McNally v The King; Doble v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0035

LUKE MCNALLY	Applicant
v
THE KING	Respondent
S EAPCR 2024 0141

WAYNE DOBLE	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, KENNEDY and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June 2025
DATE OF JUDGMENT:	19 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 231
JUDGMENT APPEALED FROM:	[2023] VCC 2480 (Judge Carlin)

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CRIMINAL LAW – Conviction – Appeal – Trafficking in drugs of dependence in commercial quantities and large commercial quantities – Applicant convicted of 24 charges related to the manufacture of methylamphetamine and MDMA at two clandestine laboratories – Admission of evidence of admitted prior drug trafficking convictions – Whether jury invited to use as tendency evidence – Whether danger of prejudice outweighed probative value – Admission of evidence of firearm at clandestine laboratory – Whether relevant evidence – Whether danger of prejudice outweighed probative value – Whether trial judge erred in directions on what is necessary to prove an intention to manufacture a commercial quantity or large commercial quantity of a drug of dependence when drug is found in a mixed substance – Leave to appeal refused.

Drugs, Poisons and Controlled Substances Act 1981, ss 4, 70; Evidence Act 2008, s 137.

R v Ahmed (2007) 17 VR 454; Trajkovski v The Queen (2011) 32 VR 587.

CRIMINAL LAW – Conviction – Appeal – Complicity in trafficking in drugs of dependence in commercial quantities – Prosecution alleged applicant agreed with co-accused that co-accused would manufacture commercial quantities of MDMA and methylamphetamine in a clandestine laboratory at premises controlled by applicant – Whether prosecution case impermissibly changed at trial – Whether trial judge impermissibly intervened to broaden prosecution case – Whether applicant denied natural justice because prosecution failed to disclose path of reasoning to conviction to the jury – Whether trial judge erred in directions on scope of necessary agreement between applicant and manufacturer – Whether evidence that applicant hid from police and lied in record of interview admissible as evidence of incriminating conduct – Whether conviction on charge of trafficking commercial quantity of MDMA was inconsistent with acquittal on charge of trafficking commercial quantity of methylamphetamine – Leave to appeal refused.

Jury Directions Act 2015, ss 18, 20, 21, 22.

DPP v Scriven [No 4] [2015] VSC 220; DPP v Lynn [2024] VSCA 62; Cookson (a pseudonym) v The King [2024] VSCA 289; MacKenzie v The Queen (1996) 190 CLR 348; Booth v The King [2024] VSCA 318.

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Counsel
Applicant (McNally):		Mr PJ Smallwood and Mr JD Cleveland
Applicant (Doble)		Mr DP Sheales
Respondent:		Mr J Shaw and Ms AM Harrold
Solicitors
Applicant (McNally):	Emma Turnbull Lawyers
Applicant (Doble)	Theo Magazis & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction

Prosecution case

Course of the trial

McNally’s application for leave to appeal

McNally ground 1: Evidence of McNally’s prior criminal history

(a) Submissions

(b) Analysis

McNally ground 2: Evidence of McNally’s possession of the firearm

(a) Submissions

(b) Analysis

McNally ground 3: Directions on intention

(a) Submissions

(b) Analysis

Conclusion on McNally’s application for leave to appeal

Doble’s application for leave to appeal

Doble grounds 1 and 2: Basis of prosecution case and intervention of trial judge following no case submission

(a) Submissions

(b) Analysis

Doble grounds 3 and 5: Directions on breadth of agreement required to convict on charges 15 and 16

(a) Submissions

(b) Analysis

Doble ground 4: Failure to disclose reasoning process for conviction

(a) Submissions

(b) Analysis

Doble ground 6: Evidence of incriminating conduct

(a) Submissions

(b) Analysis

Doble ground 7: Inconsistent verdicts

(a) Submissions

(b) Analysis

Conclusion on Doble’s application for leave to appeal

Conclusion

BEACH JA
KENNEDY JA
ORR JA:

Introduction

Luke McNally, Wayne Doble and Gungor Sert were tried by jury in the County Court on a joint indictment alleging a range of offences contrary to the Drugs, Poisons and Controlled Substances Act 1981 (‘DPCS Act’). The charges arose from the discovery of two clandestine drug laboratories. One laboratory was located on the ground floor of a premises at 13 Horne Street in Elsternwick (the ‘Horne St premises’). The other was located in a garage at an address in Rowes Lane, Wallan (the ‘Wallan premises’). Search warrants were executed at each premises on 9 December 2019. Drugs of dependence, precursor chemicals and sophisticated manufacturing equipment were found in each location. The drugs found at the Horne St premises included ‘commercial quantities’ of both MDMA[1] and methylamphetamine.[2] The drugs found at the Wallan premises included ‘large commercial quantities’ of MDMA, methylamphetamine and P2P.[3]
[1]3,4-Methylenedioxy-N-methylamphetamine. A ‘commercial quantity’ of MDMA was 100 grams of pure MDMA or a mixed substance of 500 grams containing MDMA: Part 3 of Schedule 11 to the DPCS Act.
[2]A ‘commercial quantity’ of methylamphetamine was 50 grams of pure methylamphetamine or a mixed substance of 250 grams containing methylamphetamine: Part 3 of Schedule 11 to the DPCS Act.
[3]Phenyl-2-Propanone. A ‘large commercial quantity’ of MDMA was 750 grams of pure MDMA or a mixed substance of 1 kilogram containing MDMA; a large commercial quantity of methylamphetamine was 500 grams of pure methylamphetamine or a mixed substance of 750 grams containing methylamphetamine; and a large commercial quantity of P2P was a mixed substance of 500 grams containing P2P: Part 3 of Schedule 11 to the DPCS Act.
The prosecution case was that McNally trafficked, by manufacturing,[4] the drugs found in each location; that Doble was complicit in McNally’s manufacture of the drugs found at the Horne St premises; and that Sert was complicit in McNally’s manufacture of the drugs found at the Wallan premises.
[4]‘Traffick’ is defined in the DPCS Act to include the manufacture of a drug of dependence. The term is also defined to include preparing a drug of dependence for trafficking, as well as selling, exchanging, agreeing to sell, offering for sale and having in possession for sale, a drug of dependence: s 70(1).
Sert faced trial on two charges and was acquitted on each charge.
McNally faced trial on 25 charges, 13 of which related to the Wallan premises and 12 of which related to the Horne St premises.
The charges in relation to the Wallan premises were:
(a)three charges of trafficking in not less than a large commercial quantity of a drug of dependence, namely MDMA, methylamphetamine and P2P, between 25 October 2019 and 9 December 2019 (charges 1 to 3 respectively);[5]
(b)one charge of trafficking in a drug of dependence, namely MDP2P,[6] between 25 October 2019 and 9 December 2019 (charge 4);[7]
(c)eight charges of possessing particular precursor chemicals on 9 December 2019 (charges 5 to 12);[8] and
(d)one charge of possessing scientific glassware, equipment and substances for the purposes of trafficking in a drug of dependence on 9 December 2019 (charge 14).[9]
[5]Contrary to s 71 of the DPCS Act.
[6](3,4-Methylenedioxyphenyl)-2-propanone.
[7]Contrary to s 71AC of the DPCS Act.
[8]Contrary to s 71D of the DPCS Act.
[9]Contrary to s 71A of the DPCS Act.
In relation to charges 1 to 3, McNally did not dispute that he intentionally manufactured MDMA, methylamphetamine and P2P in the clandestine laboratory at the Wallan premises. He also accepted that the total quantities in which each of these drugs were found at the Wallan premises constituted a large commercial quantity. However, he disputed that he had manufactured the entirety of each of those amounts, or that he intended to manufacture a large commercial quantity, or a commercial quantity, of any of these three drugs.
The charges on which McNally was tried in relation to the Horne St premises were:
(a)two charges of trafficking in not less than a commercial quantity of a drug of dependence, namely MDMA (charge 15) and methylamphetamine (charge 16), between 25 October 2019 and 9 December 2019;[10]
(b)four charges of trafficking in a drug of dependence, namely MDP2P (charge 18), methylamphetamine (charge 24), GBL[11] (charge 25) and cocaine (charge 26), on 9 December 2019;[12]
(c)one charge of possessing various substances, materials and equipment for the purpose of trafficking in a drug of dependence on 9 December 2019 (charge 23);[13]
(d)four charges of possessing certain precursor chemicals on 9 December 2019 (charges 22, and 27 to 29);[14] and
(e)one charge of possessing a drug of dependence, namely MDMA, on 9 December 2019 (charge 30).[15]
[10]Contrary to s 71AA of the DPCS Act.
[11]Gamma butyrolactone.
[12]Contrary to s 71AC of the DPCS Act.
[13]Contrary to s 71A of the DPCS Act.
[14]Contrary to s 71D of the DPCS Act.
[15]Contrary to s 73 of the DPCS Act.
In relation to charges 15 and 16, McNally pleaded guilty to the unindicted lesser offences of trafficking simpliciter. His plea was not accepted by the prosecution. The trial on those charges proceeded on the basis that McNally did not dispute that he intentionally manufactured MDMA and methylamphetamine at the Horne St premises, or that the amount of MDMA and methylamphetamine that was manufactured constituted a commercial quantity. However, McNally disputed that he intended to manufacture a commercial quantity of either of these drugs.
Prior to trial, McNally pleaded guilty to three further charges relating to the Horne St premises. The charges were: one charge of trafficking in a drug of dependence, namely GBL and GHB,[16] on 9 December 2019 (charge 19) and two charges of possessing particular precursor chemicals, namely ephedrine and safrole, on 9 December 2019 (charges 20 and 21). McNally also pleaded guilty to two charges on a separate plea indictment, namely a charge of trafficking 3 grams of methylamphetamine on 31 July 2019[17] and a charge of possessing, carrying or using an unregistered Category E handgun found during the search of the Horne St premises.[18]
[16]4-hydroxybutanoic acid.
[17]Contrary to s 71AC of the DPCS Act.
[18]Contrary to s 7B(2) of the Firearms Act 1996.
McNally was found guilty of all charges in relation to the Wallan premises and all charges on which he faced trial in relation to the Horne St premises other than charge 18 (trafficking in MDP2P). He was sentenced to a global total effective sentence of 17 years and 8 months’ imprisonment, with a non-parole period of 10 years and 7 months.
Doble faced trial on four charges, each of which related to the drugs and equipment found at the Horne St premises. The charges were:
(a)two charges of trafficking in not less than a commercial quantity of a drug of dependence, namely MDMA (charge 15) and methylamphetamine (charge 16) between 25 October 2019 and 9 December 2019;[19]
(b)as an alternative to charges 15 and 16, one charge of permitting the Horne St premises to be used for trafficking in a drug of dependence between 26 November 2019 and 9 December 2019 (charge 17);[20] and
(c)one charge of possessing various scientific glassware, equipment and substances for the purpose of trafficking in a drug of dependence on 9 December 2019 (charge 23).[21]
[19]Contrary to s 71AA of the DPCS Act.
[20]Contrary to s 72D of the DPCS Act.
[21]Contrary to s 71A of the DPCS Act. The items that were the subject of charge 23 were listed in Schedule B to the indictment.
Doble disputed all elements of each of these charges. He denied any knowledge of the manufacture of illegal drugs at the Horne St premises, let alone that he had entered into any agreement with McNally to manufacture commercial quantities of MDMA and methylamphetamine at the premises.
Doble was found guilty on charge 15 (trafficking in not less than a commercial quantity of MDMA) and not guilty on charge 16 (trafficking in not less than a commercial quantity of methylamphetamine). Given the finding of guilt on charge 15, no verdict was taken on the alternative charge of permitting the Horne St premises to be used for trafficking (charge 17). Doble was also found guilty on charge 23 (possessing scientific glassware, equipment and substances for the purpose of trafficking). He was sentenced to a total effective sentence of 5 years and 3 months’ imprisonment, with a non-parole period of 3 years and 3 months.
McNally and Doble each seek leave to appeal against their convictions on various grounds. Doble’s application for leave to appeal was filed some seven months out of time. He therefore requires an extension of time within which to seek leave to appeal.[22]
[22]McNally also filed his application for leave to appeal out of time but was granted an extension of time on 14 June 2024.
For the reasons that follow, we will refuse McNally leave to appeal and refuse Doble an extension of time to seek leave to appeal.

