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 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).
Ms McDonnell-Smith was arrested. She gave an address in Lawrence Street, Eudunda but otherwise exercised her right to silence.
Mr Randylle was not arrested at the house but agreed to accompany the police to a police station and to provide a witness statement. In the course of taking that statement, the police formed the view that he was a suspect. They then cautioned Mr Randylle and commenced a video recorded interview. During the course of this interview Mr Randylle confirmed the earlier statement made by him but then exercised his right to silence.
Swabs were taken from the hands of each of Mr Randylle and Ms McDonnell-Smith. Traces of amphetamine, methylamphetamine and pseudoephedrine were found in the hand swabs.
After the arrest of Ms McDonnell-Smith, the police carried out a more thorough search of the house at Windsor Gardens. They found a large quantity of iodine in a spare room. They found a gas bottle, plastic piping, chemicals, containers and gloves. They found printed material dealing with the manufacture of methylamphetamine, although not by the method which the prosecution case suggested was to be used in this case.
The judge found that on the previous day, 6 January 2005, Mr Cosford had purchased 5 kgs of iodine for $968.
Mr Randylle told the police that on 7 January he had been doing Ms McDonnell-Smith a favour. He said that she had rung him on the previous day and asked him to help her transport “gear” from Eudunda to Adelaide. He said that when he loaded his car on the morning of 7 January and saw what he was carrying, he “suspected that the gear had something to do with the cooking of amphetamine”, and suspected that Mr Cosford might have produced amphetamine before. He said that he had an idea that what he was doing was illegal but preferred not to ask any questions. That evidence was of course not admissible against either Mr Cosford or Ms McDonnell-Smith.
Mr Cosford was arrested at Morphett Vale on Sunday 9 January 2005. He exercised his right to silence.
Mobile telephone records showed that there were 10 telephone calls between Ms McDonnell-Smith and Mr Randylle on 6 January, and on 7 January, 16 telephone calls up to and including 2.03 pm. There were several telephone conversations between Ms McDonnell-Smith and Mr Cosford over that same period. In addition, the evidence indicated that there were two telephone calls between Mr Randylle and Mr Cosford on Saturday 8 January 2005 (ie, before the arrest of Mr Cosford), one call from Mr Cosford to Ms McDonnell Smith on 10 January 2005 (after his arrest) and two calls from Mr Cosford to Mr Randylle on Monday 10 January 2005. There was no evidence of telephone calls between Mr Randylle and Mr Cosford before 8 January 2005.
The trial judge admitted evidence that Mr Cosford had been seen on another occasion producing methylamphetamine, with other evidence indicating that he knew how to make methylamphetamine. The judge admitted this evidence as circumstantial evidence which was capable of rebutting a claim of innocent association between the three accused.
The judge relied on the traces of methylamphetamine found on Mr Randylle’s hands and those of Ms McDonnell-Smith as evidence that they had an interest in methylamphetamine. He made a similar finding in relation to Mr Cosford.
The judge was satisfied beyond reasonable doubt that the prosecution had proved a joint enterprise, involving all three accused, to take part knowingly in the manufacture of methylamphetamine. The judge attached particular significance to the following matters:
(a)[T]he fact that, absent pseudoephedrine, on 7 January there were assembled at the premises at 21 Paula Avenue, all the materials and equipment required to manufacture methylamphetamine, at the residence of a person who knew how to do it and had previously used the premises to do it;
(b)[T]here is then a chronological convergence: on 6 January Cosford had purchased five kilograms of iodine and the following day, and pursuant to an arrangement between them, McDonnell-Smith and Randylle had arrived at his premises with all the remaining materials and equipment required to produce methylamphetamine, save for pseudoephedrine;
(c)[T]here is then the fact that the accused knew each other and each had an interest in methylamphetamine.[4]
The judge then drew the following conclusions:
The evidence does not prove there was an existing laboratory at the Paula Avenue premises established for the purpose of manufacturing methylamphetamine, but I am satisfied that it shows there was a plan to set up that laboratory and to take steps in the process of manufacturing methylamphetamine within a very short time of 2 p.m. on 7 January. It was not a case, as I find it, of there being mere preparatory steps towards that goal with no knowledge of or specific intention to then manufacture or with a vague intention to manufacture at an indefinite time in the future.
