R v Anderson - [2004] SASC 201

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ANDERSON
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice White)
13 July 2004
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
TAKING PART IN MANUFACTURE - SUFFICIENCY OF EVIDENCE
The appellant appealed against his conviction following a trial in the District Court on a charge of taking part in the manufacture of methylamphetamine - when police officers raided a suburban house, the appellant and other men were found sitting around the kitchen table, upon which a folder containing information as to the manufacture of methylamphetamine was placed - the folder was closed - chemicals and equipment in the house, including empty packets which had contained Sudafed, indicated that a process of manufacture of methylamphetamine was in progress - held on appeal that, on the whole of the evidence, there was no cogent evidence to link the appellant with that process, and his bare presence in the kitchen, together with the fact that there was some methylamphetamine under his fingernails, did not provide a sufficient evidentiary basis to justify the conclusion that guilt had been established beyond reasonable doubt - conviction quashed - appeal allowed.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
The appellant was tried jointly with another on a charge that they knowingly took part in the manufacture of methylamphetamine, a drug of dependence - the appellant appealed against his conviction, arguing that there had been a miscarriage of justice by reason of the fact that the appellant was tried jointly with the other person - he contended that the prejudice arose by reason of the fact that the case against the other offender was strong, whereas the case against the appellant was said to be weak - he further argued that the co-offender's statement to the police contained a statement prejudicial to the appellant's case - held that in the circumstances, directions given by the trial judge adequately addressed the possibility of prejudice - appeal allowed on other grounds.
Webb v R (1994) 181 CLR 41; R v Harbach (1973) 6 SASR 427; R v Collie, Kranz and Lovegrove (1991) 56 SASR 302; R v Demirok [1976] VR 244; R v Glover (1987) 46 SASR 310, considered.

R v ANDERSON
[2004] SASC 201
Court of Criminal Appeal: Doyle CJ, Perry and White JJ

DOYLE CJ I would allow the appeal, quash the conviction and direct a judgment and verdict of acquittal to be entered. I agree with the reasons given by Perry J for so ordering.
PERRY J The appellant and Wanda Elsayed were convicted following a trial before a judge and jury in the District Court on a joint charge that on or about 13 March 2002 at Seaton they knowingly took part in the manufacture of methylamphetamine, a drug of dependence, contrary to s 32(1)(b) of the Controlled Substances Act 1984.
There are two grounds of appeal:
1.That the trial judge erred in failing to order that the appellant be tried separately from Elsayed.
2.That the verdict is unreasonable or cannot be supported on the evidence.
Originally, the appellant and Elsayed were charged with four others, Robert Gawel, Jeff Stone, Nicholas George Zambakidis and Merryn Banks. Before the commencement of the trial, the Crown entered a nolle prosequi with respect to the other accused.
Background
At about 5.30 pm on Wednesday 13 March 2002, police officers attended at Unit 1, 13 Morley Road, Seaton. Those premises were leased to and occupied by Elsayed.
When they arrived, the police officers saw that both the front screen door and the main door into the house were open. As they entered, they saw Elsayed kneeling on the floor inside the doorway. She appeared to be manipulating or moving floor boards inside the entrance.
After a brief conversation between one of the police officers and Elsayed, the police officers entered the kitchen. Four men were sitting around the kitchen table. They were the appellant, Gawel, Stone and Zambakidis. Another woman, Ms Banks, was standing in the kitchen.
Other police officers then entered through the back door. The police officers began a search of the premises.
In a cupboard in the pantry, a conical shaped flask was found with some liquid in the bottom and coffee filter papers in the top. Suspecting that these items might be associated with the manufacture of drugs, the police officers made arrangements for members of the Drug and Organised Crime Investigation Branch of the police force to attend.
When they arrived a short time later, a more intensive search ensued. This yielded a number of items commonly associated with the clandestine production of amphetamines. They included:
(a)In kitchen cupboards, a container of ethanol, pseudoephedrine and paracetamol, and separately, a container of pseudoephedrine and paracetamol.