Prosecution case

The prosecution case at trial was that during the period from April 2019 to February 2020, a syndicate was engaged in manufacturing and trafficking drugs in several locations in Victoria, including the Horne St premises and the Wallan premises.
The prosecution alleged that in early 2019, McNally, who had experience in manufacturing drugs, rented the garage at the Wallan premises from Sert. In the months that followed, McNally made several trips to the Wallan premises, where the prosecution alleged he manufactured drugs in a covert laboratory inside the garage.
Throughout this period, McNally was living at the Wellbeing Planet Rehabilitation Centre on the ground floor of 7–12 Horne Street in Elsternwick, next door to the Horne St premises. The two premises were both owned by the same company, which rented out the Horne St premises as a storage facility.
Doble, who the prosecution alleged had a close relationship with McNally, also lived at the Wellbeing Planet Rehabilitation Centre. He was the building manager of that premises.
On 31 July 2019, McNally had a conversation with two covert operatives. He told them that he was a biochemist and that he was facing charges over a clandestine ice laboratory that he had been operating in Rushworth. He said he was living at the ‘rehab’ in Elsternwick. The covert operatives subsequently attended at 7–12 Horne St, and bought approximately 3.5 grams of methylamphetamine from McNally. This sale gave rise to the first of the two charges on McNally’s plea indictment.
In October 2019, the tenant of the Horne St premises was evicted after falling behind in his rent. Doble sought to rent the Horne St premises, telling the landlord that he wanted to use the premises as a gymnasium, and that he wanted to renovate the premises before signing a lease. Doble ultimately signed a lease for the premises on 26 November 2019 in his capacity as a director of a company.
In early November 2019, Doble was given the only key to the Horne St premises. The prosecution case was that in the period that followed, McNally and Doble built a clandestine laboratory in the Horne St premises, which was concealed behind a wall and a set of shelving. McNally and Doble also unsealed an internal connecting door through which they could gain access from 7–12 Horne St to the Horne St premises.
On 18 November 2019, police executed a covert search warrant at the Wallan premises. Investigators observed a large scale operational clandestine laboratory consisting of scientific equipment and glassware containing unknown liquids. Samples of various items were taken, which were subsequently analysed and found to contain methylamphetamine, P2P, ephedrine and MAPA.[23] MAPA, P2P and ephedrine are used in the manufacture of methylamphetamine.
[23]Methyl alpha-acetophenylacetate.
A further search warrant was executed at the Wallan premises on 9 December 2019. The search continued over multiple days. Scientific equipment and glassware were seized, as well as various liquids. The seized substances were analysed and found to contain MDMA, methylamphetamine, P2P and MDP2P. Where a drug was found to be present in a number of separate mixed substances, the total quantity of the drug, for the purpose of showing that there was no less than a commercial quantity or a large commercial quantity of the drug, was calculated by adding together the individual weights of those mixed substances.
At the same time the warrant was executed at the Wallan premises, police also executed a search warrant at both the Horne St premises and at 7–12 Horne St. The searches at these premises also continued over multiple days. The Horne St premises smelt strongly of chemicals. On the second day of the search, the clandestine laboratory in the Horne St premises was located behind a concealed door. Various items were seized, including scientific equipment and glassware, solvents and liquids. The seized substances were analysed and found to contain MDMA, methylamphetamine, GBL and cocaine. Again, where a drug of dependence was found in separate mixed substances, the total quantity of the drug was calculated by adding together the individual weights of the mixed substances.
During the search of the Horne St premises, a loaded firearm was located in a cardboard box in a room next to the clandestine laboratory. This formed the basis of the second charge on McNally’s plea indictment. Police also seized a video camera that had been installed inside the clandestine laboratory, which the prosecution alleged McNally had been using to monitor activities in the laboratory in the weeks prior to the execution of the search warrant.
On the first day of the search of the premises at 7–12 Horne St, Doble was found by police on the roof underneath a large air conditioning unit. The keys to the internal door to the Horne St premises were located in Doble’s room at 7–12 Horne St. McNally was not located at this time. He was found by police two days later, covered by a doona face down between a bed and a wall in one of the rooms in 7–12 Horne St. He was hungry and thirsty.
The prosecution alleged that footage from the video camera seized from inside the clandestine laboratory at the Horne St premises showed McNally engaging in drug manufacturing and carrying the firearm that was subsequently found on the premises. In some of the footage, Doble could be seen observing McNally’s activities. Doble could also be seen inspecting the construction of the wall behind which the clandestine laboratory was located. Two other residents of the rehabilitation facility were also shown in the footage, one of whom could be seen assisting in the construction of the wall, as well as assisting with the manufacturing activities.
The footage from the video camera also captured a conversation between McNally and Doble, in which McNally told Doble that ‘it didn’t fine up’ and that he thought he had ‘fucked it’, but ‘I think I did all right’. In response, Doble asked what a particular substance was, to which McNally responded that it was ketone. Doble then asked ‘What about the M?’, to which McNally responded, ‘I’ve done some M and I’m about to finish the rest’. Doble said ‘What, is nothing ready to be sold?’, to which McNally said, ‘There’s M to be sold but not much. I’m going to sell some to someone for 1200, if not we will have to sell it for 20,000 a kilo’.
Doble told police that he had entered into the lease for the Horne St premises for the purpose of setting up a massage studio, T-shirt printing business and gym. He denied knowing anything about any drug manufacturing on the premises, saying that he had ‘not laid eyes on anything’ and ‘not seen anything’ to do with drug manufacturing. He said he had only been into the Horne St premises twice. He said the wall had been built at the premises to create a dust free environment for the T-shirt printing business. He denied any knowledge of the firearm located during the search.

The prosecution case against Doble was that he had agreed for McNally to use the Horne St premises for the purpose of McNally manufacturing not less than a commercial quantity of MDMA and methylamphetamine. There was no suggestion that Doble was involved in McNally’s activities at the Wallan premises, or that Sert was involved in McNally’s activities at the Horne St premises.

Course of the trial

The trial proceeded over 25 days.
McNally’s counsel opened McNally’s case to the jury on the following basis:
(a)In relation to the drugs found at the Wallan premises, McNally accepted that he had been manufacturing drugs at those premises, but disputed: that he was responsible for manufacturing all of the drugs found on those premises, and therefore a large commercial quantity of those drugs; and that he had intended to manufacture the drugs in the quantities that were found.
(b)In relation to the drugs found at the Horne St premises, McNally accepted, by his plea of guilty to the unindicted offence of trafficking simpliciter in connection with charges 15 and 16, that he had been manufacturing the drugs that were the subject of those charges, with the only issue being whether he had intended to manufacture them in the quantities that were found.
In Doble’s counsel’s opening address, no concession was made about any element of the offences against Doble.
The prosecution called evidence from 17 witnesses. Those witnesses included: the landlord of the two premises on Horne St; various members of Victoria Police who were involved with the execution of the search warrants at the Wallan premises and at the two premises on Horne St; one of the two covert operatives who spoke with McNally on 31 July 2019; and three forensic chemists, who gave evidence about their analysis of the items seized during the search warrants executed at each of the premises.
The prosecution also relied on a set of admitted facts from each of McNally, Doble and Sert. Relevantly, both McNally and Doble admitted the total quantities of the substances containing MDMA and methylamphetamine that were found at the Horne St premises, and that these quantities exceeded the relevant threshold for a commercial quantity of each of those drugs. The facts admitted by McNally also included instances of previous drug offending. These facts were included following a pre-trial ruling that evidence of the previous offending was admissible and could be relied on by the prosecution.
At the conclusion of the prosecution case, both McNally and Doble submitted that they had no case to answer.
(a)McNally submitted that on a proper construction of the definitions of ‘commercial quantity’ and ‘large commercial quantity’ in s 70(1) of the DPCS Act, it was necessary for the prosecution to prove that he had manufactured a mixed quantity of each relevant drug of dependence in a ‘usable form’ above the prescribed threshold for a mixed substance, and that he had intended to do so. He submitted that the evidence did not support these propositions. Alternatively, he submitted that the state of the evidence meant that the jury could not exclude various reasonably possible scenarios that would result in certain exhibits being excluded from the calculation of the quantities of drugs at each of the premises, such that the drugs at the Wallan premises were not present in large commercial quantities and the drugs at the Horne St premises were not present in commercial quantities.
(b)Doble submitted that, based on the evidence, it was not open to the jury to infer for the purposes of charges 15, 16 and 17 that: either MDMA or methylamphetamine was manufactured at the Horne St premises, rather than transported from the Wallan premises; or that there was an agreement between McNally and Doble that McNally would manufacture commercial quantities of either drug at the Horne St premises. In relation to charge 23, Doble submitted that there was no evidence that any of the items listed in the schedule to the indictment were intended to be used in the manufacture of illicit drugs.
The trial judge rejected both no case submissions.
Relevantly in relation to McNally’s no case submission, the trial judge: rejected McNally’s arguments about the proper construction of the DPCS Act; and found that it was open to the jury to infer, on the whole of the circumstantial evidence, that McNally manufactured each of the items said to give rise to large commercial quantities of the drugs found at the Wallan premises.
Relevantly in relation to Doble’s no case submission, the trial judge ruled that a jury could exclude as a reasonable possibility that at least some of the substances containing MDMA and methylamphetamine that were found at the Horne St premises (together making up a commercial quantity of each of those drugs) were transported from the Wallan premises, rather than manufactured at the Horne St premises. On the whole of the evidence, a jury would be entitled to infer that at least some of those items (again, collectively amounting to a commercial quantity of each of the drugs) were made at the Horne St premises. Further, a jury would be entitled to infer that at least some of the items in the schedule to the indictment were intended to be used in the manufacture of illicit drugs, and that Doble had an agreement with McNally to use them in that way.
Neither McNally nor Doble adduced any evidence in their defence.