Having regard to my above conclusions and excluding those items of circumstantial evidence inadmissible against particular accused, I am nonetheless satisfied beyond reasonable doubt that between 1 and 8 January 2005 at Windsor Gardens, each of the accused was part of a joint enterprise, whether or not each knew of the entire role to be carried out by the others, to knowingly take a step in the process of manufacturing methylamphetamine, a process that was then planned and imminent. I am not persuaded that in respect of any one of the accused, there is any reasonable hypothesis consistent with his or her innocence.[5]
[4] R v McDonnell-Smith & Others [2006] SADC 79 at [134(11)].
[5] Ibid at [135-6].
In R v Randylle the Chief Justice said that he regarded some of the circumstances as being particularly significant.[6] These were that the amount of laboratory equipment was substantial; the purchase of 5 kgs of iodine by Mr Cosford on the preceding day; that all the chemicals needed to manufacture methylamphetamine apart from pseudoephedrine (or a source of it) were present in either the house or one of the cars without there being any innocent explanation for that; the interest of each of the participants in methylamphetamine; the circumstances in which Mr Randylle and Ms McDonnell-Smith arrived at the house with equipment and chemicals; the fact that they arrived at a house containing further equipment and chemicals; and the numerous telephone calls between Mr Randylle and Ms McDonnell-Smith prior to 2.03 pm on 7 January 2005. These factors all suggested that the actions of the accused were part of a plan, and not a coincidence, and further, that the production of methylamphetamine was intended and was imminent.
[6] [2006] SASC 318 at [19]; (2006) 95 SASR 574 at 578.
Nature of the Appeal
The appellants accepted that while the judge had given written reasons, the appeal was against the verdict, and that in order to succeed they had to come within one or other of the grounds of intervention contained within s 353(1) of the Criminal Law Consolidation Act 1935 (SA). That is, that the verdicts were unreasonable or could not be supported having regard to the evidence; or that there had been a wrong decision on a question of law; or because on any ground that there had been a miscarriage of justice. Reference was made to R v Keyte[7] and to R v ADW.[8]
[7] [2000] SASC 382 at [51]; (2000) 78 SASR 68 at 79.
[8] [2002] SASC 331 at [16]-[43], [61]-[66]; (2002) 84 SASR 178 at 181-4, 188-9.
Indispensable Facts
A submission which was common to a number of grounds was that the judge could not, on the evidence, have been satisfied beyond reasonable doubt of a number of findings which he made during the course of his reasons. It was contended that satisfaction to that extent was required because those factual findings constituted indispensable links in the chain of proof. Reference was made to Shepherd v The Queen.[9]
[9] (1990) 170 CLR 573.
While each element of an offence must be proved beyond reasonable doubt, it is clear enough that in a circumstantial case it is not every fact relied upon to prove each element which must itself also be proved beyond reasonable doubt. It is only those facts which constitute indispensable intermediate steps in the reasoning towards an inference of guilt which must be so proved. In Shepherd, Dawson J (with whom Toohey and Gaudron JJ agreed, and with whose reasons Mason CJ expressed general agreement) said:
… the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt. … But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.[10]
[10] Ibid at 579-80.
Later, Dawson J said:
The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts – individual items of evidence – proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognised in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.[11]
[11] Ibid at 585.
Shepherd established that in a circumstantial case a fact, not being an element of the offence charged or of a defence to be negated, need not be established beyond reasonable doubt unless it is, in a strictly logical sense, an indispensable link in the chain of sequential reasoning leading to a finding of guilt.[12]
[12] R v Koeleman [2000] VSCA 141 at [27]; (2000) 2 VR 20 at 29 per Tadgell JA.
I approach the consideration of the appellants’ submissions with these principles in mind.
