R v Briggs and Coulter - [2012] SADC 83

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BRIGGS AND COULTER
Criminal Trial by Judge Alone
[2012] SADC 83
Reasons for the Verdict of Her Honour Judge Davey
22 June 2012
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PRODUCTION OR CULTIVATION
Both accused are alleged to have taken a step or steps in the process of manufacture of a controlled drug namely methylamphetamine. Knowledge of and participation in the manufacture not proved beyond reasonable doubt.
Held: Each accused not guilty of the charge.
Controlled Substances Act 1984 ss 32(1)(4) and s 33J, referred to.

R v BRIGGS AND COULTER
[2012] SADC 83
Introduction

At about 3 pm on 16 November 2009 the police attended at 22 Argent Street Elizabeth Grove. As the police arrived, they thought they saw someone enter the front of the house and they also saw the accused, Mr Coulter, in the front yard of the house. A search of the premises revealed laboratory equipment capable of producing methylamphetamine (often called a clandestine laboratory). The laboratory set up was fairly simple and crude. There is no suggestion that this was a commercial set up. The equipment appeared to have been used for some time. After locating the clandestine laboratory, police secured the premises and returned early the next morning with appropriate protective equipment and an expert scientist to search and seize items from the house. Photographs which were tendered showed the nature of and location of the laboratory and other items located at the house.[1]
[1] Exhibit P3
The police also found other items in the house consistent with the use and manufacture of methylamphetamine. A search of the kitchen area found some small containers on a cluttered kitchen table (some of which contained material consistent with use for the manufacture of methylamphetamine) together with a small “ice” pipe. The kitchen also contained a television set up as a security monitor for cameras located outside the house. Searches of the house also revealed numerous documents which linked the two accused and others to the premises.[2]
[2] Exhibits P8 – P20
Mr Briggs was not at the premises on 16 or 17 November 2009. He was later seen and arrested at the Lyell McEwin Hospital on 30 December 2009.
Mr Coulter had a short conversation with Senior Constable Dunne at the scene. He admitted staying at the address two or three times a week. He was later arrested and charged.
The accused are charged with Manufacturing a Controlled Drug between 1 October 2009 and 16 November 2009. The prosecution has presented its case against each accused on the basis of permitting the premises to be used for the manufacture of methylamphetamine or taking part in the manufacture of methylamphetamine. Both accused have pleaded not guilty and elected for trial by Judge alone.
The Law
The offence of taking part in the manufacture of methylamphetamine is comprised of three ingredients, each of which must be proved by the prosecution beyond reasonable doubt.
The first ingredient requires proof that the accused knowingly took part in the manufacture of methylamphetamine. This ingredient has two parts to it. The first component relates to what the accused physically did. It requires proof that what he did amounts to taking part in the manufacture of methylamphetamine. Subsection (4) of s 32(1) of the Controlled Substances Act 1984 provides:
(4)Without limiting the generality of the section, a person takes part in the manufacture, production, sale, supply or administration of a drug of dependence or prohibited substance if the person –
(a) takes, or participates in, any step, or causes any step to be taken, in the process of that manufacture, production, sale, supply or administration; or
(b)provides or arranges finance for any such step in that process; or
(c) provides the premises in which any such step in that process is taken, or suffers or permits any such step in the process to be taken in premises of which he is the owner, or in the management of which he participates.
The other component of this ingredient is proof of the accused’s knowledge. It must be proved that when he took that step or provided premises, he did so knowing that he was, by doing so, assisting or facilitating the manufacture of methylamphetamine.
The second ingredient requires proof that the accused took part in the manufacture of methylamphetamine knowing that the substance was methylamphetamine, or at least that it was an illegal substance under the drug laws.
The third ingredient requires proof that methylamphetamine is a drug of dependence/prohibited substance within the meaning of the Controlled Substances Act.
Matters in dispute at trial
The issue at the trial was proof of the knowledge of and involvement of each of the accused with the particular laboratory found at the house. There was no dispute as to the existence of the laboratory nor that it was for the production of methylamphetamine.