McNally’s application for leave to appeal

McNally advances three proposed grounds of appeal, which can be summarised as follows:
(a)A substantial miscarriage of justice arose from the admission of evidence of McNally’s prior criminal history and the use the jury was permitted to make of that evidence. The prosecution should have been required to satisfy the tendency rule in relation to that evidence or the evidence should have been excluded pursuant to s 137 of the Evidence Act 2008 (‘McNally ground 1’).
(b)A substantial miscarriage of justice arose from the admission of evidence of a gun at the Horne St premises and the use the jury was permitted to make of that evidence. That evidence was not relevant or admissible and should have been excluded pursuant to s 137 of the Evidence Act 2008 (‘McNally ground 2’).
(c)A substantial miscarriage of justice arose on charges 1, 2, 3, 15 and 16, from the way the jury was directed about the circumstances in which they could infer that McNally intended to manufacture a large commercial quantity or a commercial quantity of a drug (‘McNally ground 3’).

McNally ground 1: Evidence of McNally’s prior criminal history

Prior to trial, the prosecution indicated that it wished to rely on evidence that in June 2019, McNally had pleaded guilty to offending that occurred in late 2017 and early 2018. The offending comprised: one charge of trafficking in a drug of dependence, namely methylamphetamine; one charge of possessing equipment and substances for the purpose of trafficking in a drug of dependence; and one charge of possessing a drug of dependence, namely 1-phenyl-2-nitropropene (‘P2NP’), a substance that can be used in the manufacture of methylamphetamine. The prosecution also wished to rely on a detailed description of the circumstances of this prior offending, which concerned sophisticated drug manufacturing by McNally at his home in Cornella and in a shed on a nearby property in Rushworth.
The prosecution submitted that this evidence was relevant because although McNally did not dispute in the present case that he had engaged in trafficking by manufacturing drugs of dependence, he disputed that he had intended to traffick in not less than a large commercial quantity of the drugs found at the Wallan premises (charges 1, 2 and 3) and in not less than a commercial quantity of the drugs found at the Horne St premises (charges 15 and 16).
McNally conceded that the evidence of his admitted prior offending was relevant, but sought to persuade the trial judge that its probative value was outweighed by the danger of unfair prejudice. He argued that the probative value of the evidence was low in light of the fact that the prior offending involved trafficking simpliciter (rather than trafficking in a commercial quantity or large commercial quantity) and there was no dispute that McNally was manufacturing drugs in the present case. He submitted that the evidence would have a prejudicial effect because the jury would learn of his prior admission of guilt and may speculate about the circumstances of that prior manufacture.
The trial judge declined to exclude the evidence under s 137 of the Evidence Act 2008. During her charge, the trial judge gave the jury detailed directions about the permissible and impermissible uses of the evidence. Similar directions were also given at the time the evidence was admitted.

(a) Submissions

In this Court, McNally submitted that the admission of the evidence of his admitted prior offending, and the use that the jury were permitted to make of it, resulted in a substantial miscarriage of justice. The admission of that evidence was said to constitute an error in the trial, in circumstances where this Court could not be satisfied that the error did not make a difference to the outcome of the trial.[24]
[24]Citing Baini v The Queen (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.
McNally submitted that the evidence should not have been before the jury for two reasons.
First, the evidence was led and relied on as evidence of McNally’s conduct to prove that he had a particular state of mind. The prosecution was therefore permitted to invite what was in fact a form of tendency reasoning. This was impermissible in circumstances where the prosecution had not filed a tendency notice, had eschewed reliance on tendency reasoning, and had not been required to satisfy the tests for the admissibility of tendency evidence provided for in ss 97(1) and 101(2) of the Evidence Act 2008. The trial judge should have applied the statutory protections that guard against the risks associated with the cognitive process that is necessarily involved when evidence of other criminal misconduct is sought to be used to prove that an accused person has a tendency to have a particular state of mind.[25]
[25]Citing Hughes v The Queen (2017) 263 CLR 338, 364–70 [68]–[86] (Gageler J); [2017] HCA 20.
When asked during the hearing in this Court to identify the statements that had been made by the prosecutor that invited the jury to use the evidence to engage in tendency reasoning, McNally’s counsel referred to the following portion of the prosecutor’s closing address:
The prior matter you heard me read in is the notice of admissions. That is again something significant. I’ve already referred to it. He’s not making drugs for the first time. He’s done it before and what you might think is that he knows precisely about quantities and what he is doing. Her Honour will give you directions about how you can use that. I mean just the fact that he’s done it before you cannot use it in a way other than the way which you’ll be told, but it is evidence, we say and you can use it this way, that Mr McNally is a person of quite some expertise.
McNally also pointed to a passage in the prosecutor’s closing address where, having referred to evidence about the frequency with which he visited the laboratory at the Wallan premises and the amount of time he spent engaged in apparent manufacturing activities in that laboratory, the prosecutor said, ‘That is not an amateur at work. This we say is a very dedicated professional application of knowledge to effect what he was doing’.
The second reason McNally advanced as to why the evidence of his admitted prior offending should not have been before the jury was that its probative value was outweighed by the danger of unfair prejudice. He submitted that the judge’s ruling to the contrary was in error. The evidence could not rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding to any meaningful degree. There was an extreme danger that the jury would engage in rank propensity reasoning, give the evidence disproportionate weight and not properly assess whether the evidence established that McNally had the required state of mind or intention in relation to the offending in issue.
In response, the respondent submitted that the evidence of McNally’s prior offending was not led on the basis that McNally had a tendency to act in a particular way or to have a particular state of mind (such as to intentionally manufacture not less than a commercial or large commercial quantity of drugs of dependence). Instead, as the trial judge had observed, the evidence was led ‘to rebut the suggestion that [McNally] did not have the knowledge and experience to appreciate how much he was manufacturing in the present case’. The prosecution was therefore not required to meet the thresholds for admissibility set by ss 97(1) and 101(2) of the Evidence Act 2008. Further, the respondent submitted that the evidence should be seen in the context of other admissible evidence in the prosecution case, including the admissions McNally had made to two covert operatives about his manufacturing prowess.
As to the argument that the evidence should have been excluded under s 137 of the Evidence Act 2008, the respondent submitted that given the facts in issue, the evidence that McNally had previously manufactured methylamphetamine was highly probative. As to any unfair prejudice, the trial judge’s directions on the permissible and impermissible uses of the evidence were carefully framed and there was no basis to conclude that the jury did not follow those directions.

(b) Analysis

McNally’s submissions did not identify the particular tendency that he asserted the prosecution was seeking to establish through the evidence of his admitted prior offending. It is difficult to see what that tendency could have been. There was no utility in the prosecution seeking to establish that McNally had a tendency to manufacture drugs, because he had admitted manufacturing the drugs in question in this case. And the evidence could not have been used to demonstrate that McNally had a tendency to manufacture drugs in large quantities, because the prior offending related to trafficking in smaller quantities.
We reject the submission that the evidence was led to demonstrate that McNally had a tendency to act in any particular way or to have any particular state of mind. To the contrary, the prosecutor expressly told the jury that the fact that McNally had ‘done it before’ was something the jury could not use in any way other than the way that the judge would tell them it could be used. There was no error in the trial judge’s decision to permit the evidence to be led without the prosecution satisfying the statutory tests for admissibility that apply to tendency evidence.
Further, we reject McNally’s submission that the evidence ought to have been excluded under s 137 of the Evidence Act 2008. The evidence was highly probative. The key issue in dispute in the case against McNally was whether McNally intended to manufacture the drugs found in the two premises in not less than commercial or large commercial quantities, or whether he had only intended to manufacture smaller quantities. The evidence of his admitted prior offending bore directly on this issue, as it concerned his expertise in drug manufacturing, and therefore the likelihood that he would have understood the quantities of drugs that he was manufacturing. It was circumstantial evidence from which the jury could infer that McNally had the knowledge and intention to manufacture the drugs that were found in the quantities that were found.
Any risk that the admission of the evidence would cause unfair prejudice to McNally was addressed by the following directions the trial judge gave to the jury:
[T]his evidence is being admitted for a very limited purpose. It is important that you understand why it is being put before you or why it was put before you and how you may use it and how you must not use it. These are directions of law you must follow.
The prosecution argues that this evidence is relevant to the accused McNally’s expertise and knowledge in relation to the manufacturing of drugs and therefore it goes to the issue of what he knew or believed about how much he was manufacturing in this case.
[Defence counsel] argues it does no such thing.
… you may use the evidence of the prior manufacture if you choose to do so as a piece of circumstantial evidence. That is, one part of the evidence along with other evidence, to help you decide the issue of what the accused McNally knew or believed about how much he was manufacturing.
It is only relevant to his state of mind and in particular whether he intended to manufacture the quantities alleged. It is not relevant for any other reason.
You should keep the evidence about the prior manufacture in perspective. It is only one part of the evidence in the case against the accused McNally and you must decide the charges based on all of the evidence relating to those charges.
Further, you must not use the evidence for any purpose other than assessing the accused McNally’s state of mind in relation to the charges. In particular, you must not allow any prejudice you may feel arising from the evidence to influence you. You must not say to yourselves, well, he manufactured before he must have intended to manufacture a commercial quantity or a large commercial quantity this time.
You must not reason from his prior manufacture that he is the kind of person who is likely to have intended to manufacture or to have manufactured a commercial quantity or a large commercial quantity. That would be an improper inference. Your decision must be based on the evidence in the trial, not on any assumptions you might make as to the sorts of people who commit crimes.
These directions were clear about the ways in which the jury could, and could not, use the evidence. In these circumstances, any prejudicial effect of the evidence did not outweigh its probative value. The trial judge was correct to decline to exclude the evidence under s 137 of the Evidence Act 2008.

McNally ground 2: Evidence of McNally’s possession of the firearm

The prosecution also indicated prior to trial that it wished to rely on evidence about the loaded firearm that was located during the execution of the search warrant at the Horne St premises. The judge ruled that evidence about the firearm was admissible and declined to exclude it under s 137 of the Evidence Act 2008. As a result, the jury heard evidence about the discovery of the firearm in a box found in the Horne St premises, saw video footage from the CCTV camera installed in the Horne St premises that showed McNally handling the firearm while in the clandestine laboratory, and saw photographs of stills from that footage showing McNally in the laboratory with the firearm.

