R v Day - [2005] SADC 115

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v DAY
Reasons for Ruling of His Honour Judge Barrett
30 August 2005
CRIMINAL LAW - PARTICULAR OFFENCES
Taking part in the manufacture of methylamphetamine - Disputed Facts - whether defendant involved in manufacture of completed product - whether any commercial aspect to offending.

R v DAY
[2005] SADC 115
Reasons for Judgment

This matter was set down for the trial of Allan John Day and Renata Jane Melis jointly on a charge of taking part in the manufacture of methylamphetamine (count 1 on the Information) and of Allan John Day on one count of theft (count 2). On the morning of the date set for trial, Mr Day was arraigned and pleaded guilty to both counts. Upon those pleas a nolle prosequi was entered in respect of Ms Melis on count 1. She was released and sat in the body of the court.
Mr Weir for the prosecution announced that there was a dispute between the DPP and Mr Day regarding the factual basis for the plea to count 1. At first it was put that the dispute was only on the question of whether or not there was an aggravating commercial aspect to the offence. During the hearing it transpired that there was a further dispute on the question of whether he was involved in only part of the process of manufacturing methylamphetamine, namely extracting pseudoephedrine from tablets, or whether he was engaged in the whole of the process.
The case for the prosecution consisted of reliance on the witness’ statements, including attached photographs, and two videos. The video, Exhibit P,1 was made on 27 February and showed the arrival of the police, the search of the house and interviews with the accused. The other video, Exhibit P2, was made on the 28 February and depicted in summary form the significant matters noted at the house. There were two batches of still photographs, one take by the police on the day of the arrest (Exhibit P3) and the other on the following day (Exhibit P4). I have read the statements, perused the photos and watched the videos. I should say, of the video Exhibit P2, that I have ignored verbal observations made by a police officer by way of commentary on the video where those observations are not part of the material contained in the sworn witness statements.
Undisputed Facts
At about 2 pm on Friday 27 February 2004 police visited a house at 8 St Margarets Crescent, Felixstow. It was a planned visit by about six officers who had been briefed beforehand about suspicions attaching to the premises. Police were let into the house once they announced themselves. The accused let police in through the front door and other officers were let in through the back door by police who had gone in the front way. One of the officers possessed and produced a general search warrant to the accused. The entry into the house and some of what transpired inside were videotaped. Exchanges between the police and the accused were captured on video. The video would suggest the process was quiet and orderly with the accused being cooperative. He was forthcoming to a degree after being cautioned. There were four adult occupants at the house and a 12 day old baby. It appears the accused and Ms Melis occupied the house as subtenants with their baby. The other adults present, Julia Bais and James Cootes, were visitors who were known to both the accused and Melis. Ms Melis and her baby were in the bedroom when the police arrived. The accused answered the front door and the other two adults were at a dining table. One syringe containing methylamphetamine was on the dining table and another was placed by Cootes on a breakfast bar near the table. The house was searched. On the kitchen table were found scales, plastic “deal bags”, a hand held food blender, a box containing “deal bags”, a small amount of brown substance, a white plastic container containing residue of a brown substance and a note pad with numbers and names of prescription medicines. An exhibits log was compiled by Senior Constable Hunt. It lists ingredients and apparatus found in the dining room and the kitchen, and more particularly in the kitchen cupboards.
There was found in a “bum bag” two separate amounts of cash. One amount totalled $2,700 and the other totalled $840. The total of $3,540 was in denominations which the video would suggest consisted of mainly 50s and 20s. The cash was not seized by police. It was returned to the accused sometime after it was counted in front of him.
The Crown Case
The Crown case is that the accused was between 1 January 2004 and 28 February 2004 engaged in manufacturing the completed product, methylamphetamine, and that he was doing it for money. It was not disputed that he was a user. In fact, it was not put to him that he was using any less than what he claimed, namely 2 gms per day. On the disputed facts hearing the Crown case is a circumstantial one. The items of circumstantial evidence are as follows:
1.There were present in the accused’s house two adults in close proximity to two syringes containing methylamphetamine. It is suggested these people were purchases of methylamphetamine from the accused and were having a “taste”. Cootes was seen handling one of the syringes.
2.The accused had around his waist a “bum bag” containing $3,540 in denominations of largely 50s and 20 which is consistent with sales of deals at $50 each. The accused in his evidence denied the bag was around his waist when the police arrived but the video, Exhibit P1, clearly shows him removing it from around his waist when asked to do so by the police. It is suggested the accused’s explanations for his possession of cash are not to be believed.
3.There were in the house medications in tablet form sufficient, when mixed with other ingredients, to make methylamphetamine worth at least $4,000 on prices then obtaining in the market in Adelaide.
