R v Chen
[2020] SADC 77
•24 June 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CHEN
Criminal Trial by Judge Alone
[2020] SADC 77
Reasons for the Verdict of His Honour Judge Chivell
24 June 2020
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Charges of manufacturing a large commercial quantity of a controlled drug for sale and trafficking in a controlled drug – prosecution alleges that accused took a step in the process of manufacture by storing equipment, substances or material and/or providing or allowing the use of premises for the purpose of manufacturing methylamphetamine with respect to count 1 and by providing and/or allowing the use of premises for the purpose of sale with respect to count 2 – prosecution case based on circumstantial evidence – accused’s involvement not proved beyond reasonable doubt.
Verdict: not guilty of either count.
Controlled Substances Act 1984 (SA) s 4(1), s 4(4), s 4(5), s 4(6), s 32(3), s 33(1); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 34P; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) reg 5, Schedule 1, referred to.
Azzopardi v R (2001) 205 CLR 50; R v Weetra [2010] SASCFC 52; R v Maiolo (No 2) (2013) 117 SASR 1; R v Randylle (2006) 95 SASR 574; R v Scarpantoni (2013) 118 SASR 131; R v Vaccaro (2017) 127 SASR 284, considered.
R v CHEN
[2020] SADC 77
Mr Chen is charged with manufacturing a large commercial quantity of a controlled drug for sale, contrary to s 33(1) of the Controlled Substances Act 1984 (SA). The particulars of the charge are as follows:
Particulars of Offence
Fu Chen, Ken Yi Lee and Tianjun Xu between the 25th day of September 2017 and the 8th day of February 2018 at Underdale, manufactured a large commercial quantity of a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was or was to be a controlled drug and intending to sell any of it or believing that another person intends to sell any of it.
It is alleged the quantity of methylamphetamine in its mixed form was in excess of 1 kilogram.
Mr Chen is also charged with trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The particulars of that charge are as follows:
Particulars of Offence
Fu Chen, Ken Yi Lee and Tianjun Xu on or between the 25th day of September 2017 and the 8th day of February 2018 at Underdale, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
He has pleaded not guilty to both charges. He has elected to be tried by a judge sitting without a jury.[1] He was represented by Mr C Allen. Mr R Walker appeared for the Director of Public Prosecutions.
[1] Juries Act 1927 (SA), s 7(1)(a).
General Directions
I remind myself of the following fundamental principles:
·Mr Chen is entitled to the presumption of innocence. He is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt.
·Each element of the offence must be proved beyond reasonable doubt, and if any one element is not proved, the appropriate verdict is not guilty.
·The burden of proving guilt rests on the prosecution. There is no onus on Mr Chen to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of Mr Chen.
·Proof beyond reasonable doubt means what it says, and needs no further elaboration. A person must not be convicted on doubtful, insufficient or unreliable evidence. A suspicion of guilt is inadequate. Nothing short of proof beyond reasonable doubt is sufficient.
·In this case the accused elected not to give evidence. He was under no obligation to do so. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case, and may not be used as a ‘makeweight’ in assessing whether the prosecution has proved its case beyond reasonable doubt (Azzopardi v R;[2] R v Weetra[3]).
·Evidence was led of certain aspects of Mr Chen’s behaviour which show him in a bad light. Although the relevant notice was not tendered in evidence, I assume the evidence was led pursuant to s 34P of the Evidence Act 1929 (SA). There was no objection to the evidence. It referred to the commission of offences against the Road Traffic Act, his possession of various items of false identification, and his association with people who were involved with illegal drugs.
I accept that this evidence was led for a legitimate forensic purpose, in that it was relevant to the issues in the case, and was not led simply to show that Mr Chen is of bad character.
In particular, I direct myself that I should not reason that Mr Chen is of bad character and, by virtue of that, was more likely to have committed the offences charged.[4]
[2] (2001) 205 CLR 50 at [51].
[3] [2010] SASCFC 52 at [67].
[4] See R v Maiolo (No 2) [2013] SASCFC 36; (2013) 117 SASR 1 at [84] per Peek J.
Circumstantial Evidence
The prosecution bases its case against the accused upon circumstantial evidence.
Circumstantial evidence is to be distinguished from direct evidence, which is the evidence of a person who witnessed the actual offence. Circumstantial evidence, as its name suggests, is evidence of the circumstances surrounding the alleged offence from which the prosecution asks me to infer beyond reasonable doubt that the accused committed that offence.
To speak of evidence in a case as circumstantial does not imply that the evidence is necessarily weak or unsatisfactory. Circumstantial evidence can afford very secure grounds for a conclusion of guilt. Many crimes are committed in secret, or without anyone being present.