(a) Submissions

McNally submitted that this evidence should not have been before the jury for two reasons.
First, McNally submitted that the evidence was not relevant. It could not rationally affect (directly or indirectly) the assessment of the probability of the existence of any fact in issue in relation to charges 15 or 16. The issue in dispute on those charges was instead informed by the evidence of, and the inferences to be drawn from, the manufacturing process itself. The evidence about the firearm said nothing about whether McNally was guilty of trafficking drugs in not less than a commercial quantity, or only of trafficking simpliciter (the unindicted alternative charge to which he had offered a plea of guilty). The firearm was not alleged to have been used to further the manufacturing process. It said nothing about McNally’s state of mind as to the quantity of drugs he was manufacturing. Further, there was no firearm at the Wallan premises, and McNally’s alleged modus operandi in manufacturing drugs could therefore not be said to involve a firearm (even when the larger quantities of drugs found at the Wallan premises were involved).

The second reason McNally advanced as to why the evidence about the firearm should not have been before the jury was that, even if it was relevant, the danger of unfair prejudice outweighed its probative value. He submitted that the probative value of the evidence was very limited and that its admission gave rise to an extreme danger that the jury would engage in rank propensity reasoning and give the evidence disproportionate weight.
In response, the respondent submitted that the evidence about the firearm was relevant as circumstantial evidence that McNally was intentionally manufacturing drugs at the Horne St premises in such large quantities that he required a significant level of protection.
The respondent relied on the following propositions from the decision of this Court in Arico v The Queen,[26] which it said applied not only to ‘classic’ trafficking involving the exchange of drugs and money, but also to a manufacturing context:
(a)evidence of discovery of a firearm in the possession of an accused will be relevant if it can be linked to the offence with which the accused is charged;
(b)firearms are regularly an accoutrement of largescale drug trafficking;
(c)drug dealing is notoriously dangerous at any level, but may be thought to become more dangerous the larger the quantities, and associated sums of money, that are changing hands; and
(d)evidence of possession of a firearm in close proximity to drug paraphernalia may give rise to an inference that the firearm is a ‘tool of the trade’ of drug trafficking.[27]
[26](2018) 272 A Crim R 450; [2018] VSCA 135 (‘Arico’)
[27]Citing Arico (2018) 272 A Crim R 450, 466 [71], 468 [88], 470 [104] (Maxwell ACJ and Weinberg JA), 495 [263] (Priest JA); [2018] VSCA 135.
The respondent emphasised that the CCTV footage showed McNally handling the gun in the laboratory at the time he was engaged in manufacturing processes. It therefore demonstrated that he intended to provide himself with a level of security while undertaking these processes and strongly suggested that the gun was an accoutrement of drug trafficking. In support of this proposition, the respondent also referred to the trial judge’s description of the laboratory at the Horne St premises as being ‘no backyard operation’ and to the evidence pointing to McNally being ‘a professional manufacturer on a serious industrial level’.
Finally, the respondent relied on the trial judge’s ‘careful’ directions to the jury on this issue, which: explained that the evidence was admitted for a very limited purpose; identified that purpose, which was to prove that McNally had the necessary intention in relation to charges 15 and 16; instructed the jury that they must not allow prejudice to influence their deliberations, or say that because McNally had a gun, he must be guilty; and instructed the jury that they must not reason that because McNally had a gun, he was the kind of person who is likely to have committed the offences. The respondent submitted that in light of these directions, the probative value of the evidence about the gun was not outweighed by the danger of unfair prejudice.

(b) Analysis

The trial judge did not err in her treatment of the evidence about the firearm. The evidence that a loaded firearm was found at the Horne St premises, and that McNally handled the firearm while engaging in manufacturing processes in the laboratory, was capable of rationally affecting the jury’s assessment of the probability of a key fact in issue. That fact in issue was whether McNally intended to manufacture MDMA and methylamphetamine at the Horne St premises in quantities that were not less than a commercial quantity. The evidence about the firearm was circumstantial evidence that was capable of rationally affecting the jury’s assessment of this fact in issue. It was strongly suggestive that McNally was engaged in manufacturing activities that were of such a size and scale that he believed it was necessary to have a level of physical protection at the site of those activities. The trial judge was correct to rule that the evidence was admissible.
As to McNally’s submission that the evidence of the firearm should have been excluded under s 137 of the Evidence Act 2008, we reject that proposition. As with the evidence of McNally’s admitted prior offending, the trial judge was correct to conclude that any danger of unfair prejudice to McNally arising from the admission of the evidence did not outweigh its probative value. The trial judge gave the following relevant directions:
This evidence was admitted for a very limited purpose. It is important that you understand why it was put before you and how you may use it and how you must not use it. These are directions of law that you must follow. You will appreciate that one of the issues in the case against the accused McNally is whether he intended to manufacture the quantities alleged in the charges. That is, large commercial quantities of MDMA, methylamphetamine and P2P in relation to Wallan, Charges 1, 2, 3, and commercial quantities of MDMA and methylamphetamine in relation to Elsternwick, Charges 15 and 16.
… The prosecutor relies on the evidence of the gun as a piece of circumstantial evidence together with all the other evidence in the case to prove that the accused McNally had the necessary intention in relation to Charges 15 and 16 at Elsternwick. [The prosecutor] argued to you that the only reason that Mr McNally had a loaded shotgun was to provide a level of security that he considered necessary for what he knew himself to be doing, that is, manufacturing commercial quantities of MDMA and methylamphetamine at Elsternwick. [The prosecutor] submitted it showed that Mr McNally knew exactly what he was doing and that he intended to do it.
[Defence counsel] does not dispute that his client had the gun but he submits that it did not prove his client's intention at all. It is really a neutral factor.
You may use the evidence in relation to the gun if you choose to do so, as a piece of circumstantial evidence. That is, one bit of evidence along with the other evidence, to help you decide the issue of what the accused McNally knew or believed about how much he was manufacturing at Elsternwick and in particular what he intended.
It is only relevant to his state of mind and in particular whether he intended to manufacture the quantities alleged at Elsternwick. It is not relevant for any other reason and it is not relevant to the Wallan charges. You should keep the evidence about the gun in perspective. It is only one part of the evidence in the case against the accused McNally and you must decide the charges based on all the evidence relating to those charges.
Further, you must not use the evidence of the gun for any purpose other than assessing the accused McNally's state of mind in relation to the trafficking commercial quantity charges at Elsternwick. In particular, you must not allow any prejudice you may feel arising from the evidence about the gun to influence you. You must not say to yourselves, well, he had a gun so he must be guilty. You must not reason that he had a gun so he is the kind of person who is likely to have committed the charged acts. That would be an improper inference. Your decision must be based only on the evidence given in the trial, not on any assumptions that you might make as to the sorts of people who commit crimes.
Again, these directions were clear about the ways in which the jury could, and could not, use the relevant evidence. With the benefit of these directions, any prejudicial effect of the evidence about the firearm did not outweigh its probative value. The trial judge was correct to decline to exclude the evidence under s 137 of the Evidence Act 2008.

McNally ground 3: Directions on intention

The trial judge directed the jury that in order to return a verdict of guilty in relation to charges 1 to 3 (the trafficking charges concerning the drugs found at the Wallan premises) and/or charges 15 and 16 (the trafficking charges concerning the drugs found at the Horne St premises), the prosecution needed to prove beyond reasonable doubt that McNally:
(a)manufactured the drug in question at the location alleged;
(b)intended to manufacture that drug at that location;
(c)manufactured not less than a commercial quantity of that drug (in relation to charges 15 and 16) or not less than a large commercial quantity of that drug (in relation to charges 1 to 3); and
(d)intended to manufacture at least a commercial quantity of that drug (in relation to charges 15 and 16) or a large commercial quantity of that drug (in relation to charges 1 to 3).
In relation to the final of these four elements, the trial judge further directed the jury as follows:
You do not need to be satisfied that he intended to manufacture a large commercial quantity or a commercial quantity of the pure drug, only that he intended to manufacture at least that quantity of a mixture containing the drug which would make any amount of the drug in that mixture a large commercial quantity or a commercial quantity. In other words, the relevant threshold mixed quantity.
If you find that McNally either knew or believed that he would manufacture at least that quantity of a mixture containing the drug, which would make any amount of the drug in that mixture a large commercial quantity or commercial quantity, as the case may be, or that he knew or believed there was a significant or real chance that he would manufacture at least that quantity of a mixture containing the drug which would make any amount of the drug in that mixture a large commercial quantity or a commercial quantity, you could infer that he had the intention to manufacture a large commercial quantity or a commercial quantity of that drug.
… For example, if you find that the accused McNally knew or believed that he was making a mixture weighing at least 1 kilogram which would contain some amount of MDMA or that he knew there was a significant or real chance that he was making a mixture weighing at least a kilogram which would contain some amount of MDMA you could infer that he intended to manufacture a large commercial quantity of MDMA, that is Charge 1.

