R v Avory (No 2) No. DCCRM-02-738

[2004] SADC 55

R v STEPHEN AVORY (NO 2)
[2004] SADC 55

Judge Lunn
Criminal

REASONS ON ACCUSED’S APPLICATION FOR STAY FOR ABUSE OF PROCESS

1. The accused stands charged with one count of taking part in the manufacture of methylamphetamine.  On 5 March 2002 he was the driver of a car whose boot contained a back-pack in which were found a number of containers of chemicals and items of equipment.  His trial commenced before me on 20 May 2003.  After I had determined a number of voir dire issues against him the commencement of the trial was postponed on the application of the prosecutor to enable some important relevant questions of law to be determined on a case stated.  Those questions were determined by the Court of Criminal Appeal in Question of Law Reserved (No 1) of 2003, CCA 23/12/03, Jud No [2003] SASC 430, 231 LSJS 413. On 10 March 2004 the accused took out an application to have the Information permanently stayed as an abuse of process on the ground that the prosecution is foredoomed to fail.

2. The determination of the relevant questions of law in the case stated are set out in the following passages from reasons of Perry J (with whom Mullighan J concurred) and Besanko J:

   “PERRY J:         … In my view, it is important for present purposes to give effect to the words which appear in s 32(4)(a) “in the process of that manufacture”. The taking or participation of any step must be in that process.

   I accept the argument advanced by Mr Wells QC that one cannot be held guilty of participating in a step in the process of manufacture if that process has not, in the relevant sense, commenced. In particular, I accept the arguments which find expression in the following paragraphs from his written submissions:

   ……

   24The construction contended for does not mean that the impugned acts of the accused must be shown to be contributing to a process of manufacture which is at that moment operating. If it were shown, for example, that the laboratory although fully established and operational was not then in operation, but that the accused was transporting the items found for the purpose of supplying the laboratory, that too may constitute participation in, or taking a step in, the process of manufacture of methylamphetamine in that laboratory.[1]

   [1]    R v Thomas (1993) 67 A Crim R 308 per Gleeson CJ at 309, 311.

   25If, on the other hand, it were shown only that the accused was transporting the ingredients found on the search of the vehicle from one storage depot to another, with a view to their use at some indefinite time in the future in a laboratory for the manufacture of methylamphetamine yet to be set up, that act of transporting would not constitute participation in, or taking a step in, the process of manufacture of methylamphetamine. It could not be said that the process had been so established and made operational that the act of transportation could be taken as directed towards the purpose of feeding that process, either immediately or in due course as required.”

   In accepting those submissions, I should make it clear that to take part in the manufacture, or to take or participate in a step in the process of manufacture of an illicit drug, does not necessarily mean that there must be an existing laboratory established for that purpose. The process of manufacture, which, in my view, must be in place before any acts can properly be characterised as constituting participation in that process, may be constituted by a variety of means. It would be unwise to attempt in advance to define what might constitute such a “process”.

   …...

   I would answer the questions as follows:

Do the words ‘take part in the manufacture’ in s 32(1)(b) of the Controlled Substances Act 1984, include:

(1)  acts preparatory to the manufacture of a drug of dependence or a prohibited substance where those acts are done for the purpose of manufacture, and are necessary for such manufacture, but where no subsequent steps in the process of manufacture occur?

No, if by the words ‘acts preparatory to the manufacture of a drug of dependence or a prohibited substance’ it is intended to refer to acts taking place before the process of manufacture has commenced, in the sense referred to in the above reasons.

And

(2)   the transportation of all, or some, of the materials, required for manufacture where they are knowingly intended for manufacture?”

Yes, so long as the evidence establishes that:

(a)    a process of manufacture has been established; and

(b)    that by the transportation of the materials the accused intends to take part in, contribute to or assist in that process.”

“BESANKO J:    … In my opinion, the critical question will be whether the accused’s acts are part of, or a step in, a systematic or planned or pre-arranged series of actions or operations which involve the making of a substance or material which is different from the substances or materials out of which it is made.  …...  On the other hand, merely purchasing and having possession of some of the substances or materials out of which the relevant drug may be made will be insufficient unless it is clear that such acts are part of a systematic or planned or pre-arranged series of actions or operations. …”

1. Hence, in order for the accused to be convicted a jury must find it proved beyond reasonable doubt that his possession of the items in the back-pack were a step in a process of manufacture which had been commenced.  The present application is solely concerned with whether this element can be proved.  The prosecutor conceded that any proof of it could only be through circumstantial evidence.