(b)In a kitchen drawer, empty pharmaceutical packets for tablets from which pseudoephedrine could be extracted.
(c)On the kitchen floor, chemical glassware in a bag.
(d)On the kitchen table, unused coffee filter papers, which matched the filter paper found in the conical shaped flask found in a cupboard.
(e)On the kitchen bench a gas bottle and burner suitable for use in the manufacture of methylamphetamine.
On the kitchen table, police also found a red folder which contained a number of documents. Contained in the documents was information on the preparation of a variety of illicit substances. This included information as to the manufacture of methylamphetamine, more particularly its manufacture from tablets such as Sudafed, a pharmaceutical preparation available from chemist shops.
Elsewhere in the house, police located other chemistry books.
In a rubbish bin, police found nine empty packets of Sudafed, together with 24 empty blister packs of tablets.
Pseudoephedrine may be extracted from Sudafed tablets using a solvent such as methylated spirits. The pseudoephedrine can then be converted into methylamphetamine by use of hypo-phosphorous acid or other chemicals such as iodine.
A tin with iodine stains on it was found in the house, and a bottle of methylated spirits was found in the wardrobe in the main bedroom.
In the main bedroom, the police found a silver case containing a pair of rubber latex gloves. On the inside of the left hand glove there was found a mixture of DNA from four individuals. The DNA was not attributable to any of the persons in the house at the time of the police raid, with the possible exception of the appellant.
It was found that the DNA profile from the gloves was 85,000 times more likely to match the DNA profile of the appellant if he had left the DNA, than of any other unknown person who might have left it.
That may appear to be an impressive statistic. However, expert evidence was given by Mr Carroll of the Forensic Science Centre of his analysis of the DNA obtained from the left glove. He explained that there were only four loci out of ten from which a result could be obtained. In his view, the most that could be said is that the appellant could not be excluded as the source of the DNA. He declined to use the expression with respect to the appellant that it was a “match”.
Traces of methylamphetamine were found under the appellant’s fingernails and that of others in the house.
There were small quantities of methylamphetamine in two small plastic bags found in a lean-to at the rear of the premises.
On the basis of what the police found in the house, it was open to the jury to conclude that someone in the house had dissolved Sudafed tablets or similar tablets into a solvent, and had begun the process of separating pseudoephedrine from the solvent. There was no evidence to indicate when this process had been begun. It was also open to the jury to find that glassware suitable for converting pseudoephedrine into methylamphetamine was present in the premises, but the chemicals required for this process were not found at the premises.
Elsayed was interviewed by the police. A video of the interview was played to the jury.
There was no evidence given of any interview between the police and the appellant.
Elsayed gave evidence at the trial.
The appellant did not give evidence at the trial.
Elsayed gave evidence that she had moved into the house in November 2001. Another woman, whom she called Leonie, was in occupation at the time when she moved in and she stayed there for “a couple of months” thereafter. Leonie used the main bedroom, but Elsayed moved into that bedroom when Leonie left.
Another woman then came to stay at the house, called Robyn Williams. She used the second bedroom. A male friend of Ms Williams moved in for a time with her.
Elsayed gave evidence that, apart from the male friend, Robyn was in the habit of bringing people into the house “all the time”.
Another man named Zoran, who was a friend of Elsayed, lived in the house for a time. He had what Elsayed described as some “glassware”, which she put into a cupboard.
Eventually Elsayed tired of Williams and her friends coming and going, and persuaded them to move out.
Robyn left the house on 12 March. Zoran left at about 5.30 am on 13 March, the day of the police raid.
Elsayed said that she went out for the day with the appellant and had returned only 20 minutes before the police came. When she arrived home she began cleaning up the house.
Elsayed denied any knowledge of the incriminating items, including the red folder, except for the glassware which she said belonged to Zoran.
