R v Collenette

[2013] SADC 49

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v COLLENETTE

Criminal Trial by Judge Alone

[2013] SADC 49

Reasons for the Verdict of His Honour Judge Muecke

22 April 2013

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES

Trial by judge alone.

The accused charged with one count of Manufacturing a Controlled Drug for Sale.

Verdict: Guilty

R v COLLENETTE
[2013] SADC 49

Introduction

1. About 7.30 or 8 o’clock in the morning of Wednesday 17 February 2010 a number of police officers from the Holden Hill CIB went to a house at Helen Terrace in Valley View. A resident of the house, Jennifer Hettich, opened the front door of the house when police knocked on it. One of the police officers went through the house to the rear of it where there was a laundry. There was a door to the laundry which gave access to a rear yard. The police officer could not open the laundry door as it was locked.  In the rear yard were two sheds adjacent to each other.

2. At about the same time another police officer was looking over a fence. He could see into the back yard of the premises. He saw the accused, Kyle Collenette, exiting the larger of the two sheds on the other side of the property in the back yard area. He saw the accused walk towards the rear of the house.

3. The police officer inside the laundry saw the accused approach the laundry door at the rear of the house. The accused gestured towards the inside of the door area. The police officer saw a key there. He used that key to open the laundry door. He went out into the back yard, together with the accused, and entered the larger of the two sheds in the back yard. There was a blanket covering the doorway. He found a woman named Leanne Debenham in the shed. He took Ms Debenham into the house. He said she appeared to be agitated and twitchy. He thought she was under the influence of a drug. When Ms Debenham was in the house she and Ms Hettich had an altercation, or as Mr Stokes, of counsel for the accused put it and one of the police officers agreed: “Hettich … commenced to berate against Debenham and Collenette being together in the shed”. That same police officer agreed that shortly after Ms Debenham seemed to “be having a more marked reaction to whatever it was that (the police officer believed) she may have taken”. Ultimately police conveyed her to hospital and he saw her shackled onto a bed. The police officer said: “She was spinning circles on top of the bed”.

4. That same police officer went back into the shed at the rear of the house after leaving Ms Debenham in the house. He described a smell in the shed as “a chemical type smell”. He said he searched the shed. He saw a pool table in the middle of the shed. He saw a yellow tub with a milky-type liquid in it at the northern end of the shed. The northern end was the end furthest away from the house. He said there was another table in the north-western corner of the shed which was covered with a lot of property. Underneath that table there was a coffee jar which had a liquid-type substance in it with some sediment at the bottom. The top was on but it was loose. He said it smelt as a chemical. He left everything that he saw where he found them.

5. Later on another police officer took a video of the interior of the shed. That video is Exhibit P4. Later still other police officers arrived to process the contents of the shed.

6. The police officer who videoed the interior of the shed arrived at the house and property at about twenty past twelve that day. He had, in his experience as a police officer, seen numerous clandestine drug laboratories. He was a Detective Sergeant from the Drug Investigation Branch. He became the exhibits officer for the police officers who searched the shed.

7. Other police officers, principally from the Holden Hill CIB, later searched the house. A Detective Brevet Sergeant was the exhibits officers for that search.

8. That officer also spoke of the altercation that occurred between Ms Hettich and Ms Debenham when Ms Debenham and the accused were taken into the house. He said that Ms Hettich was quite angry. She was yelling at the accused and at Ms Debenham. Police separated Ms Hettich from the other two. Ms Hettich told that police officer that she had kicked Mr Collenette out, she knew he was in the shed but she did not know that Ms Debenham was there also. She said she had kicked Mr Collenette out because she had seen a message on his phone and thought he was having an affair. She locked the back door of the house when she kicked him out.

   The charge

9. The accused is charged with Manufacturing a Controlled Drug for Sale. (Section 33(3) of the Controlled Substances Act, 1984).

10. The particulars alleged are that the accused, between the 1^st day of January 2010 and the 18^th day of February 2010 at Valley View, knowingly or recklessly manufactured a controlled drug, namely methylamphetamine, intending to sell some or all of the drug or believing that another person intended to sell some or all of the drug.

    Some general matters

11. The crown must prove the charge. The accused does not have to prove anything. He does not have to prove his innocence. At his trial he did not have to give evidence, nor did he have to call witnesses. Even if he does do either of those (as is the case here insofar as his giving evidence is concerned), it is still for the crown to prove the charge.

12. The crown must prove the charge beyond reasonable doubt. Further, the crown must prove each and every element of the charge beyond reasonable doubt.

13. Nothing short of proof by the crown beyond reasonable doubt will do. It is not enough for the crown to show a mere suspicion of guilt, or to show that the accused is probably guilty. In this case the accused is not to be convicted of the charge against him unless I am satisfied that his guilt has been proved beyond reasonable doubt.

14. I am not required to be satisfied of the accused’s version in this case. The burden of proof lies elsewhere and part of the relevance of the evidence of the accused is to consider whether it assists in casting a reasonable doubt on the evidence of the prosecution. Such a doubt may arise because of that, or for any other reason or reasons, and it is my duty to consider whether that is the case in the present matter.

15. Although one focus will probably be on the accused and his credibility, even if I do not believe him on crucial issues, that does not mean I must find him guilty. I still have to be satisfied that the crown has proved each element of the charge against him beyond reasonable doubt.

16. I must consider carefully all the evidence I have heard and counsel’s submissions. I must decide which witnesses are credible and reliable, remembering that an honest witness can be mistaken and unreliable. In deciding whether a witness is credible and reliable I must use my life experiences and common sense. I have the right to believe or disbelieve. I may believe some of the evidence of a particular witness, and disbelieve other evidence that witness gave.

17. I must consider only the evidence that I heard at the accused’s trial. I must put aside any feelings of sympathy, anger or distaste, and even prejudices (if I know I have any), and carry out my task calmly and objectively.

18. If, in these reasons, I speak about matters being “proved” or “satisfied” or “established”, or any other word or expression of that kind relating to the proof of matters in issue, I mean, although I may not say so on every occasion, “proof beyond reasonable doubt”.

    Manufacturing a Controlled Drug for Sale

19. A person who manufactures a controlled drug intending to sell any of it, or believing that another person intends to sell any of it, is guilty of an offence.

20. To prove that offence here the prosecution must prove beyond reasonable doubt each of the following four legal elements or ingredients:

    1.That the accused manufactured a substance.

    2.The substance was a controlled drug.

    3.The accused knew that the substance was a controlled substance or a controlled drug.

    4.The accused intended to sell the drug or any of it, or he believed that another person intended to sell that drug or any of it.

21. An accused person will have manufactured a substance if he undertook any process by which the drug is extracted, produced or refined; or if he took any part in the process of manufacture of the substance.

22. A person takes part in the process of the manufacture of a controlled drug if he directs, takes or participates in any step, or causes any step to be taken, in the process of manufacture of the drug.

23. In this case the crown alleges that the accused stored equipment or substances or materials for the purpose of the manufacture of methylamphetamine. The accused could also take a step in the process of the manufacture of methylamphetamine if he provided or allowed the use of the jointly occupied premises at Valley View for the purpose of the manufacture of methylamphetamine. If the crown proves any of the above beyond reasonable doubt, the accused would be guilty of the offence charged against him.

24. The second element or ingredient of the offence charged is that the substance manufactured was a controlled drug. If I am satisfied that the accused manufactured methylamphetamine, that substance is a controlled drug and I would therefore be satisfied that this second element is proved.

25. The third element or ingredient of the offence charged is that the accused knew that methylamphetamine was a controlled drug. I have no doubt about this element. I am satisfied that the accused knew in January and February 2010 that methylamphetamine was a controlled drug.

26. The fourth and final element of the offence charged is that I must be satisfied beyond reasonable doubt the accused intended to sell that drug or any of it, or he believed that another person intended to sell that drug or any of it.

27. The accused’s case here is that he played no part in any manufacture of methylamphetamine in the shed at the rear of the house at Valley View, and that he did not intend to sell it to anyone, nor did he believe that any other person intended to sell any of it to anyone.

    Circumstantial evidence

28. The prosecution bases its case against the accused on circumstantial evidence.

29. Circumstantial evidence is evidence of the circumstances surrounding an alleged offence from which the prosecution asks me to infer, beyond reasonable doubt, that the accused committed that offence.

30. The amount of circumstantial evidence which will suffice to prove a charge beyond reasonable doubt will vary from case to case. The number of circumstances proved can vary enormously and so can the weight of the individual circumstances. However, my process of reasoning remains the same. First I must decide what facts I accept as established by the evidence, then I consider what inference or inferences I am prepared to draw from the facts which I find established.

