R v Chapman No. Sccrm-02-47 - [2002] SASC 255

R v CHAPMAN (No 2)
[2002] SASC 255
Court of Criminal Appeal: Nyland, Williams & Gray JJ

NYLAND J: I agree for the reasons given by Gray J that this appeal should be allowed and the matter remitted to the District Court for re-trial.
WILLIAMS J For the reasons given by Gray J I agree that this appeal should be allowed and the matter remitted for retrial in the District Court.
GRAY J This is an appeal against conviction.
Darryl Kenneth Chapman the appellant was charged with knowingly taking part in the manufacture of a prohibited substance. The particulars of the offence were that between 1 January 1999 and 1 April 1999 at Renmark the appellant knowingly took part in the manufacture of 3, 4-Methylenedioxyamphetamine (“MDA”) or 3, 4-Methylenedioxymethamphetamine (“MDMA”). On 22 January 2002 following a trial in the District Court a jury found the appellant guilty.
The Crown Case
On 31 March 1999 detectives attended at a property near Renmark. They found the appellant in a shed. The windows had been boarded over. The appellant was spoken to by police in the doorway. He gave his name and was then asked “What are you doing here?” He replied “Minding my own business.” He was asked “Is there a lab in there?” and he answered “I’m just experimenting.”
An examination of the shed revealed a chemical laboratory. Flasks, chemicals, glass jars, glassware, rubber gloves and other equipment were set up on a bench. There were a number of books in the shed including a bound photocopy of a publication by Uncle Fester entitled ‘Secrets of Methamphetamine Manufacture Fourth Edition Including Recipes for MDA, Ecstasy, and Other Psychedelic Amphetamines’. There were other documents which were said to relate to the manufacture of amphetamines. Six pages of handwritten notes were said to be a log of observations for distillation purposes.
A glass reaction vessel configured for reflux in an oil-filled electric saucepan was seized. The flask held a brown liquid. Subsequent examination of that liquid by a forensic scientist employed at the State Forensic Science Centre, revealed that it contained a mixture of compounds including safrole, isosafrole, formamide and n-formyl 3,4-Methylenedioxyamphetamine, a direct precursor to MDA commonly known as “ecstasy”.
Section 32(1)(b) of the Controlled Substances Act 1984 (SA) (“the Act”) makes it an offence for a person knowingly to take part in the manufacture or production of a prohibited substance. Both MDA and MDMA are prohibited substances[1].
[1] By virtue of the combined operation of section 4 and section 12 of the Controlled Substances Act 1984 (SA) and Schedule 1 of the Controlled Substances (Prohibited Substances) Regulations 2000.
The Crown case was circumstantial. It was said that the appellant intended to make either MDA or MDMA. However, neither had been produced at the time of the police investigation.
The information alleged both prohibited substances. Each substance is closely related and requires an almost identical manufacturing processes. Counsel for the Crown submitted that as there was no absolute certainty as to which…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2002] SASC 255
Decision Date: 20 August 2002

CaseChat Overview and Summary

Darryl Kenneth Chapman appealed against his conviction for knowingly taking part in the manufacture of a prohibited substance. The particulars of the offence were that between 1 January 1999 and 1 April 1999 at Renmark, Chapman knowingly took part in the manufacture of 3, 4-Methylenedioxyamphetamine (“MDA”) or 3, 4-Methylenedioxymethamphetamine (“MDMA”). Chapman was found guilty by a jury in the District Court and the appeal was heard by the South Australian Court of Criminal Appeal. The appeal was allowed and the matter was remitted to the District Court for retrial.

The appeal raised several issues including errors of fact in the summing up, misdirections concerning circumstantial evidence and reasonable doubt, and whether there was a reasonable possibility that a drug other than MDA or MDMA could have been produced. The judge's summing up contained errors of fact concerning the production of MDA. The judge directed the jury that the appellant had intentionally produced ecstasy which was not the case. The direction concerning circumstantial evidence was inadequate as it did not require the jury to consider whether a reasonable hypothesis consistent with innocence existed. The judge did not direct the jury that if such a hypothesis existed then there was a duty to acquit the appellant.

The Court held that the errors of fact and misdirections were prejudicial and there was a risk of a miscarriage of justice. The appeal was allowed and the matter was remitted for a retrial in the District Court.

The Court of Criminal Appeal allowed the appeal and remitted the matter for retrial. The trial judge's misdirections and errors of fact were prejudicial and there was a risk of a miscarriage of justice. The appeal must be allowed and the matter remitted for a retrial in the District Court.

Orders