R v Cullen - [2012] SADC 50

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CULLEN
Criminal Trial by Judge Alone
[2012] SADC 50
Reasons for the Verdict of His Honour Judge Lovell
24 April 2012
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PRODUCTION OR CULTIVATION
Accused alleged to have taken a step in the process of manufacture by "storing" chemicals. Possession not proved beyond reasonable doubt.
Held: Accused not guilty of the charge and the alternative charge.
Controlled Substances Act 1984 (SA) s 4(4), s 4(6)(b), s 33(3), s 33(4), s 33J(1), referred to.

R v CULLEN
[2012] SADC 50
Background

At about 1.30 pm on 22 August 2009, the police attended at the address of 7 Tobruk Avenue, St Marys and pursuant to a general search warrant, searched a workshop located at the back of the premises. Part of the workshop had been altered to enable someone to live there.
It was not disputed that the police located items of equipment consistent with a clandestine drug laboratory. There was sufficient equipment found to enable the extraction of methylamphetamine. Also present, were chemicals with the exception of an amount of pseudoephedrine, sufficient to enable the production of methylamphetamine.
Prior to the trial commencing, the prosecution laid a fresh information. Mr Cullen was arraigned on the information charging him with manufacturing a controlled drug for sale. The particulars of the offence alleged were that between 8 August 2009 and 22 August 2009 at St Marys he knowingly manufactured a controlled drug namely methylamphetamine or an isomer thereof, intending to sell any of that drug or believing that another person intended to sell any of that drug. Mr Cullen pleaded not guilty and elected for trial by judge alone.
General Directions on the Law
Prior to the trial commencing, the defendant had requested further particulars. It was not disputed that the prosecution particularised their case by relying on the extended definition of the concept of “manufacture” as contained in the Controlled Substances Act 1984.
Section 4(4) of the Controlled Substances Act 1984 states:
(4) For the purposes of this Act, a person takes part in the process of sale, manufacture or cultivation of a controlled drug or controlled plant if the person directs, takes or participates in any step, or causes any step to be taken, in the process of sale, manufacture or cultivation of the drug or plant.
Here the prosecution relied on s 4(6)(b) as the relevant “step in the process”. It states:-
(6) For the purposes of this Act, a step in the process of manufacture of a controlled drug includes, without limitation, any of the following when done for the purpose of manufacture of the drug:
(b)storing equipment, substances or materials.
While the prosecution pointed to the equipment found at the premises, it particularly focussed upon the storage, by someone, of two bottles and a container located in the kitchen area of the warehouse. The two bottles, between them, contained 10 ml of hypophosphorous acid; 10 grams of iodine was found in a plastic container. It was alleged that the defendant had participated in the offence by storing the chemicals.
Pseudoephedrine was not found at the premises. The prosecution case was that the two bottles and container were stored for the purpose of a future “manufacture”. If a sufficient quantity of pseudoephedrine became available, using the contents of the two bottles and container mentioned, approximately 6 grams of methylamphetamine could be manufactured.
As it transpires the way the prosecution particularised its case was very important to its ultimate resolution.
The accused is charged with the offence of manufacturing a controlled drug for sale in breach of s 33(3) of the Controlled Substances Act 1984 which states:
(3) 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.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
For the prosecution to succeed it had to prove beyond reasonable doubt four elements.
First it had to establish that Mr Cullen knowingly manufactured the drug. As just mentioned the prosecution relied on the provisions of s 4 of the Controlled Substances Act and alleged that by “storing” the chemicals he “took a step” in the manufacturing process.
The prosecution allegation is that Mr Cullen took a step in the production of the methylamphetamine by storing the two bottles containing hydrophosphorous acid and the container of iodine in the warehouse. There was no direct evidence that he ever touched the two bottles or container of iodine. It was accepted by Mr Weir that the prosecution, to succeed on the question of “storage” had to establish that Mr Cullen, at the time of the police attendance, was in possession of the items. In this case it really had to be joint possession.
A person has possession of an object if he knowingly has physical custody or control of it. Control includes the power to dispose of the object. He may have the object in his immediate possession, for example in his hand or in his pocket. Alternatively he may have it in a place where, although he does not have immediate control of it, he has the exclusive right or power to place his hands on it, for example property in his house.