The amount of circumstantial evidence required to prove a charge beyond reasonable doubt varies from case to case. The weight of a case which is based upon circumstantial evidence ultimately depends upon the combined strength of all the evidence that I accept.
As the prosecution case rests upon circumstantial evidence, I cannot return a verdict of guilty of a charge unless the circumstances exclude any reasonable explanation consistent with innocence. In other words, before I can be satisfied that the accused is guilty of an offence, I must be satisfied, not only that his guilt is a rational inference, but that it is the only rational inference that the circumstances I find proven enable me to draw.
Factual Background
On 6 September 2017, Mr Chen was driving a silver Holden sedan on Grand Junction Road at Mansfield Park and was pulled over in a random traffic stop by a police officer, Senior Constable First Class Donna Gough. When requested, he produced an ‘International Driving Permit’. A caution was issued and he went on his way.
On 14 September 2017, Mr Chen was driving on the same road, Grand Junction Road, at Angle Park. This time he was driving a black Chrysler 300C sedan. The registration of the vehicle had expired the previous day. It had been registered to Duong Thanh Au of 257 South Road, Renown Park. Senior Constable Gough recognised Mr Chen from their earlier encounter. On request, he produced the same ‘International Driving Permit’. She inspected the document more closely. It contained spelling and grammatical errors suggesting that it had been forged. The photograph on the ‘Permit’ was not of Mr Chen.
The ‘Permit’ purported to have been issued to ‘Kwok Yin Leung’. It had been laminated.
Also in Mr Chen’s wallet was a New South Wales driver’s licence issued to a person with a different name, Keke Shi. It bore the same photograph as the one on the ‘Permit’.
In a satchel on the front seat of the Chrysler was an envelope containing a further six driver’s licences and identity cards in various names and bearing photographs, none of which was a photograph of Mr Chen.
Senior Constable Gough arrested Mr Chen and he was conveyed to Port Adelaide Police Station. He was identified by his fingerprints. His address had been recorded as 255 South Road, Renown Park. Mr Chen did not hold a current South Australian driver’s licence.
Senior Constable Gough mentioned these events to Detective Brevet Sergeant Andrew Murdock of the Port Adelaide CIB.
After searching the Chrysler, Detective Murdock went to Mr Chen’s residence at 255 South Road, Renown Park. Mr Chen was still in custody at this stage. Detective Murdock spoke to Dong Ai Pan, who said she was Mr Chen’s wife. In the backyard of the property were:
·a caravan;
·a Suzuki motorcycle registered to Mr Chen;
·a blue Holden Omega registered to Ken Yi Lee;
·a white Lexus RX 400 registered to Duong Thanh Au;
·a silver Holden 307 GT registered to Duong Thanh Au;
·a blue Lexus GS300 registered to Dong Ai Pan;
·a black Ford XR6 registered to Dong Ai Pan.
Duong Thanh Au was also the registered owner of the black Chrysler. He is the ex-husband of Dong Ai Pan. He lived in the adjoining house at 257 South Road. The backyards of 255 and 257 South Road are open to each other.
Ken Yi Lee, the registered owner of the blue Holden Omega, was associated with the house premises at 16 Cranbrook Avenue, Underdale and 11A Watson Street, Hectorville, which are critical to these alleged offences. The presence of the blue Holden in the backyard of Mr Chen’s residence is the first piece of circumstantial evidence linking the two men.
Detective Murdock and his colleagues conducted a search of the 255 South Road premises. I will discuss the results of the search later.
On 28 January 2018, Detective Murdock and his colleagues went to 255 South Road, Renown Park again and searched the premises. Mr Chen was not there when they arrived. They spoke to Dong Ai Pan. The black Ford, the black Chrysler and the silver Holden were still in the rear yard.
Mr Chen arrived at the premises driving the white Lexus. The engine was still running when Detective Murdock went into the rear yard to speak to him. Mr Chen had a ‘Hong Kong Permanent Identity Card’ and an ‘International Driving Permit’ in the name of Ho Man Hui in his wallet, together with $1,415.20 in cash. He was arrested for unlawful possession.
Several other examples of false identification were found during the subsequent search of Mr Chen and the cars.
Two calls were made from a mobile phone owned by Ken Yi Lee to Mr Chen’s mobile phone while the police were there.
A large number of items were seized from Mr Chen’s residence, most notably an Oaks Hotel guest pass in the name of Shale Qiu. The contact email for the reservation was in the name of Ken Yi Lee, as was the contact phone number.
Three sets of keys were found in the back seat of the white Lexus. The keys opened the front doors at 16 Cranbrook Avenue, Underdale referred to above, and 11A Watson Street, Hectorville. The third set of keys opened a post office box at Marden.
Mr Chen was arrested on 28 January 2018 and refused police bail.