2. Much of the argument revolved around whether the prosecution case, as revealed on the declarations and taken at its highest, could survive a “no case” submission at the end of the prosecution case at trial.  This issue centres on whether there will be sufficient evidence before the jury, which, if they accept it in its entirety, could be enough in law to prove the element of the offence in question beyond reasonable doubt: Question of Law Reserved on Acquittal (No 2) of 1993 (1993) 61 SASR 1 at 4-5; R v Clune (1999) 72 SASR 420 particularly at 442-3. I am not concerned with whether there may be other hypotheses available to the jury on the evidence which might be consistent with innocence, but only with whether there is any evidence available upon which reasonable jurors could infer proof beyond reasonable doubt of the element in question. If it is shown that such a “no case” submission would succeed, there is then a further question, which I will deal with below, of whether it constitutes such an abuse of process as to justify a permanent stay of the Information.

3. There are three pieces of evidence which the prosecution relies on in combination for the necessary inference to establish the necessary process of manufacture.  (For the purposes of the present application I assume that the jury will accept all of the evidence to be led by the prosecution.)  These pieces of evidence are:

   1.The accused was in possession of nicotinamide, iodine, hypophosphorous acid, toluene, paracetamol and ethanol, various flasks and jars, a rubber glove and a razor.  Iodine and hypophosphorous acid can be used to convert pseudoephedrine to methylamphetamine, but no pseudoephedrine was identified.  Nicotinamide is used as a cutting agent in making illicit methylamphetamine.  A number of other chemicals and pieces of equipment were needed in conjunction with what was in the possession of the accused to enable any manufacture of methylamphetamine to occur.  There is no evidence that the accused had any of these other chemicals or items of equipment available to him.  Furthermore, if the nicotinamide was intended for the manufacture of methylamphetamine “then either the wrong product was extracted or the wrong portion of an extract was retained”.

   2.In a bum bag belonging to the accused was a small notebook.  (Since reserving my decision I have obtained this notebook from the DPP and inspected it.)  It contains various handwritten jottings.  The accused’s name does not appear in it and there is no evidence that it is his handwriting.  In the book were two pieces of bank paper which bear indentations apparently from having been under other missing pages or pieces of paper which were written on. A forensic scientist has ascertained that these indented impressions are of some diagrams and writing which are instructions for chemical processes.  There is no evidence about what happened to the paper or pages on which the original writing appeared.

4. Dr Pigou, a forensic scientist, has given the following supplementary report concerning the process for the manufacture of methylamphetamine and has related what appears in the indentations in the note book to certain stages in the process of the manufacture of methylamphetamine as follows:

   “Methylamphetamine can be produced by many synthetic procedures using a variety of precursors.  The most commonly used procedure in Adelaide over the last five years involves the use of hypophosphorous acid and iodine to convert pseudoephedrine to methylamphetamine.

   1A GENERAL PROCEDURE FOR THE MANUFACTURE OF METHYLAMPHETAMINE FROM TABLETS CONTAINING PSEUDOEPHINE & USING HYPOPHOSPHOROUS ACID & IODINE.

   1.1Grind tablets and mix with ethanol (methylated spirits).  This dissolves the pseudoephedrine hydrochloride in the tablets.

   1.2Filter the solids from the mixture (can use coffee filters or specialised vacuum filtration.)

   1.3Evaporate the ethanol from the filtered liquid.  The solid residue is pseudoephedrine hydrochloride.

   1.4Mix the pseudoephedrine hydrochloride with hypophosphorous acid in a reaction flask equipped for reflux.  Add iodine slowly and then heat the mixture after the addition is complete.

   1.5Cool the mixture and add caustic soda (sodium hydroxide) cautiously to the liquid until it is strongly alkaline.

   1.6Change the apparatus from the reflux to distillation configuration and steam distil the methylamphetamine base from the mixture.  The methylamphetamine will appear as droplets of oil in a watery condensate.  Modified coffee pots or kettles are often used as steam generators to bubble steam through the mixture.

   1.7The distilled methylamphetamine oil can be separated from the water by use of a separating funnel or an eyedropper.

   1.8There are several methods of isolating the methylamphetamine as its hydrochloride salt.  The sale is a solid and is much more easily handled than the oil.  Two common methods involve dissolving the methylamphetamine oil in acetone followed by:

   i.      the addition of hydrochloric acid and subsequent evaporation of the acetone and water from the hydrochloric acid.  This can result in a sticky solid unless it is dried thoroughly.

   ii.     bubbling hydrogen chloride gas through the solution.  Methylamphetamine hydrochloride precipitates from the solution and can be collected by filtration.