The essence of the concept of possession in law is that, at the relevant time, the person intentionally has control over the object in question. In this case, joint control. He must have the right to exclude other persons from possession. It is joint possession when each person has a share in the right to possess and the article is in a place that is accessible. Joint possession does not involve fractional rights in the object or equal rights to some fractional part of the object but rights to the totality.
Mere knowledge of the whereabouts of an item is not enough. It is not enough for the prosecution to prove that Mr Cullen knew the items were there. It is not enough for the prosecution to establish that he intended to assist in some way if another manufacture was to take place.
The prosecution must prove that at the time of the police attendance, or as earlier particularised he was in possession (joint possession) of the two bottles and plastic container in question. In other words, he must be both in physical control and have an intention to exercise control over the objects.
Secondly, the prosecution had to prove that Mr Cullen took part in the manufacture knowing that it was methylamphetamine or at least an illegal substance.
Thirdly, the prosecution had to prove that methylamphetamine is a prohibited substance. This was not disputed.
Fourthly, the prosecution had to prove that Mr Cullen intended to sell at least some of the drug (or believed another person intended to do so).
In relation to the fourth element the prosecution relied upon s 33(4) which relevantly states:
33—Manufacture of controlled drugs for sale
(4) If, in any proceedings for an offence against subsection (1), (2) or (3) it is proved that the defendant manufactured a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary that the defendant had the relevant intention or belief concerning the sale of the drug necessary to constitute the offence.
During the trial I ruled that s 33(4) was not available to the prosecution on the facts of this matter.
It was agreed that the “trafficable quantity” for this offence was 2 grams. Here the prosecution alleged that, on the evidence of the chemist Mr Painter, assuming all the iodine and hypophosphorous acid was used, approximately 6 grams could have been manufactured.
Given my ultimate findings in this matter it is not strictly necessary for me to decide this point. However, as the matter was argued and a ruling made during the trial I set out, briefly, my reasons.
In my view the presumption is only available to the prosecution in a case where it is known how much methylamphetamine was actually manufactured. In a case where the manufacture has not actually taken place s 33(4) has no application.
Subsection (4), as it stood in August 2009, itself refers to “any proceedings … it is proved that the defendant manufactured a trafficable quantity”. The intention of the legislation is for the presumption to apply when the amount manufactured is known. The prosecution could only point to the amount of chemicals stored to make an estimate of the “likely” amount that could be manufactured. Whether all of the chemicals found would have been used in the one manufacture was unknown.
In my view, in such circumstances, the presumption does not apply.
Prosecution Evidence
General Remarks
Generally the prosecution evidence was not contested. What inferences could be drawn from the evidence was contested. I therefore do not intend to go through the prosecution evidence in great detail. Rather I will summarise the points relied on by the prosecution.
Senior Constable Michael Strange
Senior Constable Strange produced a “mud map” in relation to the interior of the workshop.[1] He produced a booklet of photographs of various parts of the interior of the workshop.[2]
[1] Exhibit P2.
[2] Exhibit P1.
Of relevance was photograph 29. This was a photograph of a pyrex dish and a glass-shaped funnel located by other police officers during a search of the workshop. He “dusted” those two items and was able to detect a fingerprint on each item suitable for analysis. He “dusted” all items of glassware that were presented to him. He did not do any DNA sampling.
Constable Jonathon Barber
A Holden station wagon was located on the western side of the residence. A registration check revealed that the vehicle was registered to Mr Cullen at the address of 441 Belair Road, Belair.
A lease relating to the shed at the back of 7 Tobruk Avenue was tendered through Mr Barber. The lessor was Christopher Skorpos and the lessee was Tike Pty Ltd. The director of that company was Mr Anthony Cullen who is Mr Cullen’s father. Mr Anthony Cullen owned a business on South Road, Clovelly Park called Minisport. The location of this business was close to 7 Tobruk Avenue, St Marys.
Constable Barber confirmed that a female person named Wibberley was present inside the premises when he attended. He obtained the particulars of another person present namely Brett Nicole.[3] He believed that Mr Nicole produced an interstate identification.
[3] T 57.
Constable Matthew Browne
He attended on 22 August 2009 the address of 441 Belair Road, Belair and was directed to search those premises. The accused and Ms Vicki Rowe were living at the premises. Apart from locating documents in the name of Vicki Rowe, he located nothing of interest.