(a) Submissions

McNally submitted that the trial judge erred in giving these directions about the element of intention. He accepted that the concept of manufacturing involves a process.[28] However, he submitted that it is the intention of the manufacturer in relation to the end product of that manufacturing process which must be established beyond reasonable doubt. Intending to make a mixture cannot be conflated with intending to manufacture a large commercial quantity or commercial quantity of the relevant drug, particularly where the evidence left open the reasonable possibility that the manufacturing process was not complete.
[28]McNally’s counsel pointed out that the trial judge had proceeded on the basis that the definition of ‘manufacture’ in s 4(1) of the DPCS Act, which states that ‘manufacture includes the process of refining, manipulating and mixing any poison or controlled substance’, applied. However, the parties conceded that this was incorrect because s 70(2) of the DPCS Act provides that the interpretation of ‘manufacture’ in s 4(1) does not apply to Part V of the DPCS Act. Nevertheless, there was no suggestion that the basis on which the trial judge had proceeded had resulted in any error.
McNally advanced the example of a person engaged in the manufacture of MDMA, for which: a large commercial quantity is 750 grams, or 1 kilogram when measured as a mixture of MDMA and another substance; and a commercial quantity is 100 grams, or 500 grams when measured as a mixture of MDMA and another substance. He submitted that a manufacturer intending to manufacture less than a commercial quantity of MDMA might add a substance such as a nonpolar solvent to the starting drug as part of the manufacturing process. If more than 1 litre of the substance is added, the manufacturer would then be in possession of a mixture of MDMA and a substance that exceeded the threshold for a large commercial quantity of MDMA. But the fact that the manufacturer added more than 1 litre of the substance to the starting drug does not mean that the manufacturer intended to manufacture a large commercial quantity of MDMA, because the manufacturing process might not be complete at that point.
McNally applied this mode of reasoning to charge 15, which alleged that he had trafficked in not less than a commercial quantity of MDMA at the Horne St premises. The bulk of the net quantity of MDMA found at the Horne St premises was contained in a mixture of MDMA and substance that weighed 586.3 grams, in which the purity of MDMA was only 2.6 per cent (or 15.24 grams) of MDMA.[29] There was evidence that the process of manufacture involved a lot of liquids and solvents being added at various stages of the manufacturing processes, which would then be removed at later stages of the process. McNally submitted that unless the prosecution proved beyond reasonable doubt that he intended that the end result of the manufacturing process would be not less than a commercial quantity of pure MDMA, rather than that he was merely in possession of a mixture that weighed more than the commercial quantity threshold while in the process of manufacturing not less than a commercial quantity of MDMA, he was not guilty of that charge and, instead, was guilty of the unindicted offence of trafficking simpliciter.
[29]This is a reference to the liquid that was decanted from one of the two pieces of glassware in which the substances containing MDMA was found. The purity of the solid substances within those two pieces of glassware was much higher: see [165] below.
McNally also pointed to the applicable maximum penalties, being 15 years’ imprisonment for manufacturing simpliciter, 25 years’ imprisonment for manufacturing not less than a commercial quantity, and life imprisonment for manufacturing not less than a large commercial quantity of a drug of dependence. He submitted that the fact that these offences were capable of attracting such significant penalties meant that it was incumbent on the prosecution to prove what was in the mind of a person who was in the process of manufacturing something.
Finally, McNally accepted that no exception had been taken to the trial judge’s directions on this topic, but pointed to the fact that he had made a submission that he had no case to answer and that a number of these issues had been raised in support of that submission.
In response, the respondent first drew attention to the way this issue was raised by McNally as part of his no case submission. McNally had submitted that in order to prove his guilt, the prosecution needed to prove that he had manufactured a mixed quantity of each drug in a ‘usable form’ in a quantity above the relevant threshold, and that he intended to do so. The trial judge rejected these submissions, and the respondent submitted that she was correct to do so. Although McNally was not contending that the trial judge had erred in rejecting his ‘usable form’ submission, he was now advancing a different form of the same submission, which focused on the judge’s directions on intention. These directions were, the respondent submitted, also correct.
The respondent drew attention to the provisions of the DPCS Act containing the ‘mixed quantity regime’. In particular, the respondent pointed to the definitions in s 70(1) of ‘commercial quantity’ and ‘large commercial quantity’. Each of these definitions provides that where a drug of dependence is contained in or mixed with another substance[30] and the quantity of that mixture is not less than the quantity specified to be a ‘commercial quantity’ or ‘large commercial quantity’ of that drug, a ‘commercial quantity’ or ‘large commercial quantity’ means ‘any amount of that drug of dependence’.
[30]Substance is defined to include ‘material, preparation, extract and admixture’: DPCS Act, s 4(1).
The respondent referred to the decision of Nettle JA in R v Ahmed, where his Honour stated that ‘[t]he evident purpose of the legislation is to enable an offender to be charged in relation to a drug of dependence in a mixture by reference to the quantity of the mixture … no matter how small the quantity of the drug within the mixture and regardless of the remaining composition of the mixture’.[31] There was, the respondent submitted, no reason to consider that Parliament intended for the clear definition in s 70(1) to be qualified in the manner contended for by McNally. Parliament has clearly determined that ‘any amount’ of a drug of dependence will be sufficient in relation to the mixed quantity regime. Thus, if a person manufactures a drug of dependence, and through that process intentionally manufactures a mixed quantity of a substance containing the drug of dependence that exceeds the prescribed minimum quantities for a commercial quantity or a large commercial quantity of that mixed substance, that person will have manufactured, and intended to manufacture, a drug of dependence in a commercial quantity or a large commercial quantity as defined in s 70(1).
[31](2007) 17 VR 454, 461–2 [34] (Nettle JA); [2007] VSCA 270.
The respondent submitted that the alternative would be to require, in every case where the issue arises, expert evidence that the given quantity of a drug of dependence was in a sufficient purity and quantity to be ‘usable’. The line as to when this would be necessary in any given case would be unclear. Further, on this construction of the provisions, if a person was engaged in the trafficking of a drug of dependence by sale or exchange, they would meet the elements of the offence notwithstanding the low level of purity and small total amount of a drug of dependence in a mixed substance. But if a person was engaged in trafficking by manufacturing the substance in a mixed quantity, the relevant mens rea would not be made out. This could not be correct and would lead to different approaches depending on which definition of ‘trafficking’ was enlivened under s 70(1) of the DPCS Act. It would mean that in such circumstances, a ‘cook’ could not be found guilty of the more serious offence, but a courier could be. A construction that would enable a person to defend a trafficking charge on the basis that they manufactured a very large quantity of mixed substance but only intended to manufacture the relevant drug of dependence with a low level of purity (and therefore only in a small amount) would defeat the purpose of the mixed quantity legislative regime.
Where a mixed substance contains a relatively low level, and a small total amount, of a drug of dependence, the respondent accepted that this would potentially be relevant to the determination of penalty. The respondent referred to Trajkovski v The Queen, where Weinberg JA said that there was no reason in principle why the fact that a mixture contained only the most miniscule quantity of a drug of dependence should not be regarded as a significant factor to be taken into account in assessing the gravity of the offending.[32] This statement had been cited with approval in various subsequent cases.[33]
[32](2011) 32 VR 587, 611 [124] (Weinberg JA, Ashley JA agreeing 588 [1], Hargrave JA agreeing at 613 [143]); [2011] VSCA 170 (‘Trajkovski’).
[33]The respondent cited Kapkidis v The Queen [2013] VSCA 35, [23] (Maxwell P and Redlich JA), Taumoefolau v The Queen (2015) 253 A Crim R 508, 516 [26] (Hansen, Whelan and Beach JJA); [2015] VSCA 221, and Djordjic v The Queen [2018] VSCA 227, n 41 (Whelan, Beach and Kaye JJA).
Finally, the respondent emphasised that counsel for McNally had not taken exception to the trial judge’s directions on this issue.

(b) Analysis

The trial judge did not err in her directions to the jury about the approach to be taken to the question of whether McNally intended to manufacture at least a commercial quantity of the relevant drug (in relation to charges 15 and 16) or a large commercial quantity of the relevant drug (in relation to charges 1 to 3). Those directions, to which McNally’s counsel took no exception at trial, were consistent with the legislative scheme. The legislative scheme is designed to facilitate the proof of various serious drug offences where drugs are found as part of a mixed substance. Thus, Parliament has made clear that a commercial quantity and a large commercial quantity of a drug of dependence can be constituted by any amount of the drug, as long as: the drug of dependence forms part of a mixture with another substance; and the weight of that mixture is greater than the quantity specified for a mixture containing that drug in Schedule 11 of the DPCS Act.[34]
[34]DPCS Act, s 70(1) (definitions of ‘commercial quantity’ and ‘large commercial quantity’).

Consistently with the legislative scheme, in order to prove that a person intended to manufacture a commercial quantity or large commercial quantity of a particular drug of dependence that is found as part of a mixture, the prosecution must prove that the accused knew or believed (or knew or believed that there was a significant or real chance): that he or she was manufacturing a mixture containing an amount of the drug of dependence; and that the weight of that mixture would exceed the threshold for a commercial quantity or a large commercial quantity of that drug.
There is nothing in the legislative scheme that supports McNally’s submission that it was instead necessary for the prosecution to prove that he knew or believed that the end result of the manufacturing process would be a quantity of the relevant drug that would exceed the threshold for a commercial quantity or a large commercial quantity of the drug in its pure form. Any attempt to introduce the concepts of ‘end product’ or ‘usable form’ into the analysis is contrary to the mixed quantity regime, as elucidated by Nettle JA in R v Ahmed.[35]
[35](2007) 17 VR 454, 461–2 [34] (Nettle JA); [2007] VSCA 270.
As McNally conceded, the manufacture of a drug is an ongoing process. As the jury were ultimately directed, ‘manufacturing a drug of dependence means making a drug of dependence and includes all stages in that process, including, for example, manipulating and refining the drug’. The manufacturing process therefore includes any stage at which the drug forms part of a mixture that is largely composed of liquids or of other substances that will removed from the mixture before the end product is created. No doubt recognising that the operations of drug manufacturers might be interrupted at any stage of the manufacturing process, Parliament has chosen to enact definitions of ‘commercial quantity’ and ‘large commercial quantity’ that render immaterial the purity of a drug that is found within a mixed substance, as well as the purity of the drug that the manufacturer ultimately wished to derive from the manufacturing process. It would be entirely inconsistent with the legislative scheme, and indeed, would frustrate the scheme, to require the prosecution to prove that an accused intended to manufacture an end product comprising the drug in a pure form that exceeds the threshold applicable to pure drugs. To do so would conflate the requirements of the mixed quantity regime with the requirements of the regime that applies to drugs found in a pure form.
The purity of a drug found in a mixed substance, or which could be expected to ultimately be derived from that substance, therefore does not provide a defence to a manufacturing charge. However, as the respondent accepted, it will be relevant to any sentence that is ultimately imposed. As Weinberg JA recognised in Trajkovski, where a mixture contains an amount of a drug of dependence that would be unlikely to produce the deleterious effects normally associated with a much larger amount of that particular drug, it will be appropriate to take that fact into account in assessing the gravity of the offending.[36]

Conclusion on McNally’s application for leave to appeal

[36]Trajkovski (2011) 32 VR 587, 611 [124] (Weinberg JA, Ashley JA agreeing 588 [1], Hargrave JA agreeing at 613 [143]); [2011] VSCA 170.

Each of McNally’s proposed grounds of appeal is without merit. We will therefore refuse McNally leave to appeal.

Doble’s application for leave to appeal

Doble advances seven proposed grounds of appeal, which can be summarised as follows:
(a)The trial miscarried because the prosecution improperly invited the jury to convict on charges 15 and 16 on the basis that the MDMA and methylamphetamine found at the Horne St premises may have been manufactured somewhere other than Horne St, when this was not how the prosecution had opened and conducted the case (‘Doble ground 1’).
(b)The trial miscarried because, following Doble’s no case submission, the trial judge intervened and impermissibly reframed and broadened the Crown case in relation to charges 15 and 16 and ruled that the prosecution should be permitted to rely upon that new case (‘Doble ground 2’).
(c)The trial miscarried because the impermissible intervention of the trial judge following Doble’s no case submission resulted in a fundamental denial of natural justice that caused a substantial miscarriage of justice in relation to charges 15 and 16 (‘Doble ground 3’).
(d)The trial miscarried because the prosecution failed to disclose, adequately or at all, the reasoning process the jury ought to adopt to convict Doble on charges 15 and 23 (‘Doble ground 4’).
(e)The trial miscarried because the trial judge directed the jury that the agreement between McNally and Doble for the purpose of charges 15 and 16 did ‘not have to be to manufacture a commercial quantity of the pure drug, just to manufacture the threshold quantities of a mixture containing an amount of the drug’ (‘Doble ground 5’).
(f)The trial judge erred by permitting the lie Doble told police and/or the fact that he hid from police to be relied on as incriminating conduct (‘Doble ground 6’).
(g)The verdicts returned on charges 15 and 16 are illogical and repugnant to each other to the extent that they are unsafe and unsatisfactory because of their inconsistency (‘Doble ground 7’).[37]

Doble grounds 1 and 2: Basis of prosecution case and intervention of trial judge following no case submission

(a) Submissions

[37]An eighth proposed ground of appeal, which alleged that Doble’s convictions were unreasonable and/or could not be supported having regard to the evidence, was abandoned at the hearing.