On 29 January 2018, Ken Yi Lee and another man, Yixin Sun, attended at the Halifax Street Post Office in Adelaide and collected a large parcel. It had been sent from China on 23 January. The parcel contained Chinese New Year decorations which, when later dismantled, were found to contain a large quantity of ephedrine.
On 6 February 2018, Mr Chen was granted bail in the Port Adelaide Magistrates Court. He was released from custody.
On 7 February, 2018, the properties at Underdale and Hectorville were searched by the police. The property at 34A Reid Avenue, Tranmere, which was Ken Yi Lee’s residence, was also searched.
When the officers arrived at Underdale, there were two people there, a female person named Yanong Xu and a male person named Tianjun Xu. A large number of exhibits was seized, including a semi-automatic pistol with a loaded magazine.[5] A number of the exhibits appeared to be equipment used in clandestine drug laboratories. The Drug Investigation Branch was called in to assess the situation and seize any dangerous articles.
[5] Exhibit P12, photograph 003.
Another team of detectives attended at the Hectorville address that same morning. There was no one present when they arrived. The electricity supply had been disconnected. A search of that address also revealed the presence of articles used in clandestine drug laboratories. The Drug Investigation Branch attended at the house later in the afternoon.
It was the opinion of Mr Ben Painter, the forensic chemist, that there were items of chemicals and equipment found at Hectorville which could be used in the manufacture of methylamphetamine, but not all of what was required was present. At Underdale, all the requisite chemicals were present, but not all the equipment. If the items at the two addresses were regarded as a whole, then all of the chemicals and all of the equipment necessary for the manufacture of methylamphetamine were present.[6] A very large number of articles were seized from both premises.
[6] T 216.
The Prosecution Case
As a result of the investigations by the police between September 2017 and February 2018, a large body of evidence has been amassed. The prosecution submits that, regarded as a whole, the probative value of that evidence proves Mr Chen’s guilt of both charges beyond reasonable doubt.
The defence submits that the prosecution has failed to exclude as a reasonable possibility that Mr Chen was not involved in either offence.
Count 1
The elements of the offence of manufacturing a large commercial quantity of methylamphetamine are:
1.The accused manufactured methylamphetamine.
Relevant to this charge are the following legislative provisions:
·section 4(1) of the Controlled Substances Act provides that ‘manufacture’ means ‘take part in the process of manufacture of the substance’;
·section 4(4) provides that a person takes part in the process of manufacture if the person ‘directs, takes or participates in any step, or causes any step to be taken, in the process of … manufacture’;
·section 4(6) provides that ‘a step in the process of manufacture’ includes, respectively:-
‘(b) storing equipment, substances or materials’, and
‘(f) providing or allowing the use of premises …’
for the purpose of manufacture of the drug.
It is the prosecution case that Mr Chen did one or the other or both of those things.
In R v Randylle,[7] Doyle J explained:[8]
[7] (2006) 95 SASR 574.
[8] At [43].
In my opinion … a step in the process of manufacture can be taken by someone who does not have all of the equipment or chemicals required to complete the process. Such a step could be taken before any chemical reaction is produced by the use or treatment of consumables. The process of production can be broken into stages, that might be conducted at different places and by different people and on different days. If the evidence establishes that that is what was intended, an act or event which in isolation might not appear to be a step in the process of production may, properly understood, be found to be such a step. All of these things have to be considered.
Applying his Honour’s reasoning to the facts of this case, if the storing of equipment or the provision of or allowance of the use of premises is proved, then provided it occurred at any of the relevant stages of the process referred to by Doyle CJ, including before any chemical reaction took place, it would satisfy the test for taking a step in the manufacture of methylamphetamine.
It is the prosecution case that, as at 28 January 2018, the people involved in the manufacturing process intended to manufacture methylamphetamine once the ephedrine arrived, and that it was intended that the methylamphetamine be manufactured sometime after 29 January 2018, when it was collected.
It is that particular manufacture in which the prosecution says Mr Chen took part. Whether or not there had been earlier manufacturing goes merely to the knowledge of the participants as to the proposed manufacture.
2.The accused knew he was taking part in the manufacture of a controlled drug.
The prosecution submits that if I am satisfied beyond reasonable doubt about element 1, it follows that element 2 is also satisfied. I accept that.
3.The substance produced was a controlled drug.
This element is satisfied if I am satisfied beyond reasonable doubt that the substance produced was methylamphetamine. I accept that it was. The methylamphetamine residue on the equipment establishes that. Methylamphetamine is a controlled drug by virtue of s 4 of the Controlled Substances Act and regulation 5 and Schedule 1 made pursuant to that Act.[9] This element has been proved.
4.A large commercial quantity of methylamphetamine was produced.