   1.9“Sudafed” tablets contain 60mg (0.06g) of pseudoephedrine hydrochloride, therefore 100 tablets will provide 6g of pseudoephedrine hydrochloride.  This should convert to at least 3g of methylamphetamine hydrochloride.  The whole process can be done in less than 5 hours.

   2.NOTATIONS ON ITEM EB10

   2.1The procedure indicated by the indentations identified on the third page of the notebook is essentially the process described in 1.8(ii) above, except that in this instance the description is for pseudoephedrine hydrochloride not methylamphetamine hydrochloride.  The diagram depicts the general layout for a hydrogen chloride gas generator.  The gas is produced in the flask on the left and is then passed into the centre flask and bubbled through sulphuric acid to remove moisture from the gas.  The dried hydrogen chloride gas then passes into the flask on the right where it combines with pseudoephedrine, dissolved in a solvent such as acetone.  The pseudoephedrine hydrochloride produced crystallises from the solvent and can be collected by filtration.  The text described by S Birchall is essentially a note form of the process just described.

   2.2The text recovered by S Birchall from the last page of the notebook refers to a procedure known as recrystallisation.  The material being recrystallised is not obvious as only the letter ‘P’ is given.  It appears in the first line as ‘MIX P’.  ‘METH’ also appears in the writings and from the context of its use ‘METH’ probably refers to methylated spirits.  The procedure outlined could refer to the recrystallisation of pseudoephedrine hydrochloride from methylated spirits but ‘P’ could also stand for another material.

   2.3The processes described in 2.1 and 2.2 are not directly involved in the production of methylamphetamine.  However, the purification of pseudoephedrine through its hydrochloride sale is described and pseudoephedrine is a commonly used precursor to methylamphetamine.”

   The processes outlined in the note book are far from a complete “recipe” for manufacturing methylamphetamine.

   3.Swabs taken from the hands of the accused at the time of his arrest revealed methylamphetamine on his right and left hands.  There is no evidence as to the length of time for which that methylamphetamine had been on his hands.

5. I do not accept the prosecutor’s submission that there is sufficient evidence on which a jury could infer beyond reasonable doubt that the items in the back-pack and/or the chemical processes in the note book, and the methylamphetamine on the accused’s hands, were referable to a completed process of the manufacture of methylamphetamine which had already occurred.  There is no evidence to suggest that the items in the back-pack had previously been used in a completed process of manufacture of the drug.  The presence of the drug on the accused’s hands is at best equivocal as it could have come from an association with the drug other than in the process of its manufacture.  Any inference of a completed manufacture of methylamphetamine from this evidence is too speculative and fanciful to constitute proof beyond reasonable doubt.

6. The alternative submission of the prosecutor was that the items in question were part of an existing, but not completed, process for the manufacture of methylamphetamine.  However, there is no evidence whatsoever that the accused had any association with any of the other chemicals or equipment which were needed in combination with what he had in his back-pack to manufacture the drug or that he had the necessary instructions or knowledge for the other processes required for the manufacture over and above those detailed in the note book.  The prosecution case would have been far stronger if there had been a complete laboratory and a full set of instructions for manufacture of the drug in the note book, but the absence of substantial parts of the necessary equipment and chemicals, and of the complicated instructions for manufacture, strongly point to there being no process of manufacture in place at that time as distinct from partial and incomplete preparatory acts which are not sufficient to prove the offence.  There is no evidence from which a jury could infer beyond reasonable doubt that the necessary process of manufacture existed.

7. Accordingly, there is no prospect that the prosecution could survive a non case submission, and thus the accused would be acquitted.  As part of the conditions of postponing the previous trial I imposed a “Rona” direction requiring that the prosecution obtain leave before filing any further declarations to supplement its case so it could not take unfair advantage of the postponement to bolster its case with further evidence.  In any event there was no suggestion that any further evidence was sought to be adduced.  I take into account that the accused has already been put to the inconvenience and trouble of an aborted trial and a case stated to the Court of Criminal Appeal.  It would be oppressive and unfair to require him to now go through a trial to the end of the prosecution case which inevitably would result in his acquittal from a direction that he had no case to answer.  An abuse of process has been established and the Information is permanently stayed.