On 23 August 2009 he participated in a search at 7 Tobruk Avenue, St Marys.
He located a Medicare card in the name of the accused. This was located on a bench underneath the stairs. This was marked number 12 on Exhibit P2. The Medicare card was located either within a small plastic container or immediately next to it. Surprisingly he made no note of the precise location of where the item was found.
Senior Constable Geraint Michael Gledhill
He attended the Tobruk address on 22 August 2009. The general search warrant was executed by Detective Sergeant Davies and he was in the general vicinity when that was done. He noted Detective Sergeant Davies talking with the accused Mr Cullen. Two other men were present. He spoke to one of the men to check his identity.
Senior Constable Gledhill re-attended the premises on 23 August in company with Constable Barber and other members of the Sturt CIB. They conducted a further search. The search was conducted after the Drug and Investigation Branch had finished their investigation. He located a glass condenser on the mezzanine floor.[4]
[4] T 76. See also photograph 25.
Senior Constable David Cowan
He attended the Tobruk address on 23 August 2009 in company with a number of other officers and assisted with the search of the premises. Surprisingly he did not make any notes in relation to his attendance at the address.[5]
[5] T 83.
He was directed to the kitchen area of the workshop to search. Due to his lack of notes, he had little recollection of the search he conducted. He seized scales in the kitchen area and presented them to the exhibits officer. He also located two separate bundles of plastic bags and a bag of glucose which was seized along with a smaller plastic bag and spoons.
Senior Constable Katherine Venn
Senior Constable Venn searched the premises on 22 August 2009. She had some notes of the search that she conducted.
She also took down registration numbers of the vehicles at the house and gave evidence that the registered owner of the Suzuki vehicle at the front of the house was registered to the accused Timothy Cullen. It was registered to the address at 441 Belair Road, Belair. The Holden station wagon located at the side of the premises was subject to a registration check and like the Suzuki it was registered to Mr Cullen at the address at Belair.
Senior Constable Venn entered the workshop and saw a female walking down steps from the first level area. She spoke to her and indentified her as Billy Joe Wibberley.[6]
[6] T 93.
She searched the room upstairs which she described as a “bedroom/living area”.
The room was untidy, clothes were strewn everywhere and there were used syringes and syringes in packets in the room. Remnants of food and drink also could be seen.[7]
[7] Photograph 13.
Senior Constable Venn searched a maroon Nissan Pulsar of Ms Wibberley’s, registration XID 484. She did not locate anything of interest.[8] She searched the Holden station wagon and located nothing of interest. When she searched the Suzuki vehicle registered in the accused’s name she located a 325 gram pack of Glucodin powder which was seized.[9]
[8] T 95.
[9] T 96.
Senior Constable Venn returned to the premises the following day at around 2.15 pm and searched the upstairs bedroom area. She located there some documents. She identified an ANZ account statement (bank statement) in the name of Timothy Cullen. This was not seized. She was told it was not necessary. Why she was given such an extraordinary instruction was not explained.
Senior Constable Mandy Bell
She searched the premises on Sunday, 23 August 2009. Senior Constable Bell assisted Constable Venn. During the search of the upper level she located a note containing handwriting with numbers and names.[10] The note contained on the card a reference to “Your Dad” and a mobile number next to that reference. A number of computer items were also seized.
[10] Exhibit P7.
Detective Brevet Sergeant David Hunt
Detective Brevet Sergeant Hunt was part of the Drug Investigation Branch. On 22 August 2009 he attended at 7 Tobruk Street, St Marys as a result of information from other police officers about a suspected clandestine laboratory. As a result of a search that he conducted of the workshop where he located a number of items that could potentially be used in the manufacture of methylamphetamine, the scene was processed as an alleged clandestine laboratory.
His evidence as to what was located during the course of the search was not disputed and I do not intend to go through that evidence in any detail.
Detective Brevet Sergeant Hunt searched what was described as “the spray booth area”. In a speaker box items of glassware associated with a clandestine drug laboratory was located.[11] The Forensic Chemist, Mr Painter, attended to assist with the identification of items found at the workshop. The full exhibit log was tendered.[12] Detective Brevet Sergeant Hunt also took a video of the area searched.[13]
[11] Photograph 13.