Doble dealt with grounds 1 and 2 together. He submitted that prior to his no case submission, the prosecution had conducted its case on the basis that both the MDMA (relevant to charge 15) and the methylamphetamine (relevant to charge 16) had been ‘cooked’ at the Horne St premises.
In support of this submission, Doble pointed to the reference in the Summary of Prosecution Opening to the ‘large-scale hidden drug manufacturing operation’ at the Horne St premises, and to the following statements made by the prosecutor in opening the case to the jury:
(a)‘what was there was a sophisticated, it wasn’t a Grade 6 chemistry lab, it was a sophisticated drug manufacturing laboratory. Moreover, in Elsternwick it had been put behind some sort of a concealed wall’;
(b)‘the scene basically is two laboratories … one at Wallan which was Mr Sert’s property, the other — the other being two specific places but next to each other, drugs on each and lab equipment on each. The other being the one at Elsternwick and McNally, as you’ve heard him charged, McNally the Crown says was involved in both Wallan and Elsternwick. And then Doble, his charges, that which the Crown allege against him relate only to Elsternwick. So you’ve got two places at the same time, three people, I suppose McNally covers both, but then McNally and Sert for Wallan and McNally and Doble for Elsternwick. So it’s a pretty easy scene, but that’s how its structured. Because drugs the Crown says were being made at both places’;
(c)‘Wallan was Wallan. Another lab was developed as I indicated at Horne Street. That was for the purposes also of manufacturing these drugs … in Mr Doble’s case the Crown case is that first of all being the manager he was almost as integral to what was going on his premises as Mr McNally who was actually the cook. Mr Doble, the Crown case is, knew full well what was happening’;
(d)‘the only thing being done in these premises for the purposes of this case was the manufacture of these illicit drugs’;
(e)‘all of these things were actually found and the Crown says that each of these people intended or at least McNally and Doble intended what they were doing’;
(f)‘At 13 Horne Street when it was all over MDMA and methamphetamine were found in amounts over their thresholds respectively. I think I’ve already said, the case against Doble is that he permitted amongst other things McNally to do all this and that McNally did all this’; and
(g)‘The chemists then again at this address too did their looking around, these were analysed and found to be drugs of quantities over the threshold. Again, with the Crown saying well what was, what was precisely what these people intended’.
Doble submitted that the prosecution did not adduce evidence of the different ways either drug could be manufactured, or the different stages of those manufacturing processes, even after evidence about the difference between the ‘cooking’, ‘distilling’ and ‘precipitation’ phases of the manufacturing process had been extensively explored in his counsel’s cross-examination of Dr Ian Neely, one of the forensic chemists. Further, the second forensic chemist, Dr Christopher Verdon, gave evidence in cross-examination that he was unable to say where or when the solutions containing the MDMA and methylamphetamine found in the Horne St premises had been manufactured.
As part of his no case submission in relation to charges 15 and 16, Doble submitted that it was not open for the jury to be satisfied that either the MDMA or the methylamphetamine found at the Horne St premises was manufactured at the Horne St premises (in the context of the prosecution case that it had been ‘cooked’ at those premises). He submitted that the trial judge intervened following his no case submission, indicating that she had not understood the prosecution’s case to be that narrow, and that it was open to the jury to be satisfied of the manufacture element of the charges if they were satisfied beyond reasonable doubt that the precipitation phase occurred at the Horne St premises. Her Honour then asked the prosecutor whether it was alleged ‘that the cooking was occurring at Elsternwick’, which he confirmed. The judge raised with the prosecutor that he would have to meet the argument that the jury could not exclude the possibility that the manufacturing occurred at Wallan, to which the prosecutor responded that ‘[w]e’re saying the entire process is being done at Elsternwick’. Following a break, the prosecutor told the trial judge that the prosecution’s position was that the MDMA and the methylamphetamine were manufactured at the Horne St premises ‘in the sense that some process or processes were effected’ at those premises.
Doble submitted that the effect of all of this was that, over the objection of his counsel, the prosecution changed its case to allege two separate paths to conviction. In relation to charge 15 (on which he was convicted), the first was the path that the Crown had opened with, namely that the MDMA found at the Horne St premises was ‘cooked’ at those premises prior to 9 December 2019, pursuant to an agreement between McNally and Doble to this effect. The second was a new path, which was that the solution containing the MDMA was ‘cooked’ at the Wallan premises and carried in that form to the Horne St premises, following which Doble became aware of the existence and nature of the substance, Doble agreed with McNally that McNally would conduct the precipitation phase of the manufacturing process at the Horne St premises and Doble believed there was a real and substantial chance that the substance contained not less than a commercial quantity of MDMA.
Doble submitted that the second path was inconsistent with the prosecution case as opened. Further, the prosecution had not sought to elicit a basis for that suggestion from any witness. Doble said that he had not apprehended that such a suggestion would be made and had conducted his case accordingly. The prosecution should have been required to adhere to the case it had opened, rather than permitted to make a fundamental change to its case that resulted in irremediable prejudice to Doble and a substantial miscarriage of justice (in relation to Doble ground 1).[38] Further, the trial judge’s interference that had led the prosecutor to reformulate his case was productive of a substantial miscarriage of justice (in relation to Doble ground 2).[39]
[38]Citing Astbury v The Queen [2020] VSCA 132, [48]–[48], [67] (Kaye, Niall and Weinberg JJA), R v Tangye (1997) 92 A Crim R 545, 556 (Hunt CJ at CL, McInerney J agreeing at 562, Sully J agreeing at 562), Tran v The Queen (2000) 105 FCR 182, 203 [103], 204 [148] (Black CJ, Weinberg and Kenny JJ); [2000] FCA 1888.
[39]Citing Waters v The Queen [2011] VSCA 415, [103], [111] (Ashley JA, Weinberg JA agreeing at [140], Hargrave JA agreeing at [141]).
In response, the respondent submitted that the prosecution case at trial was that Doble had entered into agreements with McNally for McNally to manufacture not less than commercial quantities of MDMA and methylamphetamine at the Horne St premises. There was no requirement at law that the entirety of the manufacturing process had to occur at one location. Instead, as the judge directed the jury, it was necessary for some stage of the manufacturing process to have occurred at the Horne St premises.
The respondent submitted that there was nothing in the Summary of Prosecution Opening or the prosecutor’s opening address to the jury that limited its case to the position that the entirety of the manufacturing process occurred at the Horne St premises. The respondent accepted that there was some confusion in relation to this issue during the discussion on Doble’s no case submission, but submitted that the prosecutor ultimately clarified the position, and the trial judge observed that she had not understood the prosecution’s case to be limited to proving that the entirety of the manufacturing process occurred at the Horne St premises. In fact, whether a change in position had occurred was ‘neither here nor there’ as the point was that a considerable amount of the process had occurred over a number of days at the Horne St premises, and that case did not change.
Even if there was a change in position, the respondent submitted that it would have had no bearing on how Doble ran his case. Because the Crown was not required to prove that the entirety of the manufacturing process occurred at a single place, it would not have been a defence if the Crown could not exclude the reasonable possibility that a part of the process occurred at another location. Further, any such change of position did not occur at such a late stage that the conviction should not be allowed to stand.[40] Closing addresses had not been delivered. There was no application for a discharge of the jury, nor any application for the prosecution case to be reopened so that witnesses could be recalled for further cross-examination. In these circumstances, Doble should not be permitted to in effect wait for the jury verdicts, which ultimately included an acquittal on charge 16, and then complain of a change in the Crown case that warrants the remaining convictions now being set aside.[41]

(b) Analysis

[40]Citing King v The Queen (1986) 161 CLR 423, 432 (Dawson J); [1986] HCA 59.

[41]Citing R vChaouk (2013) 40 VR 356, 370 [9] (Nettle AP, Buchanan and Osborn JJA); [2013] VSCA 99, and Abernethy v The Queen (2020) 282 A Crim R 513, 531 [96] (Niall and Emerton JJA); [2020] VSCA 96.

We accept the respondent’s submission that the prosecution did not open and conduct its case on the narrower basis for which Doble contends. The portions of the Summary of Prosecution Opening and the prosecutor’s address to the jury on which Doble relies do not make good the proposition that the prosecution case was that the entirety of the processes by which the MDMA and the methylamphetamine found at the Horne St premises were manufactured had occurred at the Horne St premises. They establish no more than that the prosecution’s position was that drug manufacturing was occurring in two different laboratories, one of which was a large scale hidden operation at the Horne St premises with which Doble was associated and the other of which was set up at the Wallan premises.
Even if we had taken the view that the prosecution had conducted the Crown case prior to Doble’s no case submission on the narrower basis for which Doble contends, we would still not have been persuaded that any subsequent expansion of the case resulted in a substantial miscarriage of justice. Doble has not explained what he might have done differently had it been made clear from the outset that the prosecution was contending that it was possible that only some part or parts of the manufacturing process occurred at the Horne St premises. Once this position became clear, he did not seek to have any witness recalled or to have the jury discharged. He did make any submission to the trial judge that he had suffered irremediable prejudice that warranted a discharge of the jury. We are not satisfied that there was any irremediable prejudice. Nor are we satisfied that the questions asked or the observations made by the trial judge during the discussion following the no case submission resulted in any substantial miscarriage of justice.

Doble grounds 3 and 5: Directions on breadth of agreement required to convict on charges 15 and 16

It is convenient to deal with proposed grounds 3 and 5 together, given that both concern the following aspect of the judge’s charge in relation to charges 15 and 16:
The agreement [between McNally and Doble] does not have to be to manufacture a commercial quantity of the pure drug, just to manufacture the threshold quantities of a mixture containing an amount of the drug.
It will be recalled that this particular direction preceded the direction in relation to intention that McNally seeks to challenge by his proposed ground 3. By that direction, the trial judge instructed the jury that they did not need to be satisfied that Doble intended McNally to manufacture a commercial quantity of the pure drug, only that he intended McNally to manufacture at least that quantity of a mixture containing the drug which would make any amount of the drug in that mixture a commercial quantity.[42] Both directions formed part of the judge’s directions about the elements of the offence that was the subject of charges 15 and 16. Both flowed from the trial judge’s rejection of McNally’s contention in support of his no case submission that the references in the legislative scheme to a ‘mixed substance’ should be interpreted as a mixed substance containing the relevant drug in ‘usable form’.

(a) Submissions

[42]See [72] above.