31. Each item of circumstantial evidence must be carefully examined. When deciding whether I accept that a particular fact has been established, I am entitled to take into account the whole of the evidence. When considering what inference I am prepared to draw from the facts which are established, I do not reject an individual circumstance simply because no inference can be drawn from that circumstance alone. Instead I keep that fact in mind and I may consider it in conjunction with the other facts that I find are established. Regard must be had to the totality of the circumstances and united force of all the circumstances put together. In other words, the proper approach is for me to assess the combined effect of those items of circumstantial evidence which I accept and to consider further whether, as a matter of inference, they satisfy me beyond reasonable doubt that the accused committed the offence.

32. In considering circumstantial evidence I must have regard to the possibility that it does not necessarily point to guilt. I cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty of the charge. In other words, before I can be satisfied that the accused is guilty of the charge, 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 proved enables me to draw.

    Expert evidence

33. The ordinary rule is that witnesses may speak only as to facts and not express their opinions. An exception to that general rule is that persons duly qualified to express some opinion in some particular area of expertise are permitted to give evidence of their opinions upon relevant matters within the field of their expertise.

34. However, the law is that I am not bound to accept such opinion evidence. I remain the sole judge of the facts and I am entitled to assess, and accept or reject, any such opinion evidence as I see fit.

35. It is for me to give such weight to the opinions of the expert witnesses as I think they should be given having regard to the qualifications of the witness, the partiality or otherwise of the witness and the extent, if any, to which the witness’s opinion accords with such other facts as I find proved.

    The prosecution case

36. In the introduction to these reasons I referred to some of the circumstances of the police visiting the house at Helen Terrace, Valley View on the morning of Wednesday 17 February 2010.

37. There was not much dispute about the matters I set out in that introduction. I note, however, that Ms Hettich did not give evidence at the trial although I was told that she would. Accordingly, what she allegedly said to a police officer that morning in the house was hearsay which was not confirmed by her, although some of what was said is consistent with what the accused said in his evidence at the trial. There is one aspect of that evidence that may be important.

38. During the crown case at trial I heard evidence as to what police found in the house at Helen Terrace, in the shed at the rear of it, and in other places. What police found is depicted in Exhibit P2 and is described in Exhibit P3. That latter exhibit describes the item found, where it was found and what was done with it. I now set out some of these items. I set them out under three headings being shed, house and elsewhere. The shed is the larger of the two sheds in the back yard at Helen Terrace, the house is inside the residence, and elsewhere is self-descriptive.

    Shed

022	Used ph test strip. Located on table along western wall opposite door.
023	Clear plastic 600ml drink bottle labelled kyneton springs orange cont approx 150ml of brown liquid. Located on table along western wall opposite door.
024	500gm glass jar with lid cont 4 layered liquid and solid. upper layer 100ml of clear liquid ph7. 2nd layer floating light brown solid. 3rd layer brown liquid. ph14. bottom layer light brown solid. Located in box under table along western wall opposite door.
025	Green bag containing multiple lengths of hose and miscellaneous glassware – one pyrex millpore with residue on neck and 4 mercury thermometer sticks. mercury sticks separated into a plastic bag. Located on floor between 8 ball table and eastern wall.
026	Box labelled sensidyne gas detector tubes – containing 10 tubes. Located on floor between pool table and western wall.
027	Travel master single portable gas stove in black box with butane canister attached. Located in bottom of tv cabinet on southern wall of shed.
028	5 litre clear plastic container with red lid labelled pool resources pty ltd hydrochloric acid cont approx 2 litres of clear liquid. ph 0. field test white. Located on floor in front of tv cabinet southern end of shed.
029	1 litre clear plastic container with black lid labelled black and gold methylated spirits cont approx 700ml clear liquid. ph7. Located on middle shelf of cupboard in south eastern corner.
030	1 litre clear plastic container with black lid labelled black and gold methylated spirits cont approx 900ml clear liquid. ph7. Located on middle shelf of cupboard on south eastern corner of shed.
031	Glass jar 737 gm labelled bertoli five brothers summer tomato basil sauce cont dual layered fluid, upper layer clear ph7, bottom layer brown, ph4. Located on southern end of pool table middle of shed.
032	Silver 5 litre jerry can cont. approx 2.5 litres of dual layered liquid. top layer clear liquid ph 7 and appears residual, bottom layer yellow liquid ph 14. Located on pool table at southern end in middle of room.
033	Cardboard box labelled acido-l-mal-ico containing 6 plastic bottles, 2 with red lids, 4 with blue lids, each containing varying amounts of clear liquid. ph 9 for all. Located on northern end of pool table in middle of room.
034	Empty small white plastic container labelled coldguard cold and flu tables (labelled for each tablet to contain 30mg pseudoephedrine per tablet. Located on northern end of pool table in middle of room.
035	Cardboard box labelled Harris filter papers 10-12 cup cont. 16 unused filter papers. Located in drawer sitting on chair at northern end of pool table.
036	Small clear plastic container without lid with brown residue and staining consistent with iodine. no duplicate sample. Located in pile of rubbish to left hand side of door on ground.
037	11 used filter papers. Located in pile of rubbish left of door on floor.
038	10 empty blister packs – 4 packs labelled chemists own cold and flu day/night, 6 blisters within labelled pse hcl 30mgs. 4 packs labelled codral original day and night, 6 blisters within labelled pse hcl 30mgs. 2 packs labelled pharmacist cold and flu non drowsy, 12 blisters labelled pse hcl 30mgs. Located in pile of rubbish to left of door on floor

House

006	Glass pyrex oval dish containing white spatula and sticky brown paster. Located in laundry in cupboard under laundry sink.
007	Small plastic tupperware container with butterfly on lid containing off white solid (approx 200mg). Located in laundry in cupboard under sink.
008	200ml glass coffee jar with brown lid containing 175ml of clear liquid ph0 – field test white. Located in laundry on top shelf of cupboard opposite washing machine
009	100 gm glass jar labelled nescafe gold with brown lid cont approx 20gm of white crystalline powder – ph 7. Located in laundry on top shelf of laundry cupboard opposite washing machine.
010	Silver sunbeam coffee grinder with white residue around blade, bowl and lid. Located in laundry on top shelf of laundry cupboard opposite washing machine.
011	Black plastic 500ml container labelled diggers hydrochloric acid cont approx 400ml of clear liquid ph0. field test positive for hydrochloric acid. Located in laundry on top shelf of laundry cupboard opposite washing machine.
012	1 litre clear plastic bottle labelled diggers acetone – small amount (5ml) of clear liquid. ph7. Located in laundry on top shelf of laundry cupboard opposite washing machine.
013	1 litre plastic bottle labelled black and gold mineral turpentine cont approx 600 ml clear liquid ph7. Located in laundry on top shelf of laundry cupboard opposite washing machine.
014	Plastic bucket containing two lengths of clear hose, one 80cm long with yellow tape at one end, and one 1.5 metre long with black tape through middle. Located in laundry on bottom shelf of cupboard adjacent washing machine.
015	Aqua pro submersible pump with 5cm of hose attached with red tape. Located in laundry on 2nd to bottom shelf of cupboard adjacent washing machine.
016	Green protector safety mask with filters. filters removed. Located in laundry on 2nd to bottom shelf of cupboard adjacent washing machine.
017	Eco test ph2 – ph tester in working order with off white residue around probe. Located in laundry in box on middle shelf of cupboard adjacent to washing machine.
018	Blue plastic container with yellow lid cont. quantity of ph test strips unused. Located in laundry in box on middle shelf of cupboard adjacent to washing machine.
019	Breville silver coffee grinder with traces of white powder on lid and blade. Located in kitchen room on bottom shelf of cupboard left hand side of stove.

Elsewhere

002	50cm glass condenser with piece of tubing attached to one end – contains residue. Located hidden in gutter on south-western corner of shed.
003	Glass elbow joint with liquid residue. Located on back patio in pot in garden on western side of shed.
004	Glass elbow joint with liquid residue (cracked glass). Located on back patio in outside pot along western side of shed.
005	Glass round bottom flask 500ml containing clear traces of liquid and white residue. To remain in plastic container. Located on back patio in plastic container inside pot on patio on western side of shed.
020	Blue bucket cont approx 1 litre of clear liquid with white solid suspended. ph14. liquid decanted. Located on back patio outside of north-western corner of shed and lean to.
021	White 2kg plastic container labelled mechanix caustic soda cont. approx 1.8 litres clear liquid with white solid suspended. ph 14. liquid decanted. Located on back patio on shelf to left of door of shed – outside.

1. The numbers in bold referred to above are the numbers under the individual photographs in Exhibit P2. Those photographs depict the items described above. There are two photographs commencing 033. The first depicts six plastic bottles in a box. That is as police found that item. 033A is a photo of the same item, but the six plastic bottles have been removed from the box. Similarly with photographs commencing 038. Photograph 038 depicts all of the ten empty blister packs police found. 038A-038E are individual photographs of the items in 038.