[12] Exhibit P8.
[13] Exhibit P9.
Detective Brevet Sergeant Hunt followed the process of arranging for the destruction of the items located after an audit had been conducted by the Justice of the Peace.[14]
[14] T 152.
The question of fingerprinting of items he said was left to the site control officer as often many items are heavily contaminated. Often a decision is left to the crime scene examiner. It is rare for an item to be swabbed for DNA at a clandestine drug laboratory.[15]
[15] T 167.
Detective Brevet Sergeant Hunt was an impressive witness. The Drug Investigation Branch conducted their part of the investigation in a professional and thorough manner.
Benjamin Leigh Painter
Mr Painter, a forensic scientist, is based at the Forensic Science Centre of South Australia. He holds a Bachelor of Technology in Forensic and Analytical Chemistry obtained from Flinders University and a Bachelor of Science Honours degree also obtained from Flinders University. He has worked there since 2002 and currently is attached to the Illicit Drug and Clandestine Laboratory group. He is classified as an Analytical Chemist.
Part of his role involves attending crime scenes of alleged clandestine laboratories. His duties include advising members of the Drug Investigation Branch of the potential chemical hazards and how to safely handle potentially contaminated exhibits. He advises members of the Drug Investigation Branch as to what may be useful evidence and assist identifying exhibits that should be seized. He will also sample or swab some of those exhibits and take some exhibits back to the laboratory for further testing.
Having attended the scene at 7 Tobruk Avenue, St Marys and also conducted some investigations, he was of the opinion that there were chemicals and equipment present at the scene that indicated that the hypophosphorous acid and iodine method could be used to convert pseudoephedrine to methylamphetamine. The only significant item that was missing was pseudoephedrine.
Mr Painter described the method of manufacturing the methylamphetamine. It was not disputed and it is unnecessary for me to discuss it in these reasons. I simply observe that both hypophosphorous acid and iodine are required.
Mr Painter located in a plastic bottle a brown viscous liquid which he tested. The liquid was alkaline and contained a trace amount of methylamphetamine, chlorpheniramine, triprolidine, codeine reduction product and the elemental profile of the liquid contained sodium, iodine, phosphorous and chlorine. This was consistent with the remains of a previous methylamphetamine manufacture that had undergone a purification process whereby methylamphetamine would have been removed.[16] There was no way to determine how long it had been since the last purification process had been undertaken.[17]
[16] T 184.
[17] T 185.
Mr Painter was asked about the item marked TAS59 which was shown in photograph 61 of Exhibit P4. He described it as a one litre separatory funnel which had a broken outlet. If the outlet had not been broken it could have been used in either the extraction process of methylamphetamine or in the purification process. It was “broken” as the tap which needed to be used as part of the funnel had broken off.[18] He did not test for any chemical residue on this item because in his opinion the glassware had no “residue on there”.[19]
[18] T 197.
[19] T 200.
Mr Painter confirmed that a number of the items were “scattered throughout the workshop area”.[20] He agreed it was not consistent with any manufacture about to take place.[21]
[20] T 202.
[21] T 203.
Item TAS038 was a glass jar containing 5 ml of hypophosphorous acid. It was located in the kitchen cabinet, middle cupboard, on the west side of the kitchen. Item TAS063 was a plastic bottle containing 5 ml of hypophosphorous acid. This was located on a bench on the west side of the “spray booth”. Item TAS040 was a plastic bottle containing 10 grams of metallic prill. This was identified as iodine. The item was located in the kitchen cabinet, middle cupboard, on the west side of the kitchen.

The total amount of hypophosphorous acid from the two containers was 10 ml. The total amount of iodine located was approximately 10 grams. If an amount of extracted pseudoephedrine had been added to those substances and the process completed, an amount of approximately 6.1 grams of methylamphetamine could have been produced.
Mr Painter accepted that you could get more or less depending on the expertise of the person conducting the manufacture, the reaction conditions, the quality of the reagent and the presence of other impurities. He accepted that the person manufacturing could make a mistake and he might get no methylamphetamine.