Knowingly Take Part
It is convenient to consider first the submission that the judge misdirected himself as to the law. (Cosford Ground 2, McDonnell-Smith Ground 3). It was on this ground that the appellants had, to the extent necessary, been granted permission to appeal.
The appellants submitted that the judge had erred in law in the direction he gave himself about the element of knowledge to be proved by the prosecution.
Section 32(1) of the CSA provides:
(1) A person must not knowingly—
(a)manufacture or produce a drug of dependence or a prohibited substance; or
(b)take part in the manufacture or production of such a drug or substance; or
(c)sell, supply or administer such a drug or substance to another person; or
(d)take part in the sale, supply or administration of such a drug or substance to another person; or
(e)have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.
The meaning of s 32(1) is elaborated in s32(4) which provides:
(4) Without limiting the generality of this section, a person takes part in the manufacture, production, sale, supply or administration of a drug of dependence or prohibited substance if the person—
(a)takes, or participates in, any step, or causes any step to be taken, in the process of that manufacture, production, sale, supply or administration; or
(b) provides or arranges finance for any such step in that process; or
(c)provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which he or she is the owner, or in the management of which he or she participates.
The judge noted that the prosecution had to prove beyond reasonable doubt that each accused knowingly took part in the manufacture of methylamphetamine in one or other of the ways contemplated by s 32(4). In relation to the element of knowledge, the judge said:
The next element which must be proved by the prosecution beyond reasonable doubt, assuming the first element is proved, is that it must be shown that the accused took part in the manufacture “knowingly”, that is, that he knew at the time that the substance to be manufactured was methylamphetamine or, at the least, that it was to be an illegal substance under the drug laws.[13] [Emphasis in original.]
[13] R v McDonnell-Smith & Ors [2006] SADC 79 at [10(7)].
It was submitted that this was a misdirection which pervaded the judge’s reasons. It was said that the judge should have found that the prosecution was required to prove that each accused knew that he or she was taking part in the manufacture of something, and further, that each knew that that “something” was methylamphetamine.
I agree that it was necessary for the prosecution to establish not only the steps being taken by each of the appellants (and that those were steps in the process of manufacture of methylamphetamine) but also that each knew that what he/she was doing was a step in the process of manufacture. So much is implicit in s 32(1) and s 32(4). It is also confirmed by authority. In R v Spicer,[14] Smart AJ, with whom Santow JA and Simpson J agreed, said, in relation to the comparable provision in the Drug Misuse and Trafficking Act 1985 (NSW):
The Crown had to establish that the appellant was aware that he was taking part in the process of manufacture. That is not established by proving that the appellant knew that a prohibited drug was being transported. It is one matter to know that a prohibited drug is being transported and quite another to knowingly take part in the process of manufacture.[15]
[14] [2003] NSWCCA 108; (2003) 139 A Crim R 206.
[15] Ibid at [43]; 213.

However, I do not agree that the trial judge did misdirect himself. The direction of the judge has to be understood in the context in which it was given. That context makes it plain that the judge properly directed himself as to the requisite state of knowledge. The judge had earlier noted that the prosecution case was that the appellants had by way of a joint criminal enterprise engaged upon a “deliberate” course of criminal conduct.[16] The judge then said:
… To prove such an enterprise, it must be shown that the role the particular accused played in the offence was undertaken pursuant to an agreement with the other or others and for the purposes of advancing the commission of the crime.[17] [Emphasis added.]
[16] R v McDonnell-Smith & Others [2006] SADC 79 at [10](4).
[17] Ibid.
This passage indicates that the judge was aware of the need for the appellants’ knowledge of the nature and purpose of their actions in relation to manufacture to be proved.
It is also evident that the judge did, in any event, consider whether the evidence established beyond reasonable doubt that each participant was knowingly taking part in the manufacture of methylamphetamine. In his summary of the prosecution case, the judge noted again that it was the prosecution case that the accused “were involved in a joint enterprise to commit the offence charged – that is to say, to knowingly take part in the manufacture of methylamphetamine”.[18] The judge completed that summary by noting the prosecution’s submission that “the house at 21 Paula Avenue was to be the centre of production and that steps in the process of manufacturing methylamphetamine were planned to take place then or shortly after”.[19]
[18] Ibid at [74].