The regulations and Schedule 1 of the Regulations define a large commercial quantity of a mixture containing methylamphetamine as one kilogram or more. The evidence of the forensic chemist, Mr Painter, was that the amount of methylamphetamine that could have been produced from the amount of ephedrine imported was between 1.1 and 1.6 kilograms.[10] I accept that evidence. This element has been satisfied.
In R v Scarpantoni,[11] Kourakis CJ and Sulan J held that it is not necessary that the prosecution prove that the accused intended to manufacture a large commercial quantity.
Further, it is immaterial that there was insufficient hypophosphorous acid or iodine available to produce a large commercial quantity of methylamphetamine in the single charged manufacture. It is sufficient if it is proved beyond reasonable doubt that a large commercial quantity would have been produced from that amount of ephedrine, even if more than one batch was manufactured at a time. In R v Vaccaro,[12] the Court of Criminal Appeal said:[13]
We add that the expanded definition of “manufacture” contained in s 4(4) of the Act has the consequence that an offence charged contrary to s 33(2) of the Act may be complete, in that the extraction, production or refinement of a commercial quantity of a controlled drug is completed, or, incomplete, in that the extraction, production or refinement of a commercial quantity of a controlled drug has not been achieved but a step in the process of achieving any one of those outcomes, within the meaning of s 4(6) of the Act, has been undertaken. In either instance there is but one process of manufacture. In either instance that process must be one that results in the extraction, production or refinement of a commercial quantity of a controlled drug or would, if completed, do so.
5.The accused intended to sell any of the drug produced or believed that another person intended to sell any of it.
It is submitted that it can be inferred beyond reasonable doubt, from the value of so much methylamphetamine[14] and the cost of the chemicals and equipment and other expenses involved in producing it, that it was intended that at least some of it would be sold. This element has been proved.
[9] Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA).
[10] T 218.
[11] (2013) 118 SASR 131 at p 135, 143.
[12] (2017) 127 SASR 284.
[13] At [43].
[14] Sergeant Nguyen said that a kilogram of methylamphetamine was, in March 2018, selling for between $100,000 and $115,000.
Mr Allen, counsel for Mr Chen, did not contradict any of these submissions. In his closing address, he made it clear that the issue in dispute was whether the prosecution has proved element 1 beyond reasonable doubt; that is, whether it is proved that Mr Chen either stored equipment or chemicals, or provided or allowed the use of premises, for the purpose of manufacturing methylamphetamine.
Count 2
The elements of the offence of trafficking in a controlled drug are similar to the elements of count 1. They are:
1.The substance in question was a controlled drug.
2.The accused knew that the substance was a controlled drug, or was reckless about that fact (reckless means that the accused recognised the possibility that it was a controlled drug).
3.The accused trafficked in the drug. ‘Trafficking’ includes, for the purposes of this case, taking part in a step in the process of sale. One such step is providing or allowing the use of premises for the purposes of sale of the drug.[15]
[15] Controlled Substances Act, s 4(5)(f).
It is the prosecution case that Mr Chen provided or allowed the use of premises for the purpose of selling the 30.88 g of methylamphetamine found in the house at 16 Cranbrook Avenue, Underdale on 7 February 2018. The methylamphetamine was being kept in a variety of smaller containers, in both paste and crystal form. The prosecution says that Mr Chen provided or allowed the use of the premises at Underdale for the purpose of selling the drug, notwithstanding that he was in custody from 28 January 2018 to 6 February 2018, after which he was on home detention bail with electronic monitoring.
The following facts were agreed:
43.Detective Murdock arrested the accused on 28 January 2018. The accused was subsequently refused bail at the Port Adelaide police station on the same day.
44.The accused was in custody from 28 January 2018 until 6 February 2018.
45.On 6 February 2018 the accused was released from custody, having been granted bail in the Port Adelaide Magistrates Court. The conditions of bail included conditions that he reside at 255 South Road, Renown Park and that he wear an electronic monitoring device while on bail.
46.Records held by the Department for Correctional Services do not register any breaches by the accused of the conditions of the bail agreement he entered into on 6 February 2018.
Mr Walker, counsel for the Director of Public Prosecutions, submitted, and Mr Allen agreed, that I could not convict Mr Chen of count 2 unless I was satisfied of his guilt of count 1, since the gravamen of element 1 of count 1 and element 3 of count 2 is the same; namely, that he provided or allowed the use of the premises for the purpose of each offence. I accept that submission.
Neither of the other elements of count 2 is disputed.