Statement of James George Andrew
A statement of James George Andrew was tendered.[22] He is a Detective Sergeant of Police and is qualified to talk about the distribution and use of amphetamine in South Australia. The evidence is commonly given in cases of this nature and I do not intend to go through it. The significance of the evidence is that for amphetamine the prices were for 0.1 of a gram (Point) $50 - $100, 1 gram (G) $250 - $500, 3.5 grams (eight-ball) $1,300 - $1,800, 1 ounce (28 grams) (Oz) $6,000 - $10,000. As he said prices could vary depending on quality and availability.
[22] Exhibit P12.
Statement of Stephen Howard Andrews
A statement of Stephen Howard Andrews was also tendered by consent.[23] He is a Sergeant of Police attached to the Fingerprint Bureau of the Forensic Services Branch of the South Australian Police Force. He has had over 19 years continuous practical experience in the classification, searching, filing and identification of fingerprints. He examined fingerprint impressions from photographic negatives that had been supplied. These had been taken in relation to the separatory funnel. He compared the impressions with the impressions of Mr Cullen’s fingerprints and as a result formed the following opinions:
·The first impression was identical with the left thumb of Timothy Scott Cullen.
·The second impression contained insufficient detail for any identification; however Mr Cullen could not be eliminated from having left this impression.
·The third impression contained insufficient detail for any identification or elimination.
[23] Exhibit P13.
It was not disputed that the first impression was located on the glass funnel found in the mezzanine area in the warehouse.[24]
[24] Exhibit P1 photograph 29.
It was an agreed fact that swabs taken of Mr Cullen’s hands, when analysed, showed traces of methylamphetamine.
Defence Evidence
The accused gave evidence.
He is currently 39 years of age living at Meadows. He went to the Blackwood High School and completed Year 10 and then Year 11 at Marion High School. He became an apprentice motor mechanic after leaving school and also worked for his father. His father’s business was initially at Blackwood and a new business was opened at 1257 South Road, St Marys.
He has a brother who is currently 37 years of age. In 2003 his brother was diagnosed with a brain tumour and as a result suffered seizures. He needed constant care and therefore Mr Cullen lived with him and looked after him for about three years as his primary carer.
Mr Cullen admitted that he became involved in drugs. He initially was involved recreationally in drugs while living with his brother. After living with and caring for his brother for three years, he went back to work with his father due to the fact that his brother’s condition had stabilised. Mr Cullen moved to 441 Belair Road. Mr Cullen remains working for his father.
Mr Cullen said that in about 2005 his father’s business expanded by taking extra premises at Tobruk Avenue. He identified the lease that had been tendered as part of the Crown case. Mr Cullen confirmed that the lessee was his father’s company. He has never had an interest in the company. He is an employee of the company.
In 2005, 2006 and 2007 the warehouse was used as a minor mechanical workshop. It was also used for storage. The keys to the premises were kept at his father’s business. His father’s business involves supplying spare parts for Mini Minors or Coupe S type Minis. As they were bringing in containers of new parts they needed storage and material was moved from the South Road to the Tobruk Avenue premises. It became very untidy over the years.
In 2008 renovations were conducted on the property. A mezzanine area above the office was constructed. Mr Cullen assisted the builder and a person by the name of David Watkins assisted as well. Mr Cullen had met Mr Watkins approximately three years before this incident. Mr Cullen identified, in photograph number 5, a blue station wagon which he said was owned by David Watkins.
The renovations were undertaken so his brother could move in to the area as he had been having problems with his girlfriend. In the end his brother did not shift there. Mr Watkins needed somewhere to live and an arrangement was reached whereby he lived in the warehouse. This arrangement commenced early 2009. Mr Watkins worked for a scrap metal firm and in exchange for rent he was meant to assist cleaning-up the warehouse. Mr Watkins was given keys to the premises.
Mr Cullen said that by the end of July his father lost patience as Mr Watkins was bringing material to the premises rather than removing it. Mr Cullen said that his father asked him to tell Mr Watkins to move on as it was “not working out”.[25] Mr Cullen organised to meet Mr Watkins to get the keys back. He said he went round there on about 20 August but Mr Watkins didn’t turn up. He tried ringing him but was unable to contact him. He organised another meeting and spoke to his girlfriend Ms Wibberley. Ms Wibberley had purchased shortly prior to the incident, his vehicle, namely the white Suzuki.