2. Dr Caroline Ward gave evidence before me. Doctor Ward is a forensic scientist at Forensic Science South Australia. She works in the illicit drug section there. She is involved in testing of and reporting on substances. She also attends at and analyses evidence from clandestine laboratories. She has been to at least fifty such laboratories since 2005.

3. Dr Ward was very impressive. She gave her evidence clearly and convincingly. I am very confident that I can rely on what she told me.

4. Dr Ward went to the house at Helen Terrace, Valley View on 17 February 2010. She assisted with the search, particularly of the shed. She assisted with the seizure of certain items found there.

5. Dr Ward told me of three main steps in the production of methylamphetamine if one started with pseudoephedrine. Those three steps are the extraction of the pseudoephedrine, the manufacturing stage and finally the purification of the methylamphetamine produced. She described in detail each of these three steps.

6. In the extraction stage Dr Ward referred to the crushing of medication tablets containing pseudoephedrine; the use of an alkaline solution such as caustic soda and water; the use of a solvent in which the pseudoephedrine becomes dissolved and the separation of the alkaline solution from the organic solvent; evaporation by heat or otherwise of the solvent to leave the pseudoephedrine as solid residue; and the use of glass dishes and heat to effect such evaporation quicker. Once evaporation has completed pseudoephedrine in powder form remains.

7. Dr Ward described the manufacturing stage in which it was common to use iodine and hypophosphorous acid. She described the use of a reaction flask to combine these ingredients which are then heated and brought to boil. She described the use of a condenser to condense vapours back into the solution. She said that it does not much matter what containers are used but it is more effective if the correct glassware, such as round bottomed flasks and retort stands, is used. She described that after boiling for about an hour methamphetamine is produced in this recycling process.

8. Dr Ward described the distillation phase during which the condenser is shifted from vertical to horizontal; caustic soda is added to make the acidic solution alkaline; and then methyamphetamine can be distilled from that mixture. Testing as to alkalinity by the use of pH strips or metres is then done, and the flask is heated again with the vapours condensing and running out of the flask. Base oil is left and that oil is the methylamphetamine. That oil is converted to powder by adding hydrochloric acid and evaporating.

9. Dr Ward said that the shed at the house at Helen Terrace into which she went on 17 February 2010 was a “hot zone”. She explained that areas are classified as hot zone, warm zone, or cold zone. She said she described the hot zone as the area containing chemicals or items of interest. The area around that, where police or scientists are processing items and handling the chemicals, is called the warm zone and the safe area outside that is the cold zone. She described in what she called the hot zone a mild chemical odour.

10. Dr Ward was then asked about various items found in the shed, in the house and in the area between the house and the shed at Helen Terrace. I have referred earlier to those items by number, description, and location in which they were found. Dr Ward was asked to comment as to whether certain of these items may relate to the three phases of methyamphetamine production. I set out those items under each of those phases and refer to Dr Ward’s comment on each of them.

    Extraction phase

010	Dr Ward said this is a coffee grinder which was tested and which was found to contain traces of pseudoephedrine. Located in laundry in house.
019	Dr Ward said this is another coffee grinder which was tested and found to contain traces of pseudoephedrine. Located in kitchen room in house.
020	This is a blue bucket which Dr Ward described as containing clear liquid with a white solid. She described the liquid as strongly alkaline and it contained toluene and pseudoephedrine. She described the contents of this bucket as being atypical and said it was possible that it simply contained waste products which had been thrown into the same bucket. Located on back patio.
021	Dr Ward said this is a plastic container labelled caustic soda with a liquid in it. The liquid was strongly alkaline and contained pseudoephedrine. Located on back patio.
024	Dr Ward described this as a jar with two layers. The larger layer was the lower layer which was strongly alkaline. The upper layer contained toluene and in that was pseudoephedrine and methamphetamine. Dr Ward said that the contents of this jar were consistent with the extraction of pseudoephedrine using the method of which she had earlier given evidence. Located in shed.
032	Dr Ward described this as a tin with two layers. The layers were similar in appearance to those in 024 and were tested to contain similar ingredients to those in 024. Located in shed.
034	Dr Ward said this is a container which is labelled as having contained 20 flu tablets each containing pseudoephedrine. Located in shed.
037	Dr Ward described these as used filter papers. One was analysed and was found to contain pseudoephedrine and other chemicals with a minor amount of methylamphetamine. She said that with the exception of the methylamphetamine the pseudoephedrine and other drugs are all within various pharmaceutical preparations which contain pseudoephedrine. That indicated to her that that filter paper had been used or come into contact with material from tablets containing pseudoephedrine. Located in shed.
038	Dr Ward said these are 10 empty blister packs originally containing 72 tablets each containing pseudoephedrine. Located in shed.

The manufacturing phase

1. Dr Ward said that iodine is required for this stage, as is hypophosphorous acid. She said that iodine was not found at the premises but can be purchased. She said that hypophosphorous acid was also not found at the premises but that it can be produced. She said that it is produced with hydrochloric acid and hypophosphite salt.

002	Dr Ward said this is a glass condenser with residue inside it. The residue was analysed and methylamphetamine, pseudoephedrine and other drugs were detected. She said that the contents indicated that the condenser was used in the manufacturing process and the presence of pseudoephedrine indicates that there was a small amount of unreacted pseudoephedrine after the production of methylamphetamine. Located in gutter of shed.
005	Dr Ward said this was a round bottomed flask which is a typical reaction vessel. No drugs were detected in it but that was not significant to Dr Ward. She said it is fairly easy to rinse out the flask and remove residual traces of a drug. Located inside a pot on back patio.
008	Dr Ward said this was a jar containing hydrochloric acid. Located in laundry in house.
009	Dr Ward said this was a jar which held some crystalline powder. It was identified in her laboratory as a hypophosphite salt. Located in laundry in house.
011	Dr Ward said this was a plastic container labelled and containing hydrochloric acid. Located in laundry in house.
014	Dr Ward said this was bucket containing two lengths of tubing. That was the sort of tubing that she had seen used to transport water to condensers in the manufacture of methylamphetamine. Located in laundry in house.
015	Dr Ward said this was a small electric pump with a small piece of tubing attached. It is a submersible pump so it could either be a water pump or an air pump. She said it is consistent with the items she had seen which could be used to pump water out of a vessel, like a bucket into a condenser. Located in laundry in house
016	Dr Ward said this was an air purifying respirator with two filters attached. It is something she often sees at these types of alleged laboratories. They are used because the chemicals that are used and produced can smell and can also be toxic, so wearing some sort of protection like that is a good idea. The mask contained two filters. Methylamphetamine was detected from within one of the filters. Dr Ward said that indicates that it is probably methamphetamine vapour that has been caught on the material because it was inside the unit and therefore not exposed to the outside. It indicated to her that methylamphetamine had been present in the oil form when that mask was used because the oil is the form that will become vapour. She said it is very likely that it was being heated at the time and therefore some vapours had been formed. Located in laundry in house.
025	Dr Ward said this was a bag holding numerous lengths of tubing, some thermometers and a piece of glassware. The tubing she said was typical of the sort of material that is used in the manufacturing stage. Located in shed.
027	Dr Ward described this as a portable gas cooker capable of producing heat. It was not tested to see if it was in working order but a gas canister was present in it. Located in shed.
028	Dr Ward said this was a container containing hydrochloric acid. Located in shed.

The purification (distillation) phase

003 004	Dr Ward said both these items are glass elbow joints. Dr Ward said they both contained liquid residue which on analysis resulted in methamphetamine and chlorpheniramine. She said the presence of these items were significant to her because it indicated that the joints had been used in the purification process of methylamphetamine. Located in pots on back patio.
006	Dr Ward said this item is a glass dish within which was a spatula and some brown paste. Within the brown paste she identified methylamphetamine and codeine. She said that the combination of those two substances does not directly fit with any part of the manufacturing process although they could have come from two different sources. She said that the dish had those two substances on it. Located in laundry in house.
007	Dr Ward said this is a container with off-white material in it. No drugs were detected in the material. Located in laundry in house.
012	Dr Ward said this is a bottle labelled “acetone” holding a clear liquid. She said there was no specific use for acetone in the manufacturing process, it is simply a good chemical solvent which can be used for cleaning anything you want to dissolve. She cannot say that it was not used in a manufacturing process but there is no requirement for it. Located in laundry in house.
017	Dr Ward said this was an electronic pH metre. It was in working order and residue on the meter was identified as containing methylamphetamine and amphetamine. She said the presence of amphetamine was probably produced as a minor by-product to the methylamphetamine. Located in laundry in house.
018	Dr Ward said this item was a container holding a number of unused pH test strips. Located in laundry in house.
022	Dr Ward said this item is a used pH test strip. Located in shed.
023	Dr Ward said this is a bottle holding some brown liquid. The liquid was found to be alkaline and methylamphetamine and pseudoephedrine were identified within it. She said that “given that it’s alkaline and does contain some methylamphetamine it’s possible that it’s waste material from the cook – sorry, from a manufacture, however, that wasn’t proven so that’s all I can say really”. Located in shed.
026	Dr Ward said this is a box labelled “gas tech detector tube”. It held ten tubes. She did not consider them to be particularly significant but they were logged “simply because you could use things, equipment like that in a laboratory setting to test for gases, whatever their purpose is”. Located in shed.
029 030	Dr Ward said both these were bottles labelled methylated spirits. She said that methylated spirits can be used in one method of pseudoephedrine extraction but there was no evidence to suggest to her that that method was used in this particular matter. Located in shed.
031	Dr Ward said this is a jar which held two layers of liquid. Within one layer were identified the solvents toluene, xylene, ethanol and acetone. No drugs, however, were detected. Located in shed.
033	Dr Ward said this was a box which held plastic bottles which appeared to be labelled in a foreign language. The liquids in them were found to be weakly alkaline. They were not further sampled because a decision was made that they were not significant. Located in shed.
036	Dr Ward said this was plastic tub with some residue. The residue was analysed to try and establish whether it was from iodine but that conclusion was not reached. Located in shed.