The Evidence
Mr Walker highlighted the following items of evidence during his closing address:
·The association between Mr Chen and cars owned by Duong Thanh Au
The silver Holden Mr Chen was driving on 6 September 2017, when he was stopped by Senior Constable Gough, was registered to Mr Au, as were the black Chrysler he was driving on 14 September 2017 and the white Lexus he was driving on 28 January 2018. Mr Chen had a photograph of the Chrysler on his mobile phone which was seized by police on 28 January 2018. Three sets of keys, which opened the locks at Underdale, Hectorville and the post office box at Marden were found in the rear of the Lexus on 28 January 2018. Clear links between Mr Chen and the black Chrysler and the white Lexus are established.
In the black Chrysler, during the search on 28 January 2018, the police found a hotel registration form containing the personal details of Ken Yi Lee,[16] an Optus account in the name of Yanong Xu for the electricity supply at 11A Watson Street, Hectorville, and a passport in the name of Kwok Yin Leung, the same name as was on the false International Driving Permit in Mr Chen’s possession on 6 and 14 September 2017.
[16] Exhibit P5.
Mr Chen was also found to be in possession of two items of identity in the name of Ho Man Hui on 28 January 2018. That same name appears on a statutory declaration[17] as the nominated driver of the black Chrysler when it was involved in an earlier traffic offence. This statutory declaration was found by the police during a search of 16 Cranbrook Avenue, Underdale on 7 February 2018.
[17] Exhibits P7 and P12.
These items of circumstantial evidence provide links between Mr Chen, Mr Au’s cars, Ken Yi Lee, Yanong Xu, 11A Watson Street, Hectorville and 16 Cranbrook Avenue, Underdale.
·The association between Mr Chen and Ken Yi Lee and Yanong Xu
Analysis of the call logs on the mobile phone in Mr Chen’s possession on 28 January 2018[18] reveals calls between that phone and the phones of Yanong Xu on 27 and 28 January 2018, and Ken Yi Lee between 22 and 28 January 2018. Photographs on Mr Chen’s phone include a photo of Ken Yi Lee’s driver’s licence.[19]
[18] Exhibit P6.
[19] Exhibit P9, p 2.
Another statutory declaration,[20] produced from police records, refers to the black Ford XR6 which was registered to Dong Ai Pan and which was in Mr Chen’s backyard on 6 September 2017. The declaration nominates Hao Wen Xu as the driver at the time of an earlier traffic offence. The address of Hao Wen Xu is stated as 34A Reid Avenue, Tranmere, which is actually the address of Ken Yi Lee. The same name was the addressee found on a shipping label at Underdale.[21] The address was nominated as ‘Laksa House’, which is a restaurant where Ken Yi Lee worked. The prosecution says this is another indirect link between Mr Chen and Ken Yi Lee.
[20] Exhibit P8.
[21] T 277.
A further link between Mr Chen and Yanong Xu was provided by evidence of surveillance of the people I have mentioned. That evidence (which is agreed) is that Mr Chen was seen driving the silver Holden registered to Duong Thanh Au to a place quite close to 16 Cranbrook Avenue, Underdale on 3 November 2017. On 6 November 2017, Mr Chen was observed driving the black Chrysler. He dropped off a woman at 255 South Road, Renown Park , then drove to 16 Cranbrook Avenue, Underdale and picked up another woman. He then drove to an oriental grocery in Mansfield Park, and was observed inside the store buying groceries. His female companion was Yanong Xu.
·The arrival of the ephedrine from China
The following facts are agreed:
34.Yixin Sun applied to rent two post office boxes in 2017 for a period of 12 months each. The post office boxes were box 170, Glenside and box 6004, Halifax Street, Adelaide.
35.In around November 2017 Mr Sun’s friend, ‘Ken’, who worked at a Laksa House Restaurant in Adelaide, asked Mr Sun for receipts of the post office boxes that Mr Sun was renting. Mr Sun provided receipts to ‘Ken’ containing the details of the two post office boxes he was renting.
36.In January 2018 ‘Ken’ told Mr Sun that he (‘Ken’) had a parcel at the post office box in Halifax Street that needed to be collected.
37.Mr Sun and ‘Ken’ attended at the Halifax Street post office separately. They met outside and walked to one of the counters inside the post office together on the same day in January 2018 to collect the parcel.
38.Mr Sun and ‘Ken’ collected a parcel from a member of staff at the Halifax Street post office after Mr Sun produced his identification to the staff member. The parcel was large and had to be placed on a trolley.
39.‘Ken’ took the parcel to his car, a brown Toyota Camry.
40.Mr Sun identified himself and ‘Ken’ as the two persons depicted in the CCTV stills which have been reproduced in Exhibit P35.
41.The person shown on the first page of Exhibit P35 is Ken Yi Lee.
42.The images shown in Exhibit P35 were recorded at the Halifax Street post office on 29 January 2018.