By proposed ground 3, Doble contended that the trial judge should not have directed the jury that they needed to be satisfied that there was an agreement to manufacture the threshold quantities of a mixture containing an amount of the relevant drug, because this suggestion had formed no part of the prosecution case. Indeed, such a suggestion was said to be an affront to commonsense. Doble contended that there was therefore a fundamental denial of natural justice that had resulted in a substantial miscarriage of justice.
By proposed ground 5, Doble contended that the trial miscarried as a result of the direction, which was erroneous. Doble submitted that the trial judge erred in refusing his counsel’s request to amend the direction when it was proposed to counsel, because the effect of the direction was to recast and broaden the Crown case ‘to permit the [commercial quantity] element of the alleged agreement as having been formed subsequently to an earlier agreement to traffick by manufacture in that drug of dependence’. He submitted that the factual matrix of the Crown case did not permit such reasoning and that any invitation to undertake such reasoning was no more than an invitation to the jury to speculate.
In response, the respondent emphasised that the issue underpinning these directions arose in the context of McNally’s no case submission. The respondent submitted that the approach the trial judge took to the directions flowed from her decision to reject the submissions about the proper construction of the legislative scheme made by McNally. That decision was correct. To explain why that was so, the respondent referred to and repeated its submissions in response to McNally ground 3 (summarised in paragraphs 79 to 82 above). The respondent submitted that Doble ground 5 must therefore fail.

In response, the respondent submitted that the trial judge was correct to permit both pieces of evidence to go to the jury as potential incriminating conduct. Evidence of conduct that is explicable by more than one reasonable argument will usually pass through the gateway of s 20(1)(b) of the Jury Directions Act 2015.[48] There was no error in her Honour’s approach to the question of whether either piece of evidence passed through that gateway. The judge having ruled that the evidence passed through the gateway, it was then open to Doble to seek to persuade the jury that there was an explanation for his conduct other than it being an implied admission of guilt.
[48]Citing DPP v Lynn [2024] VSCA 62, [116], [121] (Emerton, Taylor and T Forrest JJA). See n 44 above.
As to the argument that it was illogical for the two pieces of evidence to be incriminating conduct in relation to the charges as a whole, rather than any particular element or elements of the charges, the respondent submitted that it was unremarkable for evidence that was said to be evidence of incriminating conduct to relate to all of the charges on the indictment. The prosecution’s position was that Doble was hiding, and had lied to police, because he knew he was involved in high level drug manufacturing in the clandestine laboratory at the Horne St premises. It was not necessary for him to know precisely what offence he was guilty of committing, and it was artificial to suggest that the evidence was not an implied admission of guilt to the offences because it did not concern the quantities in which the drugs were being manufactured.
In relation to Doble’s criticism of the trial judge’s ruling insofar as it concerned the evidence that he had been found on the roof under the air conditioner, the respondent submitted that it was clear from the trial judge’s ruling that the matters that informed her Honour’s consideration of the evidence of the lies also informed her consideration of this issue. The portion of the ruling that Doble described as ‘succinct’ dealt with the alternative explanation that Doble’s counsel had advanced for why he was under the air conditioner. In that portion of the ruling, the trial judge had correctly observed that there was no evidence to support that alternative explanation.
Finally, the respondent emphasised that having permitted the prosecution to rely on the two pieces of evidence as evidence of incriminating conduct, the trial judge gave appropriate protective directions during her charge.

(b) Analysis

We reject Doble’s arguments in support of proposed ground 6.
There was nothing illogical about treating the two pieces of evidence as being capable of amounting to evidence of an implied admission that Doble was guilty of each of the charges on his indictment, rather than an implied admission of guilt of only one of those charges or an implied admission of any specific elements of those charges. We accept the respondent’s submission that it was open to the prosecution to seek to rely on the evidence as evidence of incriminating conduct on the basis that Doble was hiding, and had lied to police, because he knew he was involved in high level drug manufacturing in the clandestine laboratory at the Horne St premises.
The judge did not err in her approach to assessing whether either of the two pieces of evidence, on the basis of the evidence as a whole,[49] were reasonably capable of being viewed by the jury as evidence of incriminating conduct. Nor did she err in her determination of that question. The surrounding evidence was significant. It included evidence that Doble had control over the Horne St premises, including because he held the only key to the premises; that Doble had been inside the clandestine laboratory and viewed what appeared to be drug manufacturing activities; that the set up in the laboratory was a sophisticated manufacturing operation; and that large quantities of various drugs had been found in the Horne St premises. Viewed in the context of all of the evidence, the trial judge was correct to determine that each of the two pieces of evidence was reasonably capable of being viewed by the jury as evidence of incriminating conduct. Neither piece of evidence was ‘intractably neutral’, in the sense that a rational jury could not, on the whole of the evidence, decide between an innocent explanation and an incriminating explanation for the conduct.[50]
[49]Jury Directions Act 2015, s 20(1)(b): see n 44 above.
[50]See DPP vScriven [No 4] [2015] VSC 220, [23]–[27] (Maxwell P), cited in DPP v Lynn [2024] VSCA 62, [120] (Emerton P, Taylor and T Forrest JJA).
As to the trial judge’s specific treatment of the suggested innocent explanation for Doble being found on the roof under the air conditioner, the judge was correct to observe that there was no evidence to support this suggestion. In any event, the proffered innocent explanation for Doble’s conduct was not so inherently likely that a jury could not properly regard that conduct as evidence of guilt.[51]
[51]See Cookson (a pseudonym) v The King [2024] VSCA 289, [141] (McLeish, Boyce and Kaye JJA).
Further, in charging the jury, the trial judge gave a detailed account of the alternative innocent explanations for each piece of conduct, as well as both the mandatory direction on the use of evidence of incriminating conduct provided for by s 21 of the Jury Directions Act 2015 and the additional (non-mandatory) direction on incriminating conduct provided for by s 22.
In relation to the evidence that Doble was found under the air conditioner, the judge said the following:
The prosecution argues that you can use the evidence … as evidence that he believed that he had committed the offences with which he is charged …
You may only use the evidence in this way in relation to a charge, any charge that you are considering, again do it charge by charge to decide whether you can use it that way, but you can only use it in relation to a charge in that way as incriminating conduct if you first find that the conduct occurred and secondly, find that the only reasonable explanation of the conduct is that the accused believed that he had committed the charge you are considering.[52]
There has not been any dispute about the first matter that the conduct occurred. There is a dispute about the second matter, the explanation for the conduct. You will recall that the accused said in his record of interview that he had gone to the roof because he had heard some noise and it was a vantage point and you also heard evidence that it was a very hot day. You also heard evidence that the air conditioning unit was quite old, but whatever you make of that.
[Defence counsel] argues there was no reason for Mr Doble to hide because the evidence from the police officer Dean was that people were free to leave to 7 to 12 Horne Street in between the execution of the search warrant at 13 Horne Street in which the door was forced open, you will recall that, with necessarily some noise you would think, and the execution of the search warrant at 7 to 12. In other words, that the accused could have left. That is what [defence counsel] argues.
Further, [defence counsel] argues that the police could have easily ascertained the accused Doble’s connection to both addresses. It was not a secret that he was living at 7 to 12 Horne Street and they could easily have found that he had rented 13 Horne Street, so, there was no point in hiding. So [defence counsel] argues that there is an explanation consistent with innocence for why Mr Doble was found on the roof under the air conditioner.
It is for you to assess the evidence. If you think it is reasonably possible that the accused was under the air conditioner for some reason other than hiding from the police, then clearly you can not use it against him. Further, even if you are satisfied beyond reasonable doubt that the accused Doble was hiding from the police, if you think it is reasonably possible that he was hiding for a reason other than his belief in his guilt of the charge you are considering, then you must not use it in the way the prosecution argues in relation to that charge.
Even if you find that the accused did believe that he had committed an offence I must warn you that you must still consider all the evidence when deciding whether the prosecution has proved the accused’s guilt beyond reasonable doubt of that offence. Further, you should keep the evidence in perspective. It is only one part of the evidence in the case against the accused Doble and you must decide the case on the basis of all the evidence relating to any particular charge you are considering.[53]
I also need to give you this warning … There are all sorts of reasons why a person might behave in a way that makes them look guilty.[54] This means that the accused Doble may have hidden from the police, if you find that that is what he was doing, even though he is not guilty of the offences.[55]
Even if you think that his conduct makes him look guilty that does not necessarily mean that he is guilty.[56] You are the people who have to decide on the basis of all of the evidence whether he is guilty of any particular charge.
[52]This is the mandatory direction on the use of evidence of incriminating conduct provided for by s 21(1)(a) of the Jury Directions Act 2015.
[53]This is the mandatory direction on the use of evidence of incriminating conduct provided for by s 21(1)(b) of the Jury Directions Act 2015.
[54]This is the optional additional direction on incriminating conduct in s 22(a) of the Jury Directions Act 2015.
[55]This is the optional additional direction on incriminating conduct in s 22(b) of the Jury Directions Act 2015.
[56]This is the optional additional direction on incriminating conduct in s 22(c) of the Jury Directions Act 2015.
The trial judge gave a similar direction in relation to the evidence of Doble’s lies during his record of interview.
These directions appropriately reinforced the limited ways in which the jury was entitled to use the two pieces of evidence as evidence of incriminating conduct.

Doble ground 7: Inconsistent verdicts

By his final proposed ground, Doble contends that the different verdicts returned by the jury on charges 15 and 16 are illogical and repugnant to each other to the extent that they are unsafe and unsatisfactory because of their inconsistency.