1. Dr Ward was asked by Mr Morrison, of counsel for the DPP, to “step back and look at all the items that (she) observed at the scene”. She was asked how she would describe the ability of producing methylamphetamine from those items. Dr Ward replied:

   AIn terms of actually producing methylamphetamine, the equipment was there to efficiently perform that reaction. The two reagents that are required to do that reaction were not located, however one of the reagents could easily made from something that was at the scene.

   QAre you referring to the hypophosphorous acid there.

   AYes in terms of the purification, effectively the glassware, the equipment for distillation stage was present and further equipment for ph testing was also located.

   QDid any items indicate that pseudoephedrine extraction had taken place.

   AYes, two items which we have discussed with the htv24 (024) and htv32 (032), are both very consistent with waste material from pseudoephedrine extraction.

   QDid any items indicate that they had been used in the production of methylamphetamine.

   AWell the condenser had methylamphetamine in it, that can either come from the manufacture stage or the purification stage. Sorry and the elbow joints would be used, sorry they contained methylamphetamine and they would be used in a purification stage as well.

2. The reagent that was not located and could not have been made from something at the scene was iodine.

3. Dr Ward told me that a standard recipe for the production of methylamphetamine is that for every gram of pseudoephedrine solid used a gram of iodine and a millilitre of hypophosphorous acid is required. She was asked to assume that 20 grams of pseudoephedrine powder was present at the premises and that 20 grams of hypophosphorous salt was present. She was asked how much methylamphetamine might have been produced assuming 20 grams of iodine was available. Dr Ward said that upon those assumptions 20 grams of pseudoephedrine could produce around 20-30 grams of methylamphetamine. She said that was a conservative yield. She had assumed that the 20 grams of hypophosphorous salt could be used to produce 20 millilitres of hypophosphorous acid “fairly easily”.

4. Dr Ward told me that approximately 2.1 grams of pseudoephedrine were in the tablets that had previously been in the blister packets in item and photograph 038. She said that from the tablets that were in there about approximately a gram of methylamphetamine could be produced. She was not asked about the tablets in item and photograph 034 but she had previously said that each of the 20 tablets that were in that container each contained 0.03 grams of pseudoephedrine. That would produce 0.6 gram of pseudoephedrine.

5. When Dr Ward was cross-examined by Mr Stokes she said that she had analysed some hand swabs that were taken from the accused, Ms Debenham and Ms Hettich. She said that four swabs from the left and right hands of each of those three people had been taken. That made twelve swabs in total. She said that methylamphetamine was detected on three of the four swabs taken from the accused’s hands. No methylamphetamine was detected on the fourth swab from the accused, and no methylamphetamine was detected on the four swabs taken from each of Ms Debenham and Ms Hettich.

6. Dr Ward told me that the three sets of scales that had been found at the scene at Helen Terrace had been tested and methylamphetamine was detected on each of them. She said that two razor blades that had been found were checked and pseudoephedrine and codeine was detected on them. She said that two cosmetic containers that was said to be found in a bedroom in the house (item 5) were found to have traces of methylamphetamine. She said that two resealable bags that were also found (item 28) were tested. One contained 0.12 grams of methylamphetamine, one contained 0.05 grams of methylamphetamine, and the third contained about 0.01 grams of methylamphetamine.

7. Finally, Dr Ward said in cross-examination that her opinion was that methylamphetamine had been manufactured at these premises and that the process used was most likely the process she told us about. She said that what we do not know is when that had occurred and whether the items she had referred to had been used in that way at Helen Terrace or somewhere else.

8. Ms Yvonne Dillon is a fingerprint investigator. She had been one for about nine years before she examined the case file from the Crime Scene Investigation Branch in relation to some fingerprints that were said to have been located in various places at the Helen Terrace house and property.

9. Before she told me about her conclusions as to ten fingerprint impressions found there Ms Dillon told me about the different levels of opinion she could offer in relation to fingerprints generally, and in relation to the fingerprints at Helen Terrace in particular. She said:

   AWe can come to the conclusion that the unknown fingerprint did not come from the known person. We can come to the conclusion that it did so the fingerprints are identical. We can come to the conclusion that there is insufficient detail present in the unknown print, however, what is there is consistent with a known print and when that occurs we cannot exclude that person as having not left the fingerprint.

10. She explained that the third level of opinion to which she just referred meant that there was insufficient detail in the fingerprint for her to conclude that the unknown fingerprint was not from the known person or that the unknown fingerprint was from the known person, but everything that can be seen in the unknown fingerprint is consistent with the known fingerprint and therefore the person with the known fingerprint cannot be excluded as having left the unknown fingerprint.

1. The fourth and final category of opinion is that there is insufficient detail in the unknown fingerprint to identify anyone or say anything.

2. Ms Dillon had examined ten fingerprints from Helen Terrace. The ten fingerprints she examined were found on four items that were found there. Those four items were those described in Exhibit P2 and photographed in Exhibit P3 as 005, 006, 009 and 024.

3. 005 is a glass round-bottomed flask containing traces of liquid and white residue. It was located in a plastic container inside a pot on the patio on the western side of the shed at the rear of the house. It contained one fingerprint. The flask and the fingerprint tab are seen in Exhibit P5, photos 2 and 3.

4. 006 is a glass pyrex oval dish containing a white spatula and sticky brown paste. It was located in a cupboard under the sink in the laundry of the house. It contained six fingerprints. The container and fingerprint tabs are seen in Exhibit P5, photos 4 and 5.

5. 009 is a glass jar labelled Nescafe Gold with brown liquid and white crystalline powder. It was found on the top shelf of the cupboard opposite the washing machine in the laundry in the house. It contained one fingerprint. The jar and the fingerprint tab are seen in Exhibit P5, photo 7.

6. 024 is a glass jar with a lid containing layers of liquid and solid. It was found in a box under the table which was along the western wall of the shed opposite the door. It contained two fingerprints. The jar and fingerprint tabs are seen in Exhibit P5, photo 6.

7. Ms Dillon’s evidence as to the ten fingerprints is summarised in the following chart that I prepared.

Fingerprint 1	005	Insufficient detail to identify anyone.
Fingerprint 2	006	Insufficient detail for a positive identification but it cannot be excluded that this fingerprint came from the accused’s left ring finger.
Fingerprint 3	006	Insufficient detail to identify anyone.
Fingerprint 4	006	Insufficient detail to identify anyone.
Fingerprint 5	006	The accused is excluded as having left this fingerprint.
Fingerprint 6	006	The accused is excluded as having left this fingerprint.
Fingerprint 7	007	The accused is excluded as having left this fingerprint.
Fingerprint 8	009	This fingerprint is identical to the accused’s right thumb.
Fingerprint 9	024	Insufficient detail to make a positive identification but is consistent with the accused’s left ring finger.
Fingerprint 10	024	Insufficient detail to make a positive identification but cannot exclude that the fingerprint was left by the accused’s left little finger.

1. Under cross-examination by Mr Stokes, Ms Dillon said that she and other fingerprint experts cannot age any fingerprint.

2. Detective Brevet Sergeant Hudson gave evidence that he had been a member of the Drug Task Force and its subsequent titles for 16½ years. He had done a course involving clandestine drug laboratories. He said he is familiar with the process of manufacturing methylamphetamine using the extraction, manufacture and purification processes. He is familiar with the packaging of methylamphetamine and the cutting and sale of it. He said that he often finds electronic scales present at clandestine drug laboratories, and he often finds small plastic deal bags for the packaging of methylamphetamine. He said that it is also common to find dimethyl-sulfone and glucose which can be used “for cutting or stepping an illicit drug” such as methylamphetamine. He said that he is aware that even small laboratories are capable of producing enough methylamphetamine for sale. He gave evidence about the cost of a variety of different quantities of that drug.