As I have already mentioned, by this time Mr Chen was in custody, having been arrested on 28 January 2018.
When the police searched 16 Cranbrook Avenue, Underdale on 7 February 2018, they found a box containing Chinese New Year decorations in a granny flat at the property. Between two layers of cardboard was a compressed white powdery substance which on later analysis proved to be ephedrine. Exhibit P20, volume 2, photographs numbered 072 and 073 show the box and wrapping. The decorations contained a total of 2.78 kilograms of ephedrine.[22] The box was addressed to Yixin Sun at PO Box 6004, Halifax Street SA 5000.[23] Clearly, this was the box collected by Ken Yi Lee and Yixin Sun on 29 January 2018.
[22] T 230.
[23] Evidence of Detective Sergeant Rowe at T 163.
The DNA evidence
Three toothbrushes were seized from each of 16 Cranbrook Avenue, Underdale and 11A Watson Street, Hectorville. The three toothbrushes from Hectorville were seized from the bathroom.[24] They were individually packaged in envelopes at the scene[25] to prevent cross-contamination. The three toothbrushes from Underdale were seized from a cup behind the sink in the bathroom.[26] They were all placed in the same envelope without separation.[27]
[24] Agreed Fact No. 18.
[25] Agreed Fact No. 20.
[26] Agreed Fact No. 19.
[27] Agreed Fact No. 21.
The DNA report from the Underdale toothbrushes is Exhibit P27. The results were:
· green toothbrush – single source – Yanong Xu the contributor – likelihood ratio greater than 100 billion:1 in favour of that hypothesis;
· pink toothbrush – insufficient DNA in sample;
· purple toothbrush – mixed profile – three contributors:
- Yanong Xu a contributor – likelihood ratio greater than
100 billion:1 in favour of that hypothesis;- Tianjun Xu not a contributor – likelihood ratio 110:1 in favour of that hypothesis;
- Fu Chen a contributor – likelihood ratio 400 million:1 in favour of that hypothesis;
- Ken Yi Lee - excluded
The expert witness Dr Phillipa Hearnden said that the analysis provided ‘extremely strong’ support for the proposition that Yanong Xu and Mr Chen contributed to the profile, Yanong Xu to the extent of 87% and Mr Chen to the extent of 11%. The third contributor has not been identified.
The DNA report from the Hectorville toothbrushes is Exhibit P26. The results were:
· pink toothbrush – single source – Yanong Xu the contributor – likelihood ratio greater than 100 billion:1 in favour of that hypothesis;
· blue toothbrush – insufficient DNA in sample;
· yellow toothbrush – mixed profile – three contributors –
- Yanong Xu – a contributor – likelihood ratio greater than 100 billion:1 in favour of that hypothesis;
- Tianjun Xu not a contributor – likelihood ratio 440:1 in favour of that hypothesis;
- Fu Chen – a contributor – likelihood ratio 57 million:1 in favour of that hypothesis;
- Ken Yi Lee not a contributor – likelihood ratio greater than 100 billion:1 in favour of that hypothesis.
Dr Hearnden said that this analysis provided ‘extremely strong’ support for the proposition that Yanong Xu and Mr Chen contributed to the DNA profile, Yanong Xu to the extent of 97% and Mr Chen to the extent of 3%. The third contributor has not been identified.
I accept Mr Walker’s submission that this evidence establishes that Mr Chen visited both premises. As to whether his visit was ‘fleeting’ or a substantial one, I am unable to form a conclusion. I accept that it is unlikely that his DNA was deposited on only one toothbrush of the three by talking or coughing over them. It is impossible to evaluate whether he had handled either toothbrush, or had kissed Yanong Xu who then cleaned her teeth, and the likelihood that this happened twice, or the possibility of tertiary transfer of his DNA onto the toothbrush.
·The presence of Tianjun Xu in Australia
Mr Walker submitted that since Mr Xu had only a three-month study visa[28] and had only recently arrived in Australia before he was arrested, there is a strong inference that his sole purpose in visiting Australia was manufacturing methylamphetamine. That being so, Mr Chen’s association with him means that he was also associated with that activity. I do not accept that either inference is valid. Tianjun Xu’s role in methylamphetamine manufacture is not clear. There is evidence of one fingerprint identical to his on the side of the metal pressure vessel which is depicted on page 2 of Exhibit P41. It is possible that he was there when Mr Chen visited 16 Cranbrook Avenue, Underdale, although not certain. There are no other indications in the evidence that they were associated or linked in any way. But even if he was there to cook methylamphetamine, I fail to see how that necessarily incriminates Mr Chen.
[28] Exhibit P12, photo 8.
There is much stronger evidence of Mr Chen’s association with Yanong Xu, but there is no indication that she touched any of the manufacturing equipment.