The case against Darren Scott Briggs
The prosecution allege that Mr Briggs was the tenant of the Argent Street house, that he lived at the house at the relevant times (or at least part thereof) and that a fingerprint found on a jar (located in a cupboard with other equipment commonly used in the manufacture of methylamphetamine and closely proximate to the laboratory equipment) prove his involvement in manufacturing the drug at the relevant time.
The prosecution relied on a number of documents and photographs found in the house to prove that Mr Briggs lived there. Those items included photographs developed from a digital camera located at the house which showed photographs of Mr Briggs present inside the house.[3] There is no evidence as to when the photographs were taken.
[3] Exhibit P5
The defence does not dispute that Mr Briggs lived at the house at some stage. Mr Daniel Greenshields[4] was called by Mr Briggs and said that he was aware that Mr Briggs lived at the house for some years. He also said that he took Mr Briggs to Mr Briggs’ father’s home at Waikerie on 18 October 2009. This evidence was not challenged. Mr Peter Briggs,[5] father of the accused, gave evidence that from that date until the time of the police raid, his son was living with him at Waikerie. He said that (aside from an hour or two when they were apart) his son was living with him at all times and in his company except for one occasion when Mr Briggs senior travelled to Swan Reach for a day and overnight. There is no evidence of when that occurred. There is no evidence that Mr Briggs returned to the Argent Street house after 18 October 2009.
[4] T198
[5] T205
Whether the prosecution case is that Mr Briggs permitted the premises to be used for the manufacture of methylamphetamine or that he took part in the process of manufacture, it is necessary that it be proved beyond reasonable doubt that Mr Briggs knew of the existence of the clandestine laboratory. There is no direct evidence that Mr Briggs was aware of the existence of the clandestine laboratory either prior to him moving to Waikerie to stay with his father or afterwards. There is no evidence (direct or indirect) that the laboratory existed at the Argent Street address prior to Mr Briggs moving to Waikerie.
The only evidence of any connection between Mr Briggs and the manufacture of methylamphetamine is a fingerprint located on a jar.[6] There is no dispute that the fingerprint is that of Mr Briggs. The glass jar contained substances related to the manufacture of methylamphetamine. There is no evidence as to how long that fingerprint may or may not have been on that jar and of course, it may be that the fingerprint was placed on the jar prior to its use in respect of the manufacture of methylamphetamine. The jar seems slightly unusual in shape (I have not seen the original as apparently it and other exhibits were destroyed) but the photographs show the nature of the jar clearly enough. Ms Jones, who was the partner of Mr Briggs at around this time, said that that jar was a spaghetti jar.[7] In my view, that evidence doesn’t assist me one way or the other. Firstly, it appears that more than one jar of that type was being used in respect of the manufacture of methylamphetamine[8] and secondly it wasn’t made clear what the description “spaghetti jar” meant. It may be that Ms Jones intended to convey that the jar had been used in the kitchen of the house for storage of spaghetti but this was unclear on the evidence. The important point about the fingerprint on the jar is that it is not known when that came to be on the jar. There is insufficient other evidence to circumstantially prove Mr Briggs’ knowledge of the particular amphetamine laboratory let alone participation in the manufacture of methylamphetamine at the time charged.
[6]    Exhibit P2 - photograph 39
[7]    T219.16
[8]    Exhibit P2 – photograph 38
I observe that the photographs of the laboratory and the room suggest that the laboratory had been there for some time but I do not know for how long. One of the photographs[9] from the camera seized at house shows the security monitor set up for surveillance in the background of a photograph of a young female. This photograph was apparently taken in the kitchen of the house. There is no evidence as to when the photograph was taken. The existence of the security monitor attached to cameras directed outside the house was probative of the existence of this type of illegal activity. The security monitor may have been very significant if it had been established that it was in existence at a time when Mr Briggs was living at the house but there is no evidence of this nature.
[9] Exhibit P5 - photograph 25
There is no evidence that Mr Briggs was a user of methylamphetamine or had any connection with that drug. There was evidence of the involvement of others living at the house which could explain the existence and use of the laboratory.