3. Mr Hudson agreed with Mr Stokes that methylamphetamine users can use scales to weigh drugs they have purchased to check their weights and that users are also known to cut methylamphetamine they have bought for their own purposes rather than for any commercial purpose. Mr Hudson said that would depend on the drug’s purity in the first place. He said that if it was a high level of purity such a person might cut it for the purpose of selling it to others.

4. Mr Hudson agreed with Mr Stokes that police often find a large quantity of deal bags and also “tick lists” and amounts of money. It was conceded in one of Mr Stokes’ question that the absence of those things does not mean that someone is not dealing, but it was suggested that the absence of them may point to the fact that the occupants are not dealing. Mr Hudson said that would depend on the amounts found at the premises.

5. The final witness called by Mr Morrison was Constable Phillips. He interviewed the accused at the Holden Hill Police Station on 17 February 2010 after his arrest. The first interview commenced at 9.25 am and is Exhibit P7. A transcript was tendered as an aide memoire and is Exhibit P7A.

6. During that interview the accused said that the house at Helen Terrace was Ms Hettich’s but that he lived there. He gave his current address as 18 Helen Terrace, Valley View. It was an agreed fact that he resided there. When it was put to him that he was in the back shed at the time that police came he answered “I was. I’m always in and out of that shed”. When it was suggested to him that he was responsible for what was in the shed he answered: “I’m not responsible for that shit that was in there. That’s not fuckin’ mine, mate. End of story”.

7. The accused said that he was not employed “at the moment”.

8. During the interview the accused says this:

   A… then Angel turns up and I said oh, well I couldn’t do anything with her. Fuck she, fuckin’ loads up with 3 or 4 fucking bags and, oh whatever. So I put ‘em out in the fucking shed and bang. And then Jenny wakes up and fuckin’ sees (inaudible). Fuck. I’m not takin’ this fuckin’ charge to take part in the control of substance and beat that in you’re arse ‘ey I’m tellin’ ya.

   QYeah.

   AThat’s not my fuckin’ charge. No fuckin’ way. (inaudible) I’m not a fuckin’ dog, but I’m not wearing that. No way, mate. No fucking way. No. Not this time around, at all. She’s a fuckin’.

9. The second interview with the accused commenced at 10.56 am on the same morning, Wednesday 17 February 2010. That interview is Exhibit P8. A transcript was tendered as an aide memoire as Exhibit P8A.

10. At the commencement of the interview the accused appears excited. He says: “I’m pissed off, mate. Of course, it’s gonna smell like fuckin chemicals in this house. There’s ethanol involved. I got model racing cars, I got a bike, mate. They all use it and it stinks like shit.” Later the accused says this: “… I argued with Jenny, when she fuckin locked me out the back, so I got it from the back tap, filled it up with cold water and soap.” He was there referring to a milky white substance which he said was water and soap in a bucket. Immediately prior to the accused saying that the police had referred to a search that had been made of the house and that in the rear shed there was “a strong smell of … chemicals in the air”.

11. Police then referred to coffee jars and the accused was asked what is in them. He answered: “There’s various coffee jars in the shed” and “There was not various coffee jars with substances in them. There may be one”. When asked what the substance was he replied: “Oh, fucked if I know”.

12. Later still the accused says:

    AA drug. Probably if there was a fucking lot of drugs found in a green bag, wasn’t it, codeine tablets. They weren’t mine. They were brought there by the sketchy bitch that was there.

    QAlright, (inaudible).

    AAnd they’re the fucking chemicals you will find in a little white box, I think they were. I don’t know what the fuck they were though, they were little bottles of chemicals. This, that, the other.

    QYep. The jars my partner’s referring to. Under, under the main cabinet at the end where you’ve got your TV screen with your cameras. Okay, then you got your tools, your drills and that.

    AYeah.

    QRight, there’s uh, a black leather bottle shaped bag with a zip. Inside that was one of (inaudible) …

    AI have no idea what’s in there.

    Q… container with brown substance.

    AThat’s been there for, that’s been there for forever and a day. I wouldn’t have a fucking clue. It may be (inaudible) for a drug. I don’t know.

    QOkay.

    AIt’s been there forever.

13. The accused then refers to the fact that “the whole shed has been made from a shed into a room”. He makes that comment when referring to there being “a whole heap of tools and shit under (a table on which there was a coffee jar with a substance in it)”. He said to police that he had taken all his tools and “shit like that and tidied them all up, that was located just in that shed”.

14. Police asked the accused when it was that he had been kicked out of the house. He replies:

    AI wasn’t kicked out. Me and Jenny had a barney, ‘cos she seen a text message on Monday night from my phone to some girls phone, just saying what are ya doin’ tomorrow, tomorrow night.

    QHmm.

    A‘Cos Jenny was going, excuse me. Um, somewhere and this girl isn’t allowed to contact me, ‘cos Jenny’s got a beef with her.

    QOkay.

    AI’ve never fucked her. I never will fuck her, but nevertheless. I don’t see her while Jenny’s around.

15. When police asked when Leanne (Debenham) had arrived at the premises the accused replies that it was at about 5.30 or 6 o’clock that morning. He then tells police this:

    AShe comes in with about 4 bags full of shit, and when you gotta understand me here, when she rocks up and being sketchy what do you with her mate. Call an ambulance. You don’t. I just, shit I come in here. She went to the shed and she sits down like a fuckin’ witch. And she’s telling me all (inaudible) bullshit around here, and you just let it be man. Look, you blokes had trouble dealing with her, you just let her be.

16. The accused told police that he had answered the side gate and had let Leanne in from the side gate and that was how she got into the shed. Jennifer (Hettich) did not know that Leanne was there because Jennifer was inside the house. The accused adds:

    AI mean, I was, Angel just turned up. I got a text message saying, yeah I’m at the gate, can you let me in. So I thought, fuck alright. And I did. And at that stage I didn’t know what she had in her fuckin’ bags. Five o’clock in the mornin’, I’m not gonna stand and argue the point, what’s in your bags. I had no fuckin’ idea. I just let her in. And you do, even me, I don’t not to do with her man. Fuck.

17. The accused said to police that Leanne wanted “to sell the whole fucking lot. Or she was gonna cook em up. Not there”.

18. When the accused was asked about the sulphuric acid and stuff like that he answers “There’s no sulphuric acid there”. He then volunteers that it was hydrochloric acid and says that it had been there forever. He says to police that he had got skip bins in to empty the house because it “was like fucking god dammed a jungle or maze of shit, mate”. He says that the place had been improved since he had been there.

19. When the accused was asked about three deal bags with substances in them he says they contained “meth” and says he would “put my hand up for them”. He says they were “on the eight ball table, weren’t they. Didn’t you say”.

20. When Constable Phillips was cross-examined Mr Stokes brought out that Ms Hettich was originally charged with offending involving what police found at Helen Terrace, but that charge did not proceed. He said that Ms Debenham was also charged with being involved.

21. Mr Stokes also elicited from Constable Phillips that Ms Debenham had a history of offending which included dishonesty offending and for taking part in or manufacturing a controlled drug for sale. There were a few other drug charges scattered through her antecedent history.

22. It was also brought out that Ms Hettich had an antecedent history which included drug related matters, one of which was manufacturing amphetamine, which was finalised in 2004. Later offending involved possessing or uttering forged prescriptions and some dishonesty offences.

23. That was the case for the prosecution.

    The defence case

24. The accused was arrested by police on 17 February 2010. He spoke to them on two occasions on that day and part of what he said to them is in evidence before me.

25. An accused person, on his trial, is legally entitled to give evidence in his defence or refrain from giving evidence. The choice is his. In this case the accused gave evidence on oath. He was not obliged to do so. He could have remained silent in answer to the charge, leaving it to the prosecution to satisfy me of all of the elements of it. However, he elected to give evidence on oath. The effect is that, in assessing him as a witness, his evidence, his credibility, and his reliability, I am to give such weight to it as I consider appropriate on the same footing as any other witness. It is for me to decide what weight I am prepared to attach to his evidence as I am required to do in relation to the evidence of the other witnesses in the case. Of course by going into the witness box the accused does not assume any burden of proof. The burden of proof still rests on the prosecution.

26. I have already referred to part of what the accused told police during his two interviews with them on 17 February 2010.

27. The accused told me that he is 46 years of age.

28. The accused told me that leading up to the time the police came to the house that he had been sharing with Ms Hettich he had had an earlier relationship with a girl known as Angel. That was Ms Debenham.

