R v Cosford and McDonnell-Smith - [2007] SASC 147

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COSFORD & MCDONNELL-SMITH
[2007] SASC 147
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)
4 May 2007
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - PROOF AND EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeals and applications for leave to appeal against conviction – appellants convicted after a trial by Judge alone of the offence of taking part in the manufacture of methylamphetamine contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA) – whether certain facts were “indispensable intermediate facts” which the trial judge had to find proven beyond reasonable doubt in order to find the accused guilty of the offences charged – whether sufficient evidence upon which trial judge could find certain facts proved – whether trial judge misdirected himself as to the knowledge which each accused must have had in order to be convicted of the offences charged.
Held: sufficient evidence for findings of fact made by trial judge – no misdirection as to the requisite knowledge for the offences charged – appeals refused – applications for leave to appeal refused.
Controlled Substances Act 1984 (SA), s 32; Criminal Law Consolidation Act 1935 (SA), s 353; Drug Misuse and Trafficking Act 1985 (NSW), referred to.
R v Randylle (2006) 95 SASR 574; Shepherd v The Queen (1990) 170 CLR 573; R v Koeleman (2000) 2 VR 20, applied.
R v McDonnell-Smith & Ors [2006] SADC 79, discussed.
R v Keyte (2000) 78 SASR 68; R v ADW (2002) 84 SASR 178; R v Spicer (2003) 139 A Crim R 206; R v Norton-St Clair and Riddle (2005) 93 SASR 48, considered.

R v COSFORD & MCDONNELL-SMITH
[2007] SASC 147
Court of Criminal Appeal: Duggan, Gray and White JJ

DUGGAN J. I agree that the appeals should be dismissed and the applications for leave to appeal should be refused.
I agree with the reasons of White J.
GRAY J. I would dismiss the appeals. I would refuse the applications for leave to appeal. I do not wish to add to the reasons of White J.
WHITE J. Each of the two appellants was found guilty by a District Court judge sitting without a jury of the offence of taking part in the manufacture of a drug of dependence (methylamphetamine), contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA) (“CSA”).
Permission to appeal on one ground was granted by a single judge. The appellants’ applications for permission to appeal on further grounds were referred to this Court.
The appellants were tried with a third person, Randylle, who was also convicted. An appeal by Randylle against his conviction was dismissed.[1] The Court of Criminal Appeal was satisfied that Randylle had been properly found to…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2007] SASC 147
Decision Date: 4 May 2007

CaseChat Overview and Summary

The case of R v Cosford and McDonnell-Smith involved the appellants, Cosford and McDonnell-Smith, who were tried and convicted alongside a third individual, Randylle, for their participation in the manufacture of methylamphetamine. Randylle's appeal against his conviction was dismissed, but the current appeals raise questions about the sufficiency of evidence against the appellants and certain findings of fact by the trial judge. The primary issue before the court was whether the evidence was sufficient to establish the appellants' involvement in the manufacture of methylamphetamine beyond reasonable doubt.

The court had to determine if the depositions of witnesses and the circumstantial evidence presented were adequate to support the convictions of Cosford and McDonnell-Smith. This included examining the items found at the scene, such as the equipment and chemicals associated with the production of methylamphetamine, and considering the inferences that could be drawn from these facts. Additionally, the court addressed whether the trial judge erred in his findings of fact, particularly those not covered in the earlier appeal involving Randylle.

The Court of Criminal Appeal concluded that the evidence, including the circumstantial evidence and the inferences drawn from it, was sufficient to establish the appellants' participation in the manufacture of methylamphetamine. The court found that the trial judge's findings of fact were supported by the evidence and that there were no errors that would warrant overturning the convictions. Consequently, the appeals were dismissed, and the applications for permission to appeal were denied.

Orders

Orders of the court

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Background

Background to the litigation

The appellants were tried with a third person, Randylle, who was also convicted. An appeal by Randylle against his conviction was dismissed.[1] The Court of Criminal Appeal was satisfied that Randylle had been properly found to have participated with the present appellants in the manufacture of methylamphetamine. That decision, although very relevant, is not conclusive of the present appeals. One of the questions raised on these appeals is whether the evidence which was admissible against each of the present appellants was sufficient to establish their participation in the manufacture of methylamphetamine. Other complaints concern findings of fact by the trial judge in reaching his verdicts which were not considered in R v Randylle.[2][1] R v Randylle [2006] SASC 318; (2006) 95 SASR 574.[2] Ibid.Background Circumstances At the trial, apart from some challenges to relatively small amounts of evidence, each of the accused consented to the prosecution tendering the written depositions of the witnesses. The primary submission of the accused at trial was that the facts disclosed in those depositions were not capable of establishing, beyond reasonable doubt, that any one of them had taken part in the manufacture of methylamphetamine. In effect, the challenge was not to the primary evidence but as to the inferences which could be drawn from that evidence. The summary of the circumstances of the offending which is set out below borrows very much from the summary contained in the judgment of the Chief Justice in R v Randylle.[3] The summary includes some additional facts relevant to the matters in issue on this appeal.[3] Ibid at [7]-[17]; 576-7. At about 2.00 pm on Friday 7 January 2005, police went to a house at Windsor Gardens. The appellant Cosford lived there. He was not present at the time. The police searched his room, the door to which was padlocked. They found a jar containing iodine (which can be used in the production in methylamphetamine), some equipment which could be used to produce methylamphetamine, electronic scales containing traces of methylamphetamine, a packet of glucose powder, a number of pH test strips, some glass laboratory stoppers, and 154 plastic snap-seal bags, items often associated with the sale of methylamphetamine. At least 23 of the snap-seal bags contained residues of methylamphetamine. Not long after, Mr Randylle arrived, driving a sedan, with the appellant Ms McDonnell-Smith, who was driving a utility. With the assistance of Mr Randylle, Ms McDonnell-Smith reversed the utility into the driveway of the house. The police searched the sedan and found glassware of a kind which could be used to produce methylamphetamine, as well as a gas burner. Two bags in the boot contained numerous pieces of laboratory materials and glassware, electronic scales and containers of chemicals which could be used to produce methylamphetamine. In the utility, the police found a large wooden box, a gas cylinder and retort stands. The box contained laboratory glassware as well as other items which could be used for the production of methylamphetamine, including hypophosphorous acid, iodine, and ethanol (or residues of ethanol).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DUGGAN J (dissent) GRAY J (dissent) WHITE J (dissent)

Each of the appellants also submitted that the judge had erred in failing to uphold a submission of no case to answer (Cosford Proposed Ground 1; McDonnell-Smith proposed Grounds 1 and 2). However, each acknowledged that this proposed ground had been subsumed by the ground just considered. It is therefore not necessary to address it separately.Conclusion For the reasons given above, I would dismiss each of the appeals and each of the applications for permission to appeal.

Ratio Decidendi

Legal Principle Established

Established by:

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