The DPP relied on documents, particularly two dog fine expiation notices dated 23 October 2009[10] to prove that Mr Briggs was present at the house on that date. No evidence was called from the issuer of the expiation notices as to who was spoken to (if anyone) when the notices were issued. There is no dispute that Mr Briggs had been living at the house for a long period of time. The expiation notices do not tend to prove that Mr Briggs was present on the date of the notices.
[10] Exhibit P16
Having regard to the combined effect of the evidence it cannot be said that the only rational inference to be drawn from it is the guilt of Mr Briggs for the offence charged. There is insufficient evidence to prove beyond reasonable doubt the accused’s knowledge of or participation in any way in respect of the drug laboratory. Accordingly I find the accused not guilty of the offence.
The case against Mark Andrew Coulter
Mr Coulter was at the house when the police raided it on 16 November 2009. He was apparently working on a car which was parked towards the front of the house. When the police attended he did not flee and when spoken to by Senior Constable Dunne he volunteered that he stayed at the house on two or three nights a week and slept on the couch.
Documents belonging to Mr Coulter were located in the lounge room of the house. Mr Coulter gave evidence and did not dispute the existence of those items nor that he stayed at the house for a good deal of the time. He also volunteered that a number of his personal papers had been left at the house in a box located in the doorway of the spare bedroom[11] which is best described as a storage room.
[11] Exhibit P7 – room R1
When Mr Coulter gave evidence he denied any knowledge of the clandestine laboratory and any involvement in the manufacture of methylamphetamine.
There was one item of evidence which tended to directly implicate Mr Coulter in the laboratory; the packet which apparently contained Cold and Flu tablets[12] (which are a source of material used for the manufacture of methylamphetamine) which was located in the room with the clandestine laboratory. The packet was empty and located in a box with caustic soda and Toluene which are also used in the process of manufacturing methylamphetamine.
[12] Exhibit P4 - pages 2 and 3
Mr Coulter said that he had no memory of buying the tablets but said that he may have bought them. He denied any illicit purpose and said that he did not know how the box came to be in the room with the laboratory.[13] He said that Toluene and caustic soda were used at the house on the cars and to clean drains.
[13] T268-269
There was no other evidence linking Mr Coulter to the laboratory. Particularly, there were no fingerprints on any of the items, there was no evidence of any samples of trace materials or methylamphetamine or related substances found on the hands or clothing of Mr Coulter and there was no evidence that he ever used or was in any way connected with methylamphetamine.
There were other items outside the room containing the clandestine laboratory which might have been indicative of knowledge of and participation in the illicit manufacture of methylamphetamine. An “ice” pipe and containers with iodine and substances used in the manufacture of methylamphetamine were on the kitchen table.[14] Mr Coulter was not questioned at all about these items nor whether he used the drug. The security monitor used for surveillance of the outside of the house was in the kitchen at the time of the police raid. Mr Coulter gave evidence that he went into the kitchen on numerous occasions but he was not asked questions about his knowledge of or observations of the security monitor, how long that had been present in the kitchen or what he thought the purpose of the security monitor was.
[14] Exhibit P1, Exhibit P2 - photographs 30-34, Exhibit P3 - photographs 1-3 and Exhibit P5 - photographs 23-24
In his evidence Mr Coulter denied knowledge of the existence of the clandestine laboratory and denied participating in the manufacture of methylamphetamine. There were some aspects of his evidence that I found unsatisfactory but overall I cannot say that he was a dishonest and entirely unreliable witness. His assertions of complete lack of knowledge of the methylamphetamine manufacture enterprise at the house strains my credulity but in the absence of cross-examination about the items in the kitchen and other evidence, I am not prepared to reject his evidence.
The case against Mr Coulter was that he was present at the house at the time of the police raid, that he stayed at the house and that there was an empty Cold and Flu tablet box bearing his name with the date 30 October 2009 found in the room where the clandestine laboratory was located. Having regard to the combined effect of the evidence I am of the view that it is insufficient to prove beyond reasonable doubt Mr Coulter’s knowledge of and participation in the manufacture of methylamphetamine. I cannot find that Mr Coulter’s evidence is not a reasonable possibility. The effect of the totality of the evidence does not lead to the only rational inference being guilt of the offence charged. Accordingly I find Mr Coulter not guilty of the offence.