29. The accused told me that before police came to the house Ms Hettich had “sort of discovered that I had been screwing around”. He said that she had “discovered through phone messages that I had been unfaithful so we had a big barney”. When asked: “Was that barney on the night the police came to the house or the night before”, he answered: “No, the night before”. He said that as a result of the barney Ms Hettich locked him out of the house. When asked where he was proposing to spend the night he answered: “In the shed, if anywhere, I couldn’t leave because I was on home d”. When asked how it came to be that Ms Debenham turned up at the residence the accused answered:

    AWell, I was just out the back working out how to fix my Jennifer relationship and she just rang up out of the blue and asked what I was up to and she said ‘I was kicked out as well and can I come around’ and I said to her ‘Do it quietly, come inside the gate.’

    HIS HONOUR

    QCan you repeat that please

    AShe rang me out of the blue to see what I was up to. We kept in contact when we split.

    QWhen did she ring.

    ASometime during the night, I can’t give you an exact time.

    QGo on.

    AJust said what was happening and I told her about my and Jenny’s argument and I had been locked out the back and she said ‘It’s funny, I’m homeless myself and can I come around?’ And I said ‘Why not? Do it quietly and come through the side gate’.

30. When the accused was asked what his expectation was, if any, when Ms Debenham arrived, he answered: “Probably getting laid. We sort of had that relationship when we were together, it was pretty bizarre, but that’s what I was hoping – not hoping, I just figured it might happen”. He added that she had said to him on the phone that “she had some shit with her, not shit, as in gear, meth, or whatever and I said ‘come round’”. He told her to be quiet and come “via the side gate”.

31. The accused told me that when Ms Debenham arrived she had a backpack and “two or three plastic like striped black bags” with her. He thought that she had clothes and other things in them because she told him she was homeless. He said that when she arrived they “went into the shed, shared a shot and started to screw, and that didn’t work out. She started arcing out her head, tripping out and that’s when I went and got the bucket, the yellow bucket and got water and a cake of soap”. He said he tried to text message Ms Hettich and sort it out with her. He said that when he returned to the shed Ms Debenham “was sitting there like a witch, she had little bottles of shit everywhere and that’s when I freaked out. ‘What are you doing?’ ‘You’ve got to get rid of this stuff, have to pack it up’.” He said she was incapable of doing anything. He had seen her like that several times, especially after meth.

32. The accused told me that he then put $30 on the eight-ball table, phoned a taxi and said to Ms Debenham that she had to get out of there. He said “it seemed like only moments and the next thing the police were there”.

33. The accused told me that he had no intention or anticipation of manufacturing methylamphetamine or doing anything like that. He said he was on home-d and that’s why he freaked out. He said he was on home-d for having a dismantled handgun in the shed which the police had found on an earlier raid. He said his bail at that time required him to see a Community Corrections Officer and he said that “home detention coming out like on a regular basis, going through the place and what not, making sure I was abiding by the bail conditions”. He said he thought the police had raided or attended at those premises 21 times.

34. The accused told me that he had shared that house with Ms Hettich for maybe six months. He had a sexual relationship with Ms Hettich. She had been living at the house for ten years and he thought the police had raided 29 times in total in that time and that the raids had been more frequently in the previous four to five years. He said in the time that he was living there with Ms Hettich for the previous six months or so, several people visited the premises and most of them had access to the back shed. He said all of them were methylamphetamine users. He said Ms Hettich was an amphetamine user.

35. Mr Stokes asked the accused some questions about some of the items police found at the premises in the shed or outside it. He was asked to look at the book of photographs Exhibit P2 and when asked whether he was aware of the presence of any of those items in the shed or outside, he answered: “There was a lot of photos I’ve seen for the first time, I’ve seen for a long time, and I haven’t seen at all”.

36. When asked to look at the first page of Exhibit P2 (002-008) the accused said that the only two items he recognised on that page from before the time the police came were 006 and 007. He said that 006 had been in the shed for a long time. He had seen it there before he had started living at the house for about the six months prior to his arrest. He said he thought that 007 was in the shed before the police came.

37. When asked to consider the photos on the second page of Exhibit P2 (009‑017) and when asked whether he recognised any of those items before the police attended at the house the accused answered “the hydrochloric acid, the acetone, gas masks”. When his attention was directed to 011, being hydrochloric acid, he said that some people had done burnouts on a lot of cement out the back and the front and there was grease everywhere. He added “we scrubbed the cement for ages with this shit”. He denied using it to manufacture amphetamine. When his direction was directed to 012 (acetone) he said that was in the cupboard and that was all he knew. He said it was not his. When asked whether it was there before he arrived in that last six month period or whether it arrived after he arrived he answered: “There was more than one bottle of that shit. We cleaned up. There was bottles and tins everywhere. Whether it related to meth or not I don’t know”. When his attention was directed to 016 (the gas mask) the accused answered: “That was hanging in the shed. It’s been there forever”. He said that it had been there before he arrived in that last six month period he lived at the house.

38. When he was asked about the items on the third page of Exhibit P2 (018-024A) the accused said that he recognised the two items in 024 and 024A. When Mr Stokes then referred in his next question to 024, 024A and 021, the accused answered “Yes”. He said he remembered those items being in the shed after he went back in when Ms Debenham was there and when “she had shit everywhere”. He said neither of those bottles had been there before the police turned up, that he was aware of.

1. Mr Stokes then drew the accused’s attention to the next page of Exhibit P2. When he did that the accused volunteered that he recognised the caustic soda back on the previous page. He said there was a lot of caustic soda there before he got there and while he was there. He said that while he was there the hydrochloric acid was used a few times to clean the driveway. He said the caustic soda was item 021. He said it was drain cleaner.

2. When his attention was again directed to the next page of Exhibit P2 (025‑033) the accused said that apart from the hydrochloric acid in 028, he recognised 025 and 033 as having come out of Ms Debenham’s bag. He added that the “other shit and the metho that was in the cupboard and the 026 that came out of her bag, the rest of the shit I don’t recognise”.

3. When Mr Stokes directed the accused’s attention to the next page in Exhibit P2 (033A-038C) he said:

   A33A, 34, no not 34, 33 came out of her bag and these packets, there was shitloads of packets.

   QAside from 33A does the shitloads of packets refer to any other items in the photographs on that page.

   ANo.

   QCan you comment about what we see in photographs 38-38C.

   AYes, they were packets. There was shitloads of packets in there.

   QDoes the same apply to 38D and 38E over the page or not.

   AThat’s one and the same, isn’t it.

   QWere any of those there before Ms Debenham arrived that night.

   ANo.

4. Then Mr Stokes directed the accused’s attention to some specific photographs in Exhibit P2.

5. The first was 005, a round bottomed flask. The accused said that he had learnt that it was out in the back yard, but he did not know it was out the back.

6. When the accused’s attention was directed to 006 he was asked whether or not he came into contact with that item. He answered: “Yes, it was out in the back shed”. When asked whether he had anything to do with that item or whether he had used it for anything, the accused answered “No, no, I seen it out there, probably moved it while I cleaned up. I had to be very careful, it wasn’t my house. I’d gone to throw out a few things, general items, I got told not to do it because it wasn’t my house”.

7. When the accused’s attention was directed to 020, a blue bucket, he said he did not remember that bucket at all. He only remembered a yellow bucket which he said contained soap and water.

8. When his attention was directed to 024 and 024A (which is actually the same item) he was asked “Did you have anything to do with those jars”. He answered “No”. When asked “Do you know whether or not you handled them”, he answered: “Yeah, when I went back in the shed she had shit everywhere, I freaked out and said ‘You can’t have this shit’. I said ‘Pack it up, get the fuck out of here’. She was quite gone”.

9. When the accused’s attention was directed to 009 and was asked “Can you give us any help with that item” the accused answered: “No, not really”. When asked: “That’s an item where your fingerprint was identified. Could you explain that to the court”, the accused answered: “No, not off the top of my head”.

10. The accused told me that he had mentioned to police that he had got a couple of skip bins during the time he was there and “piled all the shit that was in the back shed out the back yard, done some pruning to the trees and whatnot”. They had filled up two skips and were going to get another one but did not get around to it.

11. The accused told me that the motor bike in the video in the shed was his. It had not been there long.

12. The accused told me that he had remote-controlled model cars that ran on ethanol. When asked whether there was ethanol in the shed he answered: “Yes, everywhere”.

13. The accused was cross-examined by Mr Morrison.

14. When it was put to him that he had a fair bit of his own property in the shed the accused answered: “Not really, just my model cars and the bike”. He agreed when it was put to him that there was some of his tools out there and his tool box. He said he did “not really” keep track of what was in the shed because there was “just shit everywhere”.

15. The accused was asked about 006, the pyrex oval dish with a sticky brown paste found in a cupboard in the laundry. When asked whether that was in the shed when the police arrived he answered “I guess so, yeah”. He agreed that he had touched that item. He denied that he had touched it during the process of manufacturing methylamphetamine.