[19] Ibid at [82].
On the defence cases, although the principal submission was that a process of manufacture had not been commenced, each made submissions as to the extent of knowledge of the respective accused about what was happening. The judge noted the submissions specifically. Although admittedly for a different purpose, the judge also quoted the passage from R v Spicer which I have set out above. This included specifically the requirement that the prosecution prove that the accused was aware that he was taking part in the process of manufacture. All these matters indicate that the judge was properly directing himself as to the elements which the prosecution had to establish.
Finally, the judge expressed his conclusion in terms indicating his acceptance that knowing participation had been proved. The full passage ([136]) has been earlier quoted. Mr Henchliffe (who appeared for Mr Cosford) accepted that [136] could be understood as indicating that the judge had found that the appellants had knowledge both of the steps being taken, and that the steps were directed to the manufacture of methylamphetamine.
I also reject the further submission of Mr Henchliffe that the prosecution had to prove beyond reasonable doubt that Mr Cosford knew the time when the process of manufacture of methylamphetamine had begun. That was not an indispensable link in the chain of proof of the offence.[20]
[20] Cf Shepherd v The Queen (1990) 170 CLR 573.
Acquaintanceship of Cosford and Randylle
The appellant Mr Cosford complained of certain findings of fact made by the judge.
First, it was submitted that the judge had erred in finding that the accused knew each other (Cosford Proposed Ground 4.1). It was submitted that there was no direct evidence to support a finding that Mr Cosford knew Mr Randylle, and that the circumstantial evidence was insufficient for that conclusion to be drawn.
In his statement to the police, Mr Randylle had indicated that he knew Mr Cosford, but that evidence was not admissible against Mr Cosford. It is true that there was little direct evidence that the two men were acquainted before 7 January. But there was the evidence of telephone calls from Mr Randylle’s mobile telephone to Mr Cosford’s mobile telephone and from Mr Cosford’s mobile telephone to Mr Randylle’s mobile telephone, both before and after Mr Cosford’s arrest. In addition, there was Mr Randylle’s description of “Paul” who lived at 21 Paula Avenue, Windsor Gardens, which description fitted Mr Cosford. The question of whether this was admissible to prove the extent of Mr Randylle’s knowledge of Mr Cosford, as indicating esoteric knowledge, was not fully debated in the submissions on the appeal.
In my opinion, the finding of the judge that Mr Cosford was known to Mr Randylle was open to him having regard to the matters which he identified. These included: the timing and circumstances of the arrival at the premises of Mr Cosford, Ms McDonnell-Smith and Mr Randylle; their telephone contacts; the complementary nature of their loads; the evidence indicating that Mr Cosford was well acquainted with Ms McDonnell-Smith; and the other evidence indicating the existence of a pre-arranged plan.
It was not necessary for this finding to be made beyond reasonable doubt. Proof that Mr Cosford knew Mr Randylle was not, in a strictly logical sense, an indispensable link in the chain of evidence. Speaking generally, there is no reason in principle why an accused may not be a participant in a joint enterprise with a person he or she has not previously met. In the particular circumstances of this case, the participation of each in the joint enterprise could have been arranged through an intermediary, ie, Ms McDonnell-Smith. In my opinion, the matters mentioned by the judge were capable of supporting a finding that Mr Randylle and Mr Cosford knew each other without that finding having to be reached beyond reasonable doubt.
I would refuse permission to appeal on this ground.