Further items of evidence linking Mr Chen to the 16 Cranbrook Avenue, Underdale address were ‘Ausworld’ delivery slips addressed to his residence at 255 South Road, Renown Park, a letter to Mr Chen’s then solicitors dated 6 November 2017,[29] and two further expiation notices addressed to Mr Chen at 255 South Road, all seized from 16 Cranbrook Avenue, Underdale. The clear inference is that these documents were taken there by Mr Chen. I accept that this provides a strong inference that Mr Chen’s visits to these addresses were not fleeting.
[29] Exhibit P12, volume 1, photograph no. 38.
·The fingerprint evidence
The fingerprint evidence adduced by the prosecution was not disputed by the defence. The following were agreed facts:
27.A metal vessel (WSH035) seized from 11a Watson Street, Hectorville on 7 February 2018 had three fingerprint impressions on it which were able to be identified by an expert fingerprint investigator, namely:
i. An impression on the top of the lid (Exhibit P41, p1, photograph 1296705-FSB_8077.JPG) was identified as belonging to someone other than Fu Chen, Tianjun Xu, Yanong Xu or Ken Yi Lee;
ii Two impressions on the underside of the lid (Exhibit P41, p2, photograph 1296705-FSB_8084.JPG) were identical to the left ring finger and right thumb of Fu Chen; and
iii. An impression on the side of the metal vessel (Exhibit P41, p2-3, photographs 1296705-FSB_8087.JPG and 1296705-FSB_8088.JPG) was identical to the left palm of Tianjun Xu.
28.A glass dish (WSH016) seized from 11a Watson Street, Hectorville on 7 February 2018 had a fingerprint impression on it which was able to be identified by an expert fingerprint investigator, namely:
i. An impression on the side of the glass dish (Exhibit P41, p3-4, photographs 1296705-FSB_8092.JPG and 1296705-FSB_8093.JPG) was identical to the left middle finger of Fu Chen.
29.A glass vessel (WSH029) seized from 11a Watson Street, Hectorville on 7 February 2018 had two fingerprint impressions on it which were able to be identified by an expert fingerprint investigator, namely:
i. An impression on the side of the glass vessel (Exhibit P41, p4-5, photographs 1296705-FSB_8095.JPG and 1296705-FSB_8096.JPG) was identical to the left thumb of Fu Chen; and
ii An impression on the side of the glass vessel (Exhibit P41, p5, photograph 1296705-FSB_8100.JPG) was identical to the left palm of Fu Chen.
30.A metal heat plate (from inside JK5, 18/A43623-11) seized from 16 Cranbrook Avenue, Hectorville on 7 February 2018 had two fingerprint impressions on it which were able to be identified by an expert fingerprint investigator, namely:
i. An impression on the exterior surface which was identical to the left middle finger of Ken Yi Lee and an impression on the exterior surface which was identical to the left ring finger of Ken Yi.
31.A second metal heat plate (from inside JK5, 18/A43623-11) seized from 16 Cranbrook Avenue, Hectorville on 7 February 2018 had two fingerprint impressions on it which were able to be identified by an expert fingerprint investigator, namely:
i. An impression on the exterior surface which is identical to the left palm of Ken Yi Lee and an impression on the exterior surface which is identical to the left ring finger of Ken Yi Lee (Exhibit P40, p 5, photographs 1297904-FSB_9083.JPG and 1297904-FSB_3669.JPG).
32.No other fingerprint impressions from any exhibit seized from 11a Watson Street, Hectorville or 16 Cranbrook Avenue, Underdale was identified or suitable for comparison.
33.It is not possible for any meaningful opinion to be given as to when any of the fingerprint impressions were left on the various items.
In summary, this evidence establishes that Mr Chen touched the lid of a pressure vessel, a glass dish and a glass vessel, all seized from 11A Watson Street, Hectorville. It also establishes that Ken Yi Lee touched two metal heat plates seized from Underdale.[30]
The vessel touched by Mr Chen is obviously connected with methylamphetamine manufacture. It is not a domestic utensil. The glass dish, on the other hand, is not necessarily associated with methylamphetamine manufacture. It is of a type commonly found in kitchens. The glass ‘vessel’ is more obviously a piece of laboratory equipment.
[30] I think Agreed Facts 30 and 31 incorrectly refer to 16 Cranbrook Avenue, Hectorville.
There was a colossal amount of equipment and chemicals associated with manufacturing methylamphetamine seized by the police from Underdale and Hectorville. Anyone who visited those addresses could not have been unaware of the presence of all this material, nor of its purpose. The purpose for which the equipment had been assembled was even more obvious when it is recognised that much of it, including the three items Mr Chen touched, had methylamphetamine residue on or in them.