16. The accused was asked about 016, the mask found in a cupboard in the laundry. He confirmed that he had seen that hanging in the shed. He said it was not his mask and there was no reason for him to take it into the house. He said that Mr Morrison could suggest that it was found in the house and not the shed (as he did) but the accused said “it was hanging in the shed outside the house”.

17. The accused agreed with Mr Morrison that Ms Debenham had not gone into the house until after the police arrived the next morning. He agreed that even he could not get into his own house so there was no way she could have got in there. He agreed that she would not have been able to put any items inside the house. He said that he let her in the side gate and she went to the shed. When this was put to him: “But she didn’t leave the shed before the police arrived”, he answered “No, she went outside, scratched around, have a piss or whatever”. He said he did not see her climbing up into the vines on the patio, nor digging holes in pot plants in the yard, or anything like that.

18. The accused said that the bags Ms Debenham brought with her were like shopping bags. He said she had a couple of other bags, a blue back pack and a handbag and a laptop. He again described that before police arrived they “had enough time to have a shot and try and screw and that sort of didn’t go anywhere and then I got the bucket and had a wash in it, that’s when I come back in and she was fucking packing – I left the shed, she came back in and she pulled the shit out, that’s when I said ‘You have to pack up the car and put the shit in it and get out’”. When asked whether she put the items on the pool table the accused answered “Yes, there was shit everywhere”. When asked about 024 (a glass jar with layers of liquid and solid found in a box under a table opposite the door of the shed) and where she put that he answered: “That was just shit on the floor”. He said “It was on the floor, I seen it on the floor”. When asked whether he touched it he answered: “Yes, I come in grabbed many items and picked them up and packed them up, said ‘Get the fuck out of here’”. When asked whether he put any of those items inside the house he answered: “Not that I’m aware of, no”. He said that he did not think he was carrying any items with him when the police arrived. He did not take any items that Ms Debenham had brought with her and put them inside the house. When asked whether he put them in the laundry he answered: “No, I don’t think so, no I didn’t, the police were there”.

19. When asked about 020, a blue bucket found on the back patio, he said that he could not remember seeing that bucket at all. He added: “I really can’t, my prints on it whatever, I don’t know, I can’t remember seeing it”. When it was put to him that it was found on the patio and that he would have noticed it he answered: “Yeah, I would have but I never seen it on the patio”.

20. The accused was cross-examined about his earlier evidence that some of the items in the shed had been left over from previous police raids. He said he had never thought they were of any significance because the police never took them in the first place. When asked what sort of stuff he was talking about he referred to hydrochloric acid, caustic soda, and “the gas mask was hanging there forever”. The accused referred to the dish (I infer that was 006) and asked “Why didn’t they take that back then when they raided”. He said that that had been in the shed for a long time as far as he could remember. He then referred to himself being there for four years, seven years ago. When Mr Morrison asked whether he would be wrong to suggest that it was found in the laundry the accused answered: “Possibly, I don’t think so, if it was in the laundry it was in the laundry. It was in the shed at some stage and I took it inside, it had more than cobwebs on it, so it never went inside until they opened the door”.

21. The accused was cross-examined about his evidence that he had participated in tidying up the house in general and removing lots of rubbish from in it. Mr Morrison asked the accused this: “What about 009. (This was a Nescafe glass jar containing a white crystallised powder found in a cupboard in the laundry.) Had that been there for a long time”. The accused answered: “No, it may have been, it may not have been, I don’t know where it was found”. When asked whether he was familiar with that item he answered: “No, not that I can say”. It was put to him that he had touched that item and he said “I may have”. When this was put to him: “That had hypophosphorous salt in it didn’t it”, the accused answered: “It’s got rags in there”. It was again suggested to him that it had hypophosphorous salt in it and that he knew about that. He answered: “I say you are barking up the wrong tree”. When it was suggested to him that he had that hypophosphorous salt for the purpose of manufacturing methylamphetamine, the accused answered: “No, I didn’t know what to do with that”. When it was put to him that he was storing that item in his laundry for that purpose he answered “It was in the laundry”. The accused agreed that if his fingerprint was on that then his fingerprint was on it. Mr Morrison asked: “I’m asking if you touched that item”. The accused answered: “Possibly, yes. There’s probably other items that I might have prints on there when I lived there”.

22. The accused was asked whether he was having a hard time financially at the time police came to the house in Helen Terrace. He replied: “Yes, I was on the home d”. He agreed that he was hard up for money but he said they had enough to survive. He agreed that he was selling things at Cash Converters to pay the bills. He agreed that he was in financial difficulty.

23. When the accused was asked whether Ms Debenham made any effort to hide any of the items that he said she had brought into the shed and then scattered around, the accused replied: “Yeah, when I seen the police up on the screen I said ‘Fuck we’re being raided’. That’s when I walked out of the shed, she was in there a few minutes after or whatever”. The accused said that there was CCTV linked to the shed. He said he had “hooked it up” himself.

24. The accused said that he was not aware that Ms Debenham came in with a full garbage bag. He did not see that.

25. The accused said that he knew that there were some coffee grinders in the house.

26. The accused said that he now realised that the items that police found were capable of manufacturing methylamphetamine but that he did not realise “the significance of all of them put together” at the time. He denied he was manufacturing anything and he denied he was going to sell any methylamphetamine. He said the scales at the house were used to weigh methylamphetamine “for a shot”. He said the deal bags in the shed were for “making a shot”.

27. When I asked the accused some questions at the end of his evidence he said that Ms Debenham had asked him whether he knew anybody that would buy what she had brought in and if he could get rid of them. When I asked whether he had told me that when Mr Stokes was asking him some questions the accused replied “I don’t know if he asked me that question or anything about that”. The accused went on to tell me that Ms Debenham “was going to try and sell the tablets or go and try and cook them up”. When I asked him what tablets he replied the tablets that were in her bag. He said “there were the boxes and boxes of them”. He said they were not the ones in the photos, they were boxes of tablets that the police did not take. He said they left them in Ms Debenham’s bag. He said that they were not just in her handbag, they were in a bigger bag. He said police found foil strips with tablets in them. He said they found “boxes and boxes of them”.

28. At the conclusion of the accused’s evidence Mr Stokes told me that Ms Hettich would give evidence before me the next morning.

29. The next morning Mr Stokes said this: “One preliminary matter. By agreement I am permitted to tell your Honour that the prosecution witness, Ms Hettich, has declined to co-operate with us. I now close the accused’s case.” After some discussion about that statement Mr Stokes said this: “The witness Hettich, whom I foreshadowed as a potential witness to be called this morning, has declined to assist the defence on the advice of her solicitor. I therefore close the defence case.”

30. I was told that that statement was made without any input by Mr Morrison.

    Findings and conclusions

31. I have set out in some detail the evidence as to where police found certain items in the shed, in the house, and elsewhere. I consider that where the various items referred to were found is important. I am satisfied and find that the various items were found where I was told that they were found.

32. I find that the shed at the house at Helen Terrace to which Dr Ward went on 17 February 2010 was a “hot site” as described by her. I find that there was a mild chemical odour within the shed when she went there that day.

33. I find that the various items Dr Ward described as being consistent with the extraction phase, the manufacturing phase, and the purification (distillation) phase of producing methylamphetamine were as described by her. I find, based on Dr Ward’s evidence, that the items, equipment, and chemicals she referred to as having been found at the premises, could, subject to one qualification produce methylamphetamine. That qualification is iodine. Dr Ward said iodine can be purchased. One of the other agents which was required to produce methylamphetamine was hypophosphorous acid. That was not at the premises but I am satisfied and find that it could have been produced from chemicals that were there.

34. I find, based on Dr Ward’s evidence and her opinions, that methylamphetamine had been manufactured at the premises at Helen Terrace and that the process used was most likely the process that Dr Ward told me about. She could not say when that had occurred, and whether the items she had referred to had been used in that way at Helen Terrace or somewhere else.

35. I am satisfied and find beyond reasonable doubt that methylamphetamine had been manufactured at the premises at Helen Terrace. I so find on the basis that the items referred to by Dr Ward were found by police in three separate parts of the house and property at Helen Terrace. Items of particular significance were found in the laundry of the house, in the shed, and in the area between the house and the shed in what has been referred to as the patio area. Some containers in the bedroom of the house were found to have traces of methylamphetamine and two resealable bags were also found there that contained methylamphetamine. The fact that various items were found in various places in the shed, in the house, and in the patio area is inconsistent with the evidence of the accused that Ms Debenham brought all these items to the premises in bags when he let her in the side gate and into the shed just hours before police arrived there.