Unloading the Vehicle
The judge said:
I am satisfied, on the evidence, that the circumstances of the arrival of both vehicles at 21 Paula Avenue, the telephone contacts which preceded it and the participation of both drivers in seeing the utility reversed into the driveway, lead to the inference that it was intended to unload their contents there. It brought together at the premises all the materials and apparatus and experience required to manufacture methylamphetamine, save for pseudoephedrine.[21]
It was submitted that the finding that the vehicles were to be unloaded at 21 Paula Avenue was not open (Cosford Proposed Ground 4.2). It was submitted that proof of the intended unloading at 21 Paula Avenue was an indispensable link in the chain of proof, and had to be established beyond reasonable doubt. I reject that submission. The judge’s satisfaction that the vehicles were to be unloaded at that house was obviously relevant to, and assisted in, the drawing of the inference that the process of manufacture of methylamphetamine was both planned and imminent at the time of arrival of Mr Randylle and Ms McDonnell-Smith. But it was not logically indispensable to that finding in the sense which has been earlier explained. I note that unloading of the vehicles was not one of the matters which the Chief Justice listed in R v Randylle as being significant to the conclusion that the actions of the accused were part of a plan, and that the production of methylamphetamine was both intended and imminent.[22]
[21] R v McDonnell-Smith and Others [2006] SADC 79 at [134(3)].
[22] R v Randylle [2006] SASC 318 at [19]; (2006) 95 SASR 574 at 578.
In any event, in my opinion, it was open to the trial judge to be satisfied beyond reasonable doubt that the vehicles were to be unloaded at the house. That inference could be drawn from a number of circumstances including: the contemporaneous arrival at the house of both vehicles, each of which was carrying chemicals and equipment that complemented and supplemented the chemicals and equipment already in the house; that the utility was reversed into the driveway by Ms McDonnell-Smith with the assistance of Mr Randylle; that the house was occupied by Mr Cosford with other evidence indicating that he had both expertise and experience in manufacturing methylamphetamine; the level of telephone contact between Ms McDonnell-Smith and Mr Cosford and between Ms McDonnell-Smith and Mr Randylle; the equipment for measuring and packaging manufactured methylamphetamine; and the fact that the house had previously been used for the manufacture of methylamphetamine.
In my opinion, this ground of appeal is not reasonably arguable and I would refuse leave with respect to it.
Intention to Bring Pseudoephedrine
No pseudoephedrine was found in the house or in the vehicles. As to this, the judge said:
Whilst no pseudoephedrine was located in the cars or the house, I infer from the presence of all the remaining materials and apparatus required for production, that it was intended to bring that substance to the premises for the manufacture to begin and, in this respect, I take account of the pseudoephedrine traces found on the hand swabs of McDonnell-Smith and Randylle and of the by-products found in the jar in Cosford’s bedroom.[23]
[23] R v McDonnell-Smith and Others [2006] SADC 79 at [134(9)].
Both appellants sought permission to appeal on the ground that this finding was in error (Cosford Proposed Ground 4.3; McDonnell-Smith Proposed Ground 5.8).
It was submitted that in the light of the finding of the judge that it was the iodine/hypophosphorous acid/pseudoephedrine method of manufacture which was to be used, a finding that pseudoephedrine was to be brought to the house for the “planned and imminent” process of manufacture was indispensable. I am prepared to accept that that was so, but I also consider that it was open to the judge to find beyond reasonable doubt (as I am satisfied he did) that it was intended by the accused that pseudoephedrine would be brought to the house. The combination of circumstances to which reference has already been made[24] indicate that the alternative possibilities advanced by the appellants, ie, the vehicles simply being parked in the driveway, or that they were being positioned so as to be loaded with further material, could be rejected as reasonable alternative hypotheses.
[24] Cf R v Randylle [2006] SASC 318 at [19]; (2006) 95 SASR 574 at 578.
In relation to this proposed ground, the appellants also complained that the judge had inferred the intention to bring pseudoephedrine to the Windsor Gardens property from, amongst other things, the presence of pseudoephedrine traces on the hand swabs of Mr Randylle and Ms McDonnell-Smith and from the analysis of the residues found in Mr Cosford’s bedroom (Cosford Proposed Ground 4.4; McDonnell-Smith Proposed Ground 5.9). It was said that one could not infer from either of these facts that it was intended to bring pseudoephedrine to the premises. If that was the way in which the judge had reasoned, I would agree that there would be some merit in this submission. But that is not what the judge did. His reasons make it clear enough that the recent prior association of each of the accused with pseudoephedrine was simply one circumstance which he took into account in this regard[25] and that it was not the sole basis for his finding.