Tenancy of the Underdale and Hectorville Properties
The Residential Tenancy Agreement for the Underdale property is represented in photographs comprising Exhibit P33. The name of the tenant was written in what appears to be Mandarin. The ‘Contact telephone number’ section contained the name ‘Ken Yi Lee’ and his telephone number appeared nearby. The tenancy was stated to commence on 26 September 2017 and the term was six months. The rent was $420 per week. A bond of $2,520 was paid. The signature of the tenant appears to have been written in Mandarin.
Attached to the copy of the Tenancy Agreement in Exhibit P33 is a photograph of part of a page of the passport of Kwok Yin Leung. This appears to be identical to the passport found in Mr Chen’s possession on 28 January 2018. The passport is Exhibit P34.
A photograph of the Residential Tenancy Agreement for 11A Watson Street, Hectorville is part of Exhibit P30. There is also a Residential Tenancy Application form with that document. In the Application, the first applicant was described as Ken Lee. His personal particulars were provided. The second applicant was described as Chushen Xie. His or her date of birth and passport number were provided. The application is dated 31 October 2017.
Mr Lee’s employment at Laksa House was stated, as was his next of kin (his sister), and references from his mother and father were provided.
The Residential Tenancy Agreement stated that the tenant was ‘Ken Lee’ and his mobile phone number was provided. The term was stated to commence on 1 November 2017 and to end on 30 October 2018. The rent was $480 per week. Chushen Xie was nominated as residing at the property.
The only piece of evidence linking Mr Chen to the tenancy of either property is the passport of Kwok Yin Leung.
Analysis
It is the prosecution case that Mr Chen either provided or allowed the premises to be used for the purpose of manufacturing methylamphetamine. The Oxford English Dictionary states that ‘to allow’ means to permit a person to do something, and ‘to provide’ means to make available for use, or supply. Both words obviously carry a connotation that the person allowing or providing has some interest in, or power or control over, that which is being allowed or provided. In order to prove its case beyond reasonable doubt, the prosecution must therefore show that Mr Chen had some interest in, or power or control over, these properties in order to provide or allow them to be used for the criminal purpose alleged. The evidence that he visited either or both of the properties, that he was associated, even closely associated, with people there, that he cleaned his teeth there, and even that he may have stayed the night, does not prove that.
There is no evidence of how the passport document came to be with the Tenancy Agreement. Possible inferences are that Mr Chen had it in his possession first, and gave it to Ken Yi Lee, who gave it to the letting agent, or that a third person produced it. Another inference is that Ken Yi Lee had it in his possession first and gave it to Mr Chen sometime after the tenancy was signed, and before 28 January 2018. There is no reason to prefer any one of those inferences over another.
The prosecution points to the evidence of Mr Chen’s association with Ken Yi Lee, Yanong Xu and Tianjun Xu which, it submits, when combined with the evidence of the passport document, shows that Mr Chen arranged the tenancy. I do not accept that. The evidence falls a long way short of proving that assertion beyond reasonable doubt.
Even if the prosecution could prove that Mr Chen assisted Ken Yi Lee in arranging the tenancy, that did not make Mr Chen the tenant.
Like the Underdale property, there is no evidence to support the contention that Mr Chen had the interest in, or legal power or control over, the Hectorville premises which would enable him to provide or allow the property to be used for the purpose of manufacturing methylamphetamine, or that he was storing equipment or chemicals at the property for that purpose.
There is additional fingerprint evidence that Mr Chen touched the three items of equipment used to manufacture methylamphetamine at Hectorville, namely the pressure vessel, the glass dish and the glass vessel. I agree with Mr Allen’s submission that there is no evidence of when or where he was when he touched them.
This evidence gives rise to the inference, albeit not a particularly strong inference, that Mr Chen may have assisted whoever was ‘cooking’ the methylamphetamine at Hectorville. But that is not the prosecution case. The fingerprint evidence does not show that Mr Chen ‘stored’ the equipment, nor does it show that he ‘provided’ or ‘allowed’ the premises to be used for the purpose of manufacturing methylamphetamine.
The prosecution’s alternative contention is that Mr Chen ‘stored’ equipment or chemicals for the purpose of manufacturing methylamphetamine. In my view, there is no evidence that he did anything that would amount to storage. The evidence that he touched each of three items of equipment on one occasion does not give rise to such an inference.
In those circumstances, element 1 of count 1 has not been proved, and the charge fails. Since the prosecution case in relation to count 2 is the same, that Mr Chen provided or allowed the premises to be used for the purpose of selling methylamphetamine, for the reasons expressed above, element 3 of count 2 has not been proved and that charge fails as well.
Verdicts: Count 1 – not guilty
Count 2 – not guilty
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