36. 006 is a glass pyrex oval dish containing a white spatula and sticky brown paste. I find that that was located in a cupboard under the laundry sink in the laundry in the house. I find that the brown paste contained methylamphetamine and codeine. The accused’s evidence was that that item was in the back shed. He first said that he had seen it in the shed and that he probably moved it while he cleaned up. When he was later asked whether it was in the shed when police arrived he answered, “I guess so, yeah”. He then agreed that he had touched that item. He also agreed that Ms Debenham did not go into the house after she arrived that morning until after the police had arrived. This was an item which Ms Dillon said contained a fingerprint which had insufficient detail for a positive identification but that it could not be excluded that this fingerprint came from the accused’s left ring finger. I am satisfied and find that it did.

37. 009 is a glass jar labelled Nescafe Gold containing some white crystalline powder. I find that it was located on the top shelf of a cupboard opposite the washing machine in the laundry in the house. I find that the powder was a hypophosphite salt. I find that a fingerprint was found on this item and that that fingerprint was identical to the accused’s right thumb. I find that it was the accused’s right thumbprint. The accused was asked about this item. When he was asked if he could give us any help with that item, he answered: “No, not really”. When he was asked whether he could explain that that was an item with his fingerprint on it, he answered: “No, not off the top of my head”.

38. 024 is a glass jar containing four layers of liquid and solid. I find that it was found in a box under the table along the western wall of the shed opposite the door. The accused was asked about this item. He denied having anything to do with this item but when he was asked: “Do you know whether or not you handled” this item, he answered: “Yeah, when I went back in the shed she had shit everywhere”. He said that he then freaked out and told Ms Debenham to pack the shit up and “get the fuck out of here”. He was later asked where Ms Debenham had put that jar. He answered: “That was just shit on the floor”. He said: “It was on the floor, I seen it on the floor”. When asked whether he touched it he answered: “Yes, I come in grabbed many items and picked them up and packed them up, and said ‘get the fuck out of here’”. He said he was not “aware of” putting any items inside the house. He said that he did not take any items that Ms Debenham had bought with her and put them inside the house. He said he did not put any in the laundry as “the police were there”. Two fingerprints on this item contained insufficient detail to make a positive identification, but Ms Dillon said that the detail that was there was consistent with the accused’s left ring finger, in one case, and with the accused’s left little finger, in the other. I find that they were the accused’s fingerprints and that he had handled this item.

39. I do not believe the accused evidence when he told me that Ms Debenham brought a significant number of items that the police found and seized in the shed with her in striped black bags when he let her in the side gate early in the morning of 17 February 2010. I am satisfied that Ms Debenham probably bought some things with her, but I am satisfied and find that all of the items seized by police were already in the shed, the house or elsewhere before Ms Debenham came to the property.

40. I consider that as the accused gave evidence he could not remember where the various items about which he was being asked were found by police. I am satisfied that he made up some of the evidence that he gave or, alternatively, he dissembled to try and avoid answering some questions with specific and clear answers.

41. I am satisfied and find that the accused lied in his evidence as to items 006, 009, 016 and 024.

42. I have no confidence at all in relying on the accused’s evidence as to where items were, and I disbelieve his evidence that Ms Debenham brought many of the items that police seized when he let her in to the shed that morning. A number of the items which he said were in the shed were actually inside the house, in the laundry adjacent to the back door of the house which door was locked at the time police arrived. I find that it was locked after Ms Hettich “kicked” the accused out of the house. Other items were found in the back porch area and some appeared hidden in various parts of that area.

43. I find that the safety mask with filters (016) was stored in a shelf of the cupboard adjacent to the washing machine in the laundry of the house. I am satisfied that when the accused said that the mask was hanging in the shed and that it had been hanging in there forever, he knew that that was false.

1. I earlier referred to the fact that Ms Hettich had that morning said to a police officer in the house that she had kicked the accused out of the house, that she knew he was in the shed but that she did not know Ms Debenham was there also. I referred to the fact that that evidence was hearsay but that some of it was consistent with what the accused said in his evidence at the trial. I indicated that there was one aspect of that evidence that may be important. That aspect is as to when it was that Ms Hettich kicked the accused out of the house and locked the back door.

2. The evidence to this topic is not clear. It does not appear that Ms Hettich told police when it was that she kicked the accused out. The accused told police that Ms Hettich had seen a text message on the Monday night from his phone to some girl’s phone asking what she was doing “tomorrow night”. He said that that was when he had left the house. When Mr Stokes asked the accused: “Was that barney on the night the police came to the house or the night before”, the accused answered: “No, the night before”. The police came to the house at about 7:30 or 8:00 in the morning of Wednesday 17 February 2010. What the accused understood Mr Stokes’ question to mean is not clear. What does appear clear is that Ms Hettich had a “barney” with the accused because she saw a text message from his phone to some girl’s phone on the Monday night. I accept that it is conceivable that Ms Hettich saw a text message that was sent on Monday night from the accused’s phone but that she did not see the text message until the Tuesday night and she kicked him out when she saw it that night. I am satisfied and find, however, that she saw the text message on the Monday night and kicked him out that same night.

3. As indicated earlier I did not hear from Ms Hettich as she did not give evidence at the trial.

4. I find that Ms Debenham was let in to the shed by the accused at some time between when he was kicked out of the house on the Monday night and when the police arrived on the Wednesday morning. It could have been at any time during that period, during the whole of which I find that the accused was in the shed. I find that Ms Debenham was let in to the shed by the accused unbeknown to Ms Hettich. As indicated earlier I find that Ms Debenham did not bring with her all of the items the accused said she did. I find that all those items were where police found them for the whole of the time the accused was in the shed from the Monday evening to the Wednesday morning.

5. The accused told police that he was “always in and out of that shed”, being the shed searched by police on 17 February 2010. He also referred, in his second interview with police, that “the whole shed has been made from a shed into a room”. There appears to be a mattress or some bedding in the shed. There is also a T.V. screen which the accused told me was linked to a CCTV camera at the front door of the house. He told me that he had “hooked it up” himself.

6. I find that the accused was often in and out of the shed at the rear of the house over the period of time that he resided at the property with Ms Hettich. I find that the shed had been made into a room and that the accused would use it as a room including as a place for him to sleep if he was not sleeping inside the house. I find that there were some of the accused’s belongings in the shed, including tools and equipment. I find that his bike was also stored in the shed.

7. I find that that the accused had been “kicked out” of the house on the Monday evening before police came and that he spent that night and the following night in the shed. I find that he also spent the day of Tuesday 16 February 2010 in the shed.

8. I find that the accused lived at the property at Helen Terrace for at least six months prior to the police coming on 17 February 2010. I am satisfied that he had also lived there with Ms Hettich for extended periods of time before that six month period.

9. I find that the chemical smell in the shed had been present there for some time and that the accused knew what caused it and he knew that the cause was not explicable by ethanol or anything else he may have used for model racing cars or his bike.

10. I find that methylamphetamine was detected on the hand swabs taken of the accused on 17 February 2010. I find that no methylamphetamine was detected on the 4 swabs taken from each of Ms Debenham and Ms Hettich.

11. I am satisfied and find that the accused stored all the equipment, substances, and materials police found in various places of the property at Helen Terrace which he knew had been, or were to be, used for the purpose of manufacturing methylamphetamine. I am satisfied that the accused knew that all of the equipment, substances and materials were at the property for some time before the police arrived, some belonged to him and the remainder was in, at least, his joint possession and in his control for some period of time before the police came. I reject the accused evidence that he did not realise “the significance of all of (the items) put together” at the time. I find that he well knew they were capable of and were used to manufacture methylamphetamine.

12. I am satisfied and find that the accused provided and allowed the use of the shed at the premises at Helen Terrace which he jointly occupied with Ms Hettich for the purpose either of having produced or to produce methylamphetamine.

13. I consider that all these findings are not only rational inferences from all the circumstances I find proved, but that they are the only rational inferences from the circumstances I find proved.

14. I am satisfied and find that methylamphetamine was a controlled drug as at January and February 2010 and that the accused knew at that time that methylamphetamine was a controlled drug.

15. As to the fourth and final element of the offence charged against the accused, being the intention he had in storing the equipment, substances and materials and the intention he had in providing and allowing the use of his jointly occupied premises for the manufacture of methylamphetamine, I note that there are a number of scales found by police when they searched the premises. There were cutting agents there, and there were deal bags found, including ones containing methylamphetamines.

16. I find that the accused was at this time in financial difficulty. He was “hard up for money” and was struggling to pay the bills. To assemble all the items and equipment police found, to purchase the chemicals there and to purchase the additional chemical of iodine in order to produce methylamphetamine, required a not insignificant outlay of cash.

17. Whilst it appears that the accused was a user of methylamphetamine and that the amount of pseudoephedrine found at the premises was not a significant amount, the only rational inference I can draw from all the circumstances is that the accused intended to sell some of the methylamphetamine produced or that he at least believed that other persons intended to sell some of it. In either case I find that the accused believed that that would be for his benefit.

18. I am satisfied beyond reasonable doubt that each element of the offence charged against the accused is proved.

    Verdict

19. I shall find the accused guilty as charged.