She denied any knowledge of the manufacture of any drug in the house.
So far as the appellant’s presence in the house is concerned, there was no evidence of possessions, such as clothing, to suggest that he lived there. Neither was there evidence of any relationship between him and Elsayed.
The appellant’s fingerprints were not found on any incriminating item in the house.
Joint Trial
Mr Stokes, who appeared for the appellant, advanced his argument that there had been a miscarriage of justice by reason of the fact that his client was tried jointly with Elsayed, on two bases.
His first contention was that his client was prejudiced by reason of the fact that the case against Elsayed was strong, whereas the case against his client was weak.
His second contention was that part of Elsayed’s statement to the police, tendered against her, unduly prejudiced the appellant, although not admissible against him.
As to the second point, the prejudice was said to arise from the fact that in her police statement, Elsayed had said that the appellant had been in the house “for a couple of days”.
The trial judge correctly directed the jury that nothing that Elsayed had said to the police was evidence against the appellant.
Mr Stokes inferred that the direction may not have been adequate enough to prevent prejudice to his client.
As for the strength of the case as against Elsayed, as opposed to the case against the appellant, it is true that the case against Elsayed was much stronger.
However, when more than one accused is charged with committing a crime jointly, the prima facie rule is that there should be a joint trial. The rule is not easily displaced. It is assumed that, generally speaking, the risk of prejudice of the kind said to have arisen in this case, may be eliminated by appropriate directions to the jury.
A number of cases were cited by Mr Kimber of counsel for the respondent in support of those propositions. They include Webb v R,[1] R v Harbach,[2] R v Collie, Kranz and Lovegrove,[3] R v Demirok[4] and R v Glover.[5]
[1] (1994) 181 CLR 41 at 89.
[2] (1973) 6 SASR 427 at 432.
[3] (1991) 56 SASR 302 at 307-308.
[4] [1976] VR 244 at 254.
[5] (1987) 46 SASR 310 at 312.
In my view, there is no substance in either argument advanced by the appellant on this ground.
The trial judge’s direction to the jury as to the inadmissibility of Elsayed’s statement to the police against the appellant was adequate to address the possibility of any prejudice to the appellant in that respect.
Although there were differences in the strength of the Crown case as between the appellant and Elsayed, the jury was clearly instructed to consider the case against each separately. There is no reason to suppose that there was any real risk of a miscarriage of justice on that score.
Verdict unreasonable or cannot be supported on the evidence
There is more substance in the appellant’s complaint under this heading.
The role of the Court in considering this ground of appeal is to assess the evidence for itself and address the question whether, having regard to the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant.[6]
[6] M v R (1994) 181 CLR 487 at 493-494.
The appellant’s presence at the house and the fact that he was sitting at the kitchen table when the police arrived, coupled with the traces of methylamphetamine found under his fingernails, the evidence of equipment and materials that could be used to extract pseudoephedrine, and information about the process of manufacturing methylamphetamine, was not in combination a sufficiently cogent evidentiary basis to justify a conclusion that guilt had been established beyond reasonable doubt. In the end, there was really nothing to link the appellant to the chemical process that was underway, or to the equipment and information, other than his bare presence in the kitchen and the methylamphetamine under his fingernails, indicating some contact with methylamphetamine and possibly an interest in obtaining some.
Perhaps the strongest item of evidence against the appellant was the presence of DNA in one of the gloves, but as I have said, there were only four loci out of ten from which a result could be obtained. The fact that the appellant could not be excluded as the source of the DNA is not sufficient, considered in the context of the evidence as a whole, to support a finding of guilt.
In my view, on the whole of the evidence, it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant.
I would allow the appeal.
In view of the conclusion which I have reached as to the strength of the Crown case, I would quash the conviction, but I would not order a re-trial. I would substitute a verdict of acquittal.
WHITE J I agree with the orders proposed by Perry J. I agree with his reasons for those orders.