(a) Submissions

Doble submitted that the only distinction between the evidence relevant to charges 15 and 16 was the locations in which the MDMA and the methylamphetamine were found within the Horne St premises. He submitted that:
(a)The MDMA was found on 9 December 2019 in two containers in a fridge outside the clandestine laboratory. One container was a conical flask sealed with a stopper and the other was a glass jar sealed with aluminium foil pressed over the opening and around the neck of the jar.
(b)The methylamphetamine was found on 10 December 2019 after the discovery of the clandestine laboratory. It was in open containers inside the laboratory, one of which was on the work bench and the other of which was on the floor, with tape attached to the neck of the flask.
In circumstances where the methylamphetamine was found inside the clandestine laboratory and the MDMA was found outside the laboratory, the different locations did not, Doble submitted, allow for a logical reasoning of guilt on the charge concerning the MDMA and an acquittal on the charge concerning the methylamphetamine. It was illogical for the jury to have reasoned that it was less likely that the methylamphetamine was manufactured in the clandestine laboratory at the Horne St premises than the MDMA.
Further, Doble submitted that the jury could not have distinguished between the two charges on the basis of the evidence of the conversation between McNally and Doble concerning potential prices at which the ‘M’ could be sold. Although one of the covert operatives had given evidence during cross-examination that he was aware of MDMA being referred to as ‘M’, the prosecutor had expressly told the jury that there was no suggestion that ‘M’ related to any particular drug, and that this was a matter about which there was no evidence. The prosecution’s position, repeated by the judge in her charge, was that Doble’s reference to ‘M’ was a reference to some type of illegal drug, but was not a reference to any particular drug.
Doble also pointed to a statement made by the trial judge during a discussion with counsel prior to closing addresses to the effect that it was ‘very unlikely’ that the jury would find Doble guilty of just one of charges 15 and 16. Finally, he submitted that the prosecution had opened its case on the basis that charges 15 and 16 were ‘identical evidentially’. In these circumstances, the different verdicts on charges 15 and 16 were said to be an affront to logic and commonsense and to strongly suggest a compromise of the performance of the jury’s duty.[57]
[57]Citing MacKenzie v The Queen (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ, Dawson and Toohey JJ agreeing at 351); [1996] HCA 35 (‘MacKenzie’).
At the hearing, in response to an argument that the different verdicts could be justified on the basis of the different purities and weights in which the two drugs were found, Doble submitted that the jury could not have distinguished between the charges on this basis because the purities and weights of the MDMA found outside the laboratory and the methylamphetamine found inside the laboratory demonstrated that each was waste or the byproduct of a manufacturing process.
The respondent emphasised that any submission that jury verdicts are inconsistent should be approached as a matter of ‘logic and reasonableness’ and with caution.[58] If there is a proper way by which this Court could reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion should generally be accepted.[59]
[58]Citing Schliefert v The King [2024] VSCA 197, [37] (Priest, Taylor and Boyce JJA).
[59]Citing MacKenzie (1996) 190 CLR 348, 367 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35.
The respondent submitted that there was a clear, logical pathway of reasoning for the jury to have reached its verdicts on charges 15 and 16:
(a)There was strong circumstantial evidence that Doble was aware that McNally was manufacturing drugs of dependence at the Horne St premises, as well as clear evidence that Doble exercised control over both the Horne St premises and the adjoining premises, and that he observed and inspected the fake wall and clandestine laboratory set up within the Horne St premises.
(b)There was evidence about the different quantities and purities of the MDMA and methylamphetamine located at the Horne St premises. The MDMA was found in larger quantities and in higher levels of purity, consistent with a process of decantation. Further, the MDMA was found inside a freezer, and there was evidence that freezing formed part of the process of manufacture through the process of precipitation. In contrast, the methylamphetamine was found in smaller quantities and lower purities in different locations, including inside a cupboard.
In written submissions, the respondent also relied on the evidence of McNally and Doble’s recorded conversation about the potential sale of ‘M’, together with the evidence given by the covert operative that he was aware of MDMA being described as ‘M’, and that he could not recall any occasion on which he had heard methylamphetamine being referred to as ‘M’. However, the respondent abandoned reliance on this evidence to explain the verdicts at the hearing. The respondent accepted that the prosecutor had expressly disavowed reliance on the evidence of the covert operative to establish that the reference to ‘M’ in the conversation between McNally and Doble was a reference to any particular drug.
The respondent also relied on the direction the jury received to consider each charge separately. The respondent submitted that the verdicts indicated that ultimately the jury were satisfied to the criminal standard that there was an agreement between McNally and Doble in relation to the manufacture of not less than a commercial quantity of MDMA, but were not so satisfied in relation to a separate agreement to manufacture methylamphetamine. The jury were, however, satisfied that McNally had himself engaged in a process of manufacturing the methylamphetamine at the Horne St premises, finding him guilty of charge 16. Such an approach was open on the evidence and was not illogical or unreasonable.

(b) Analysis

When considering a complaint of inconsistent verdicts based on factual inconsistency, the test is one of logic and reasonableness. Doble must satisfy the court that no reasonable jury applying their minds properly to the facts could have given the verdicts that they did.[60] This test is not easily satisfied.[61]
[60]MacKenzie (1996) 190 CLR 348, 366, 368 (Gaudron, Gummow and Kirby JJ, Dawson and Toohey JJ agreeing at 351); [1996] HCA 35.
[61]See, eg, Booth v The King [2024] VSCA 318, [126] (Beach, Kennedy and Orr JJA).
If there is a proper way by which purportedly inconsistent verdicts may be reconciled, resulting in a conclusion that the jury properly performed their function, that conclusion will generally be accepted. If there is some evidence to support the verdict of guilt that is said to be inconsistent with the acquittal, it is not this Court’s role to substitute its own opinion of the facts for one which was open to the jury.[62]
[62]MacKenzie (1996) 190 CLR 348, 367 (Gaudron, Gummow and Kirby JJ, Dawson and Toohey JJ agreeing at 351); [1996] HCA 35.
It is not correct, as Doble submitted, that the only distinction between the evidence in relation to the substances containing the two drugs that were found at the Horne St premises concerned the different locations in which the substances were found within the premises. The evidence also established that the MDMA and the methylamphetamine were found in different states, and different quantities and purities.
The substances containing the MDMA were found in a jar and flask located in the freezer of a fridge in a room at the Horne St premises, which was outside the clandestine laboratory. The jar was described in the police log of exhibits as a ‘glass jar covered in aluminium foil containing brown liquid and solid’ and the flask was described as a ‘side arm flask with rubber stopper attached containing brown liquid and solid’.
Dr Verdon gave evidence about his analysis of the substances in the jar and flask, which contained liquid and solid material. The total net quantity of these substances was 621.3 grams. The purity of the MDMA in the solid material was high: 88 per cent in the case of the jar and 86 per cent in the case of the flask. Dr Verdon said that he believed that the state of the substances reflected a stage near the end of a manufacturing process, during which MDMA was being converted from a liquid to a solid form, which is easier to handle. He said that some type of hydrochloric acid had been added to the liquid in the jar, causing the MDMA that was dissolved in the liquid to become a solid on the bottom or sides of the jar, through a precipitation process. This solid form was the desired end product. At the end of the process, the solid could be scraped out, dried out and, for example, put into bags. Dr Verdon said that he believed the jar and the flask were in the freezer to enhance the precipitation part of the manufacturing process, by chilling the liquid form of the MDMA. He could not say how long they had been in the freezer, but said that for the amount of substance that was found, the precipitation process would have taken no longer than 12 to 14 hours to complete.
In contrast, the substances containing methylamphetamine that were found at the Horne St premises comprised a smaller net quantity (453.3 grams), containing methylamphetamine at much lower levels of purity: ranging from 3.5 per cent to 31 per cent. Further, the substances containing methylamphetamine were dispersed amongst multiple receptacles found in different locations within the premises. None of the substances was found in a state that was indicative of any particular stage of a manufacturing process, such as a precipitation process.

Contrary to Doble’s submissions, most of the receptacles containing the methylamphetamine, like the MDMA, were found outside the clandestine laboratory. Four of the seven receptacles were located in a cupboard at the end of a hallway. Three of these items were located inside a cardboard box on the floor of the cupboard, which contained a variety of objects. The first of the items was a 250 ml glass bottle containing brown liquid and solid material weighing 109.4 grams, which was 25 per cent pure methylamphetamine; the second was a zip lock bag containing solid material weighing 33.9 grams, which was 21 per cent pure methylamphetamine; and the third was a zip lock bag containing white crystalline solid material weighing 10.5 grams, which was 3.5 per cent pure methylamphetamine. The fourth item found outside the laboratory was located on the floor of the cupboard. It was a plastic container covered in Glad Wrap containing brown solid material weighing 5.6 grams, which was 29 per cent pure methylamphetamine.
The three remaining items containing methylamphetamine, each of which was found inside the clandestine laboratory, were: a press sealed plastic bag containing white solid material weighing 30.9 grams, with a purity of 31 per cent methylamphetamine, which was located on the floor inside a white tub; a glass side arm flask with tape attached that contained liquid weighing 136.3 grams, with a purity of 6 per cent methylamphetamine, which was located on the floor under a table; and a 375 ml ‘Bundaberg’ glass bottle that was open and contained liquid weighing 126.7 grams, with a purity of 3.5 per cent methylamphetamine, which was located on top of a bench.
Dr Verdon could not age the substances containing methylamphetamine that were in the bottle and plastic container found in the cupboard outside the laboratory, or indicate whether they had been manufactured on the premises or brought from somewhere else. In relation to the material in the zip lock and pressed sealed bags found both inside and outside the laboratory, Dr Verdon said that these substances were stable compounds that could have been manufactured as long as two or three years ago. The bags created a stable airtight environment and prevented spillage. Dr Verdon accepted that methylamphetamine could be traded in these types of bags. As for the liquid substances in the two pieces of glassware that were found inside the laboratory, Dr Verdon described the levels of pure methylamphetamine in each as relatively low.
We reject Doble’s submission that the different purities and weights of the substances containing MDMA and methylamphetamine are of no moment because both the substances containing MDMA and the substances in the glassware in the laboratory containing methylamphetamine were waste products. This submission mischaracterises the evidence of Dr Verdon. While Dr Verdon accepted that the substances containing methylamphetamine in the glassware in the laboratory may have been waste products, his evidence in relation to the substances containing MDMA in the jar and flask in the fridge was different. Dr Verdon said that the jar and flask held both liquids and solids, and that the liquid, once decanted, would be consistent with being waste, but he did not suggest that the contents of the jar and flask otherwise contained waste.
We consider that there was a clear qualitative difference between the evidence in relation to the substances containing the MDMA and the evidence in relation to the substances containing the methylamphetamine. In a circumstantial case such as this, in which a finding of guilt required the jury to draw an inference from the available evidence, this qualitative difference in the state of the evidence was potentially significant. Based on the evidence, the jury may have reasoned that there was a stronger basis to infer that Doble had agreed with McNally that McNally would manufacture a commercial quantity of MDMA at the Horne St premises than to infer that Doble had made such an agreement with McNally in relation to the manufacture of a commercial quantity of methylamphetamine. As we have indicated, the substances containing MDMA were found in a freezer, which suggested the final stage of a manufacturing process (despite the freezer being located outside the clandestine laboratory). In contrast, the methylamphetamine was found in various receptacles and locations that were not indicative of any particular stage of a manufacturing process. Further, the total quantity of the substances containing the MDMA exceeded the total quantity of the substances containing the methylamphetamine, and the purity of the MDMA in those substances was much higher than the methylamphetamine (up to 88 per cent, in comparison to up to 31 per cent).
In these circumstances, we are not satisfied that no reasonable jury, applying their minds properly to the facts of this case, could have convicted Doble on charge 15 and acquitted him on charge 16. The jury were instructed to give separate consideration to each charge, and clearly did so. Given the differences in the evidence that supported each charge, we do not regard the verdicts as an affront to commonsense or logic. To the contrary, the evidence provides a basis on which the jury could have entertained a reasonable doubt about whether they could infer that it was part of Doble’s agreement with McNally that McNally was to manufacture at least a commercial quantity of methylamphetamine at the Horne St premises, but overcome any such doubt in relation to McNally’s manufacture of a commercial quantity of MDMA at the premises.
Proposed ground 7 is without merit.

Conclusion on Doble’s application for leave to appeal

For the reasons we have set out above, each of Doble’s proposed grounds of appeal is without merit. We will therefore refuse Doble’s application for an extension of time within which to seek leave to appeal.

Conclusion

McNally’s application for leave to appeal will be refused; and Doble’s application for an extension of time within which to seek leave to appeal will also be refused.

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[2025] VSCA 231

19 September 2025