4.There was high purity methylamphetamine in 16 plastic bags which, when “cut” would be worth about $800.
5.There were some indicia of a commercial enterprise such as plastic bags and scales.
6.There were in the premises, including in the kitchen cupboards, all of the ingredients and apparatus necessary to make the final product, methylamphetamine.
7.Finally, from his evidence, it could be said that the accused’s drug habit was costing him at least $500 per day and the only disclosed income into the household was a fortnightly welfare payment of $800.
The Defence Case
The accused was the only witness to give evidence for the defence. I summarise his evidence.
He is 33 years old. He lives with Ms Renata Melis, his former co-accused, and they are the parents of the baby girl who was 12 days old at the time of the police visit. The accused said he had been using methylamphetamine since he was 12 or 13. He developed a habit which reached a consumption of 5 gms per day at the time of his separation from his wife in Alice Springs in September 2002. His consumption was down to 2 gms per day when he was apprehended.
He said his consumption helps ease back pain as a result of back injuries. He said that for a time in 2002 he obtained outpatient counselling from Warinilla, a drug rehabilitation facility in Adelaide. He met Ms Melis at about the same time. His drug consumption continued despite the counselling. Ms Melis was a rare user of the drug. He said that his drug use of 2 grams per day cost him between $500-$600. He gave evidence of his income and assets. That evidence was vague and evasive. He said he had been unemployed since at least the end of 2002. The only clear source of income that he identified was a combined welfare payment to him and his partner of $800 per fortnight. When asked how he subsidised his amphetamine use he said:
Unfortunately I think in my statement I put it down as move and groove, buy and sell, preferably not unlawfully. I would buy a car, do it up a bit, sell it. I would do odd jobs or help, but I also found a way of extracting ephedrine which subsidised it as well through my dealer.
He expanded on the latter part of that answer by explaining that he carried out the first part of the process of manufacturing methylamphetamine by extracting pseudoephedrine from prescription tablets. He then exchanged that product with the methylamphetamine provided by his dealer. He denied ever receiving money in that process. In that way his taking part in the manufacture of methylamphetamine was only the production of pseudoephedrine, and although he bartered that for the completed product, there was no commercial aspect to the enterprise, in that he received no cash.
The accused made reference to having received $68,000 from the sale of his house in Alice Springs, by which I took him to mean that he had received that money as his share of the property division between him and his wife.
Although his evidence was not clear or explicit I conclude from the following exchange that that money had been spent:
Q So, $500 a day habit and you were unemployed?
A That’s correct. Yes. I also spent $68,000 of my own personal money at that time, that I slowly withdrawed (sic) out the bank to pay for it.
In examination in chief he was asked to explain the cash found on him. This exchange took place:
Q Can you recall how much cash there was.
A Only from what I was told or I heard today, $3,500. I couldn’t remember the exact quantity. Our daughter had only just been born 2 days. We had a car payment that had to be made and there was in the same money donations from our families to help along with getting a crib and painting the nursery which had not yet been done. That was just family did give us some money to help along with things.
When cross-examined about that topic he said as follows:
Q    Can you say who in particular gave you that money.
A    I can say that portions of moneys were from Renata’s family and portions of moneys from my family, meaning my father, my mother and my two brothers, were donated. Exact quantities from each person I wouldn’t be able to verify, but there was also –
Q    How much in total from your family.
A    From my personal family?
Q      Yes.
A    Possibly about $1,500 to $1,800.
Q    Why did they give it to you.
A    They were cash donations to help Renata and I getting requirements for our child who was born two weeks prior.
Q    They gave you that money in $50 and $20 denominations, did they.
A    They actually – I used the money prior to that to pay some bills and just put the money back in on pay day, withdraw it from the teller machine, so portions of that money was short of shuffled around over the period of a week I suppose until Renata got home. Sometimes you have got to rob Peter to pay Paul, as they say, to pay bills, you know.
The accused gave evidence that the woman who was present at the house was one of two people he regularly received amphetamine from. He said that the couple had arrived with the finished product and that he was the one receiving a taste rather than the other way around. He said that they had also arrived with some tablets and they asked if he was interested in extracting for them. He said that they “may have been there to pick up things”. He said he believed the couple were on their way to Alice Springs or Darwin in the near future. He said that they had brought 1.01 gms of the finished product with them and that they were going to leave it for him “as a gesture or a gift or whatever”. He gave evidence about the presence in his kitchen cupboards of the chemicals and apparatus necessary to make the completed product, methylamphetamine. He said that he had an incomplete idea about how the final product was manufactured. He said that some of the ingredients were in the house for domestic purposes. For example he said the hydrochloric acid was present for cleaning concrete. Essentially he was saying that some of the ingredients were put in his kitchen cupboards without his knowledge. These exchanges took place.