[25] T 286.
Mr Cullen said that he had sold this vehicle to her approximately two weeks before the police attended. He was attempting to arrange the handover of the transfer papers. Ms Wibberley had given him a $500 deposit and he had told her that he would “sign it over as long as you gave me the rest”.[26]
[26] T 288.
He went to the premises to meet Ms Wibberley and Mr Watkins. He was driving the white Holden and the white Suzuki was already at the premises. Two other people turned up around the time the police pulled up.
He agreed that the police attended and that he was approached by Detective Davies and shown a general search warrant. He agreed that he had a conversation with Detective Sergeant Davies.
Mr Cullen went in with the police, who had shown him the general search warrant, and he saw Ms Wibberley walking down stairs from the mezzanine area carrying two shopping bags.
He denied any knowledge of syringes that were found in the upstairs bedroom area.
In relation to Exhibit P7, Mr Cullen denied it was in his handwriting but agreed that the notation “Your Dad” was followed by his father’s telephone number. He thought the handwriting was probably his brother’s. He speculated that he thought it was written by his brother’s girlfriend. He said it was definitely not his brother’s handwriting.[27]
[27] T 292.
Mr Cullen agreed that he had a bank account with the ANZ. He agreed that he would print off hard copies of his records from time to time and they were stored in the workshop area.
In relation to Exhibit P5 the Medicare card, he said he could only “assume that I dropped it when we were building the upstairs area”.[28] He had to get a new card.
[28] T 294.
In relation to the glassware with his fingerprint on it he was not able to give an explanation. He said he had never seen the piece of equipment before. He said it may have got there when he assisted Mr Watkin’s move into the premises; he said he carried some items in.
Mr Cullen denied knowledge of any of the other items of glassware being found, particularly those hidden in the speaker. He denied any knowledge of the chemicals located in the kitchen.
Mr Cullen denied being involved in the manufacture of any drugs between 8 August and 22 August 2009.
Mr Cullen was unable to explain why Ms Wibberley’s vehicle namely a maroon Nissan Pulsar XID 484 was parked outside the premises. He simply said that she also owned the white Suzuki Swift.
He denied any knowledge of the bag of Glucodin that was found in the white Suzuki.
Mr Cullen said that the last time he had used methylamphetamine was the night before or the morning of his arrest. If true, this would account for the traces of methylamphetamine on his hands.
Mr Cullen agreed that he was aware that both Ms Wibberley and Mr Watkin’s were involved in the drug scene.[29]
[29] T 300.
He was unable to give an explanation for why his ANZ documents may have been on the bedroom floor.[30]
[30] T 305.
Mr Cullen said that he went to the workshop about three to four times after Mr Watkins had commenced living there. This was to obtain car parts.[31]
[31] T 306.
Mr Cullen said that after the police had attended at the premises at Tobruk Avenue he continued to receive money from Ms Wibberley for payment of the car although he did not bank any of that money. He said he used it to buy a remote control car and paid about $850 for it.[32] He allowed her to use the car because she was a friend of Mr Watkins and he had also known her for a while.
[32] T 309.
Mr Cullen said that when he helped Mr Watkins move in he did not assist in transporting flasks or funnels or toluene. He did not go “through his stuff”.[33]
[33] T 309.
Mr Cullen’s explanation for why he helped Mr Watkins move in and perhaps then left his fingerprint on a separatory flask was fanciful.[34] I reject his evidence concerning the sale of his vehicle to Ms Wibberley also as fanciful.
[34] T 302.
Discussion
I was generally unimpressed with the accused’s evidence. There are parts of his evidence which I reject outright. His suggested explanation for the presence of his fingerprint on the separatory funnel was simply fanciful. I reject his explanation regarding the “sale” of his car to Ms Wibberley. I find he lied to me about both those matters and those lies affect his credibility in a general way.
However, there were some parts of his evidence that I do accept. I accept his evidence relating to why the bedroom/mezzanine floor area was constructed. I accept his evidence that he was not living at the warehouse. Indeed I find he was living at the address of 441 Belair Road, Belair: his two cars were registered at that address and I accept his evidence about his involvement with the care of his brother and his work with his father.