[25] R v McDonnell-Smith & Others [2006] SADC 79 at [134(9)].
I would refuse permission to appeal on each of these proposed grounds.
Presence of Iodine
As part of his reasoning to the conclusion that the manufacture of methylamphetamine was planned to take place in the house, the judge found that there was within the two vehicles all the equipment required to manufacture methylamphetamine by the iodine/hypophosphorous acid/pseudoephedrine method, as well as the necessary consumables, with two exceptions, namely, iodine and pseudoephedrine. The judge noted that iodine was found in the house. In making that finding, the judge overlooked evidence indicating that some 250 grams of iodine was also contained within the two vehicles.
Mr Henchliffe submitted that the judge had relied upon his belief as to the absence of iodine in the vehicle, and its presence in the house, to draw his conclusion that the manufacture of methylamphetamine was planned to take place inside the house (and therefore was both planned and imminent).
I regard the judge’s oversight concerning the presence of iodine in the vehicles as being of no consequence. It may be that small quantities of methylamphetamine could have been manufactured using the small amounts of iodine in the vehicles. But there was a significant disproportion between, on the one hand, the large amount of equipment suitable for use in manufacturing methylamphetamine which had been assembled at the premises, and, on the other, the small amount of iodine in the vehicles. That disproportion suggested that there was to be another source of iodine. The purchase by Mr Cosford, on only the preceding day, of 5 kgs of iodine for $968 was significant. That iodine was in the house and the inference that it was to be used in the manufacture of methylamphetamine was strong. In my opinion, in these circumstances, it is not reasonably arguable that this error by the judge indicates that his verdicts are unreasonable or that there has been a miscarriage of justice. I would refuse leave to appeal on this ground (Cosford Proposed Ground 4.5).
Mr Cosford’s Possession of a Rifle and Silencer
Each of the appellants submitted that the trial judge had erred in taking into account evidence that Mr Cosford possessed a rifle and a silencer. Those items had been found by the police in Mr Cosford’s bedroom.
In my opinion, there is nothing in this proposed ground (Cosford Proposed Ground 5; McDonnell-Smith Proposed Ground 6). Although in his review of the evidence, the judge did say that he would take “some, but limited, account, as an item of circumstantial evidence, of Cosford’s possession of the firearm and silencer”,[26] he said later expressly that he did not attach any significant weight to this evidence and that “my decision would stand whether or not that evidence was available”.[27] I would refuse leave to appeal on this ground.
[26] R v McDonnell-Smith & Others [2006] SADC 79 at [70].
[27] Ibid at [130].
Drug Traces on the Hand Swabs
As indicated earlier, traces of amphetamine, methylamphetamine and pseudoephedrine were found in the hand swabs taken from each of Mr Randylle and Ms McDonnell-Smith. The judge used this evidence in inferring that each of the accused had, prior to 7 January 2005, been in possession of methylamphetamine, and further, that each had an interest in methylamphetamine.
The judge rejected an explanation put forward by counsel for each of Mr Randylle and Ms McDonnell-Smith at trial about the presence of the drug traces on their hands, ie, that they may have acquired those traces from the handling of the cargoes found in the respective vehicles. The judge said:
… I do not regard that as a rational hypothesis. There was evidence of scientific testing carried out by Dr Pigou on all of those items yet none of it revealed the presence of amphetamine or pseudoephedrine on them.[28]
[28] Ibid at [134(10)].
Both of the present appellants sought to critique that conclusion (Cosford Proposed Ground 6; McDonnell-Smith Proposed Ground 7). They submitted that contrary to the understanding of the judge, Dr Pigou had not swabbed the exterior of the cargo (the wooden box and other containers). His evidence was not capable therefore of negativing the exterior of the cargoes as the source of the drug traces. Thus, so the argument ran, the alternative hypothesis put forward for the presence of the drug traces could not be excluded as a reasonable hypothesis. In this regard it was also pointed out that drug traces had not been found in the fingernail scrapings of Ms McDonnell-Smith and Mr Randylle, only on the swabs taken from their hands.