Q The iodine items, if I remember correctly, were located in the kitchen cupboards. Did you put them there.
A I did not personally put them there, but the said person who brought all the stuff to the house, put stuff all through the house, not all over the house, but there was a few boxes of various things put away so it was not visually seen, so I believe.
Further:
Q The chemicals such as hydrochloric acid, iodine, red phosphorus and so forth, and a number of other chemicals pivotal to manufacturing methylamphetamine made their way to your kitchen cupboard by these individuals, is that what you are suggesting?
A I know for a fact the said person who delivered it or did bring the boxes. I’m not sure at that stage what chemicals they were, but I know that he did bring them so they were out of sight, yeah.
Mr Love, for the accused, submitted that there was an apparent inconsistency between two passages in the statement of Dr Pigou. In paragraph 4.8 of his statement Dr Pigou had said:
Crude methylamphetamine product can then be purified by steam distillation or solvent extraction methods after it has been converted to its basic form. This conversion is generally achieved by the addition of sodium hydroxide (caustic soda) to the mixture. This chemical was not identified at the scene.
Further down in the summary of the statement, Dr Pigou concludes at paragraph 5.1:
All of the chemicals and apparatus required to produce methylamphetamine from pseudoephedrine pharmaceutical operations using the iodine/red phosphorus water method were present at the scene.
It was also submitted that Dr Pigou had said that some of the glassware was not suitable for aspects of production of methylamphetamine. No application was made to call Dr Pigou to put to him any inconsistency in his evidence.
Conclusion
The prosecution must prove beyond reasonable doubt that the accused was engaged in the manufacture of the final product, methylamphetamine, and that despite some part of the product being for the accused’s own use there was a commercial aspect to the enterprise as well, consisting of selling it for money. The accused’s evidence was unsatisfactory on the matters in dispute. His evidence about how he funded his drug taking is so unsatisfactory that I do not believe it. That does not of course lead to the conclusion that he supported his habit by selling methylamphetamine, but other evidence indicating that conclusion is not weakened or thrown into doubt by his own testimony. I deal with the items of circumstantial evidence presented by the prosecution.
1.The presence of the two adults indicating that they were there as purchasers having “taste”. The inference that they were there for this purpose gains some support from the police observation that the male was seen putting something on the kitchen bench which was discovered to be a syringe with methylamphetamine in it. It is possible of course that he was merely trying to move the syringe further away from him to reduce his culpability but his apparent exercise of some control over it can certainly be interpreted in the way that the Crown suggests. Standing alone it does not identify the visitors as customers.
2.The possession by the accused of a substantial quantity of cash. This, I think, is a piece of evidence strongly suggestive of a commercial aspect to the accused’s involvement with the drug. As I have indicated earlier, I do not accept his explanations for possession of it.
3.The presence of tablets which, with other ingredients, were capable of producing methylamphetamine. This evidence is equivocal on the disputed facts hearing because the accused asserts that his taking part in the manufacture of methylamphetamine consisted precisely of extracting pseudoephedrine from tablets.
4.The presence of high purity methadone in 16 plastic bags. This evidence is certainly consistent with the Crown case that the accused was selling the completed product, although it may also be consistent with his purchasing methylamphetamine in that form.
5.The presence of some indicia of a commercial enterprise, namely small plastic bags and scales. As was pointed out by Mr Love for the defence, other indicia were absent. There were not telephone intercepts, not lists of customers, etc. This evidence is really of limited weight in the disputed facts hearing because it might be expected that the accused would need scales and plastic bags in the course of bartering the pseudoephedrine which he admitted producing.
6.The presence in the house, and more particularly in the kitchen cupboards, of all the ingredients and apparatus necessary to make the completed product. I regard this a persuasive evidence of the production of the complete product.
7.The disparity between the stated income of the accused on the one hand and his expensive habit on the other. I regard this as persuasive evidence of a commercial enterprise involving the receipt of cash.
It should be said that evidence regarding the theft of chemicals and equipment from the Modbury High School, making out the charge of theft, is evidence of another source of income for the accused. I accept that from time to time he might have relied upon the fruits of offences of dishonesty to support his habit. Specifically I do not reject his evidence that he intended to sell some of the material which is the subject of count 2. It is clear however, that the accused would need to have cash to purchase his methylamphetamine if he was not producing it himself. He claimed that his production of pseudoephedrine merely subsidised his purchase of methylamphetamine. I am satisfied overall however that he was producing the whole product. Even then he needed cash to support his consumption. As indicated earlier, his evidence about his financial position and, in particular, of his possession of the cash, is not believable