I accept that Watkins was living at the premises with Ms Wibberley. I reject his evidence that the reason he attended the premises on the day the police initially attended was to meet Mr Watkins to tell him to move on. It is likely that he attended the warehouse more regularly than he was prepared to admit but I am unable to make a finding as to how often that was.
The prosecution alleged in this case that the accused “took a step” in the process of the manufacture of methylamphetamine. The step identified was the storage of hypophosphorous acid along with the iodine such that he could “complete” a manufacture in the future. It was necessary to complete the manufacture to procure pseudoephedrine.
The prosecution relied upon the amount of hypophosphorous acid and iodine located and the evidence of the forensic chemist Mr Painter to establish that approximately 6 grams of pure methylamphetamine could be produced.
Mr Weir argued that the evidence established beyond reasonable doubt that the accused was “connected” with the glassware and chemicals found in the premises.
The Crown relied on the following points:
1.     The accused was found at the front of the premises at 7 Tobruk Avenue, St Marys.
2.     Two cars registered in the accused’s name were found at the premises. One, a Holden Commodore was parked in the driveway adjacent to the house and the other, a Suzuki Swift was parked out the front of the house.
3.     A packet of Glucodin was located in the glove box of the Suzuki Swift.
4.     Glucodin can be used as a cutting agent for methylamphetamine.
5.     An identical bag of Glucodin was located in the kitchen dresser.
6.     The iodine and some of the hydrophosphoric acid was located adjacent to the Glucodin in the kitchen dresser.
7.     The premises were rented by the father of the accused.
8.     When shown the search warrant he let the police in.
9.     Constable Venn located (but did not seize) an ANZ document in the name of the accused in the bedroom area of the mezzanine area.
10.   A Medicare card in the name of the accused was located on a table under the stairs leading to the mezzanine area.
11.   The presence of the “telephone” card with the accused’s father’s telephone number on it.
12.   The presence of the fingerprint of the accused located on a “separatory funnel” found on a shelf at the top of the stairway of the mezzanine area.
I find that at the premises a manufacture of methylamphetamine had recently taken place; precisely when I am not able to say. The presence of the equipment and chemicals taken in conjunction with the evidence of Mr Painter, the forensic chemist, leads overwhelmingly to that conclusion. The accused did not contest that evidence. His defence was that he simply had nothing to do with it.
I also find that the accused participated in some way with that manufacture. However, I am unable to say what role he played. It may be, given the presence of the Glucodin in his vehicle that he became involved only after the manufacture had taken place. He may only have been involved in “cutting” the final product. However, the presence of his fingerprint, on the separatory funnel (even though it was broken) along with the other matters referred to earlier lead inevitably to the conclusion that he had some role to play.
However, he was not charged with that offence. He was charged, in effect, with participating in a manufacture by storing the hypophosphorous acid and iodine with the intention of using them at some future time.
It is puzzling to me why he was not charged with the earlier offence. The evidence of his having some involvement is cogent. The prosecution, however, have proceeded with the charge of taking part in the manufacture of methylamphetamine on the basis that he “took part” by storing the bottles and hypophosphorous acid and container of iodine.
The prosecution had to prove that he was somehow involved in the storage of those chemicals. The prosecution accepted that in effect they had to prove he was in possession of those chemicals.
That some of the contents of the chemicals had been used in the prior production is irresistible. The bottles were only partially full.
There was sufficient glassware located in the premises for a future production to have been undertaken if pseudoephedrine had been obtained. When such a production may have taken place is unknown.
When “packing-up” chemicals from one production becomes “storing” for the next production is an interesting question. Given my findings, I do not need to resolve that matter.
The prosecution case was divided into two parts. First, the investigation performed by the Drug Investigation Branch; they attended the scene since a clandestine drug laboratory was suspected.
The investigation conducted by them was exemplary.
The second part of the case mounted by the prosecution related to the investigation conducted by the police into the accused’s involvement (and indeed as to generally who was involved) in what was located at the scene. Whether Mr Cullen could be connected with the premises, such that possession of the items at the warehouse could be inferred or proven, was clearly going to be an issue.
Regrettably I could only describe that investigation as “patchy” at best.
