing process and the natural degradation of pure butanediol, but it was not otherwise adulterated. The Judge directed the jury on the premise that the butanediol was mixed and that therefore the presumption that it was to be trafficked applied. The Judge did not leave the question of fact, whether the butanediol was in its pure form or in a mixture, to the jury. Maxwell and Kingston contend that the Judge erred in law in removing that issue of fact from the jury and contend that the evidence showed, or at least allowed the possibility, that the butanediol was not mixed. If it was butanediol in its pure form, no large commercial quantity was prescribed, and the applicants could only have been convicted of the basic trafficking offence. I would allow the appeal on this ground. For the reasons given below, the evidence did not establish that the liquid in the containers intercepted by police was a mixture containing butanediol. I would therefore substitute a verdict of guilty of attempted trafficking in butanediol contrary to s 32(3) of the CS Act. The evidence The prosecution evidence can be summarised as follows. Butanediol, commonly known as Fantasy is sold at the user level in 1 millilitre doses, packaged in small plastic containers like mini syringes used to measure out doses of liquid medicines or even mini, fish-shaped, soy sauce containers. A 1 millilitre dose was sold in 2019 for between $2.15 and $3.00. It is sold, higher up in the distribution chain, in one litre containers for between $1,500.00 and $3,000.00. It is most commonly found by police in 1 to 10 litre containers. The total value of the butanediol, landed in Australia, would therefore have approximated $300,000.00. Butanediol can be ‘cut’ by watering it down. The police officer who gave expert evidence on the distribution and price of butanediol had not before encountered butanediol with a purity as high as 95 percent. Sometime prior to 21 December 2018, an order was placed with a Chinese company in Shanghai for the purchase of 200 kilograms of butanediol in the name of James Mercer. On 30 December 2018, 200 litres of butanediol weighing over 200 kilograms arrived in Melbourne from China. It was packaged into four crates, each containing two 25 litre blue plastic containers of the fluid. Although the importation of butanediol as an industrial chemical agent is not prohibited by any law of the Commonwealth, it is a controlled substance in South Australia. There was no direct evidence of how the shipment was ordered, its purchase price or how payment was made. The delivery details attached to the consignment were:·Name – James Mercer·Address – 59 Old Princes Highway, Littlehampton South Australia·Telephone – 0423 049 726 (the 726 service)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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