I agree that the judge was mistaken in thinking that Dr Pigou had negatived the presence of amphetamines, methylamphetamine or pseudoephedrine on the outside of the cargoes. It is clear enough that Dr Pigou analysed only the contents of the wooden box and the contents of items of glassware where residues were evident, and not the exterior surfaces of these items.
However, I do not regard this error as being significant. It is necessary to bear in mind the use which the judge made of the finding of drug traces in the swabs taken from Mr Randylle and Ms McDonnell-Smith. As already noted, the inference drawn by the judge was that those accused had, prior to their arrest, been in possession of methylamphetamine. That, in turn, was used by the judge to indicate that each had some interest in methylamphetamine. In the case of Ms McDonnell-Smith, the circumstances of her driving a vehicle containing equipment and consumables suitable for use in the manufacture of methylamphetamine in collaboration with Mr Randylle, who was driving a vehicle also containing equipment and consumables suitable for use in the manufacture of methylamphetamine (without there being any innocent explanation for their presence), to a place at which methylamphetamine had previously been manufactured, and which was occupied by a person with expertise and experience in the manufacture of methylamphetamine, were sufficient to indicate, independently of the evidence derived from the traces on her hands, her interest in methylamphetamine. The same can be said of Mr Randylle. In relation to Mr Cosford, there was ample evidence indicating his interest in methylamphetamine. I refer to the items found in his bedroom and to the other items found in the house at Windsor Gardens.
The finding of the interest of the accused in methylamphetamine did not depend upon the inference which the judge drew from Mr Pigou’s evidence. In my opinion, it is not reasonably arguable the judge’s error in this respect indicates that his verdicts were unreasonable or that there has been a miscarriage of justice. I would refuse permission to appeal on this ground.
Finding of a Joint Enterprise
Both appellants complained of the trial judge’s finding that each of them and Randylle were participants to a joint enterprise (Cosford Proposed Ground 7; McDonnell-Smith Proposed Ground 8). As already noted, in this respect the judge said that he was:
… satisfied beyond reasonable doubt that between 1 and 8 January 2005 at Windsor Gardens, each of the accused was part of a joint enterprise, whether or not each knew of the entire role to be carried out by the others, to knowingly take a step in the process of manufacturing methylamphetamine, a process that was then planned and imminent.[29]
[29] Ibid at [136].
In that finding, the judge left open the possibility that each of the accused may not have known of the entire role which was to be carried out by the others. It was submitted that this circumstance was fatal to the judge’s finding. It was implicit in the appellants’ submissions on this topic, as I understood them, that it was necessary for each participant in a joint enterprise to be aware of the entire role to be played out by other participants in the enterprise. It was expressly submitted by Mr Henchliffe, on behalf of Mr Cosford, that as there was no evidence of any communication between Mr Cosford on the one hand and Mr Randylle on the other, it could not be concluded that they were party to a joint arrangement of any kind at all. It was also submitted that the reasons of the judge were affected by error as he had not identified the particular step or steps in the process of manufacture which were the subject of the joint enterprise.
In part, these submissions have already been addressed. I have dealt above with the submission that there was insufficient evidence showing acquaintanceship between Mr Cosford and Mr Randylle.
The appellants did not cite any authority in support of a proposition that a finding of a joint enterprise requires proof of knowledge by each participant of the role to be played by the others. There may be cases in which the prosecution is unable to prove that a particular step was taken, or was to be taken, by any one individual participant. See for example, R v Norton-St Clair and Riddle.[30] Such an inability is not considered fatal to the proof of a joint enterprise. That being so, it would be strange if the prosecution was nevertheless required to prove knowledge by each participant of the role or steps to be taken by the others. There may of course be particular cases in which the nature of the joint enterprise in question does require such proof, but in my opinion, this is not one of them. There was no requirement for the prosecution to prove that each of the accused knew exactly what each other accused was to do. Similarly, it was not necessary for the judge to identify a particular step or steps in the process of manufacture of methylamphetamine which was the subject of the joint enterprise.