A number of officers who assisted in the search of the premises were called to give evidence. They all gave their evidence honestly. However few of them made notes of where and when in the premises the various items were seized. The lack of notes, or the availability of notes, was surprising. Documents bearing the name of the accused were located in the bedroom/mezzanine area, but surprisingly were not seized. I accept Senior Constable Venn’s evidence that she was told the seizure was not necessary but why such an approach was adopted was not explained.
The photographs taken of the mezzanine area show many items that could have been seized and tested to establish a stronger connection (or not) of the accused with the premises. Regrettably no items were seized. As a result there was no opportunity for DNA evidence to be obtained from the many items strewn around the mezzanine area.
It is possible of course that the police investigations focussed, initially at least, on Mr Watkins and Ms Wibberley rather than Mr Cullen. It may be he became a suspect only after the fingerprint match. However, a thorough investigation into who was residing at the premises ought to have been untaken in any event. It may be of course that such investigations would only have established that it was Watkins and Wibberley who were actually living there. Regrettably however the issue was simply not investigated thoroughly.
However, I am not satisfied beyond reasonable doubt that Mr Cullen was living at the premises. Indeed the evidence clearly pointed to the fact that he was living at 441 Belair Road where his cars were registered. Two other people were living there. While the prosecution have established that Mr Cullen had a “connection” with the residence and that in some way was involved in the previous manufacture, does not mean I can infer beyond reasonable doubt that he possessed those items.
For example, if a neighbour comes to a person’s house and assists in the baking of a cake, including taking a piece home to eat, such actions do not, in the absence of other proof, lead inevitably to the conclusion that the neighbour some time later is in possession of the cake ingredients stored at the house.
Given that the prosecution have not proved beyond a reasonable doubt that he was living at the warehouse, they must establish that in some way he had joint possession of the items at the warehouse. That is, that Mr Cullen had both joint physical control of those items with Mr Watkins and Ms Wibberley and the intention to exercise that control. There is insufficient evidence to establish that beyond a reasonable doubt.
I am satisfied beyond reasonable doubt of the following matters:
·Mr Cullen owned the white Suzuki registration number S889 ACZ located at the premises on 22 August 2009.
·Located in the glove box of the car was a packet of Glucodin. Glucodin can be used as a cutting agent for methylamphetamine.
·An identical brand of Glucodin was located in the “kitchen” area of the warehouse.
·The fingerprint of Mr Cullen was located on the glassware located on the mezzanine floor of the warehouse.
·Mr Cullen’s other vehicle, a Holden station wagon, was also located at the premises.
·Located in the premises was sufficient equipment to complete the production of methylamphetamine.
·Located in the premises was material consistent with the by-products of a recent production of methylamphetamine.
·Traces of methylamphetamine were found on the hand of Mr Cullen.
In my view, it is established beyond reasonable doubt that Mr Cullen participated to some extent in the production of methylamphetamine that had occurred recently.
However, in this case, I am not satisfied that Mr Cullen was in possession of the two bottles or the container of iodine between the dates as alleged.
The case for the prosecution is a circumstantial one. The Crown must exclude all reasonably possible inferences consistent with innocence. It must prove not only that Mr Cullen’s guilt is a rational inference but that it is the only rational inference available. It has failed to do so.
This is an unusual situation. I find proved beyond reasonable doubt that Mr Cullen participated in some way in the previous manufacture. Surprisingly he was not charged with that offence. The prosecution however, failed to establish beyond reasonable doubt a sufficient connection with the premises for me to infer beyond reasonable doubt that he was in joint possession of the items mentioned.

I certainly have a suspicion that Mr Cullen may well have involved himself in some way in a future manufacture of the drug. But the prosecution have not established that he had a sufficient connection with the premises for me to infer beyond reasonable doubt that it was Mr Cullen either alone or jointly who had possession and stored the chemicals for the purpose of a further production of methylamphetamine. They have failed to prove that he had both physical control and an intention to exercise control over the two bottles containing hydrophosphorous acid and container of iodine.
Mr Cullen is entitled to the benefit of the doubt. He is entitled to be acquitted of the charge.
The prosecution relied, if I was not satisfied as to the “sale” element of the charge, on s 33J(1) as an alternative.
As the element of “taking a step” and therefore possession is identical to both charges, he is entitled to the benefit of the doubt on that charge as well. I therefore acquit him of the alternative charge.
I find Mr Cullen not guilty of both charges.