[30] [2005] SASC 348 at [74]; (2005) 93 SASR 48 at 57.

I would refuse leave to appeal on this proposed ground.
McDonnell-Smith Grounds of Appeal 5.1-5.7
In these proposed grounds Ms McDonnell-Smith complained of certain findings of fact, and certain inferences drawn by the judge. However, neither the written outline of argument, nor the oral submissions made on her behalf, addressed these proposed grounds. Instead, the submissions made by Mr Stokes, who appeared for Ms McDonnell-Smith were to the effect that an innocent explanation of those facts had not been excluded as a reasonable possibility. It seems that the challenge by Ms McDonnell-Smith to the findings of fact was abandoned, and accordingly, I do not propose to address them.
Proof of Commencement of a Process of Manufacture
Each of the appellants submitted that the prosecution had not proved, on the facts found by the judge, that they had knowingly taken part in the manufacture of methylamphetamine at the Windsor Gardens house between 1 and 8 January 2005 as the evidence did not prove that a process of manufacture of methylamphetamine had commenced at that place within those dates (Cosford Proposed Ground 2, McDonnell-Smith Proposed Ground 4). It was submitted that other explanations for the conduct of the appellants, consistent with their innocence, had not been excluded as being reasonably possible. It was submitted that even accepting that a relationship between the three accused had been proved, and even accepting that each had some involvement with methylamphetamine the facts proved by the prosecution could not exclude as a reasonable possibility that Mr Randylle and Ms McDonnell-Smith were simply delivering to Mr Cosford’s house materials and consumables which might, at some indeterminate time in the future, be used in the manufacture of methylamphetamine. That being so, it was submitted that the prosecution had not proved that either of the appellants had taken any step in the process of manufacture of methylamphetamine.
An argument to similar effect was considered by the Full Court in R v Randylle.[31] It was rejected. The Court was satisfied that the findings made by the judge indicated that a process of manufacture had commenced. The court was also satisfied that each of the appellants was party to a plan to manufacture methylamphetamine at the Windsor Gardens house within a short space of time. The following passage from the judgment of the Chief Justice indicates the view taken by the Full Court:
…The process of manufacture involves the use of equipment, the use of consumables and the carrying out of steps or processes with the equipment and the consumables. Acquiring or assembling the equipment needed, or some of it, or acquiring or using the consumables required, or some of them, can be a step in the process of manufacture. Whether it is or not will depend on all the circumstances.
I regard the present case as a clear one. The evidence established that, between them, the offenders had all of the equipment required to manufacture methylamphetamine, they had identified a place at which to do it, and at least one of the offenders knew how to do it. On the judge’s finding the offenders between them had most of the consumables required, all they lacked was the pseudoephedrine. There was a plan involving the three of them to get the process of manufacture underway shortly after Ms McDonnell-Smith and Mr Randylle arrived at the premises. It is implicit in the judge’s findings that the offenders expected to obtain the pseudoephedrine in the near future.
In the light of those findings there is no difficulty in upholding the conclusion that when Mr Randylle arrived at the premises at about 2.00 pm on 7 January, he had taken a step in the process of the manufacture of methylamphetamine. The parties to the arrangement had passed beyond the stage that could be regarded as involving merely preparatory acts. Participating in bringing together, at one place, all of the equipment required and most of the chemicals required, with an intention of at that place, and within a short space of time, assembling the equipment and putting the chemicals to use to produce methylamphetamine can readily amount to the taking of a step in the process of manufacture.[32]
[31] [2006] SASC 318; (2006) 95 SASR 574.
[32] Ibid at [47]-[49]; 583.
I respectfully agree with those reasons and conclusions. The argument of the appellants on this proposed ground sought, in effect, to have the Court revisit the conclusions of the differently constituted Court in R v Randylle. In my opinion, such a course is inappropriate, but, in any event, I respectfully agree, as I have indicated, with the reasons and conclusions of the Chief Justice in R v Randylle.
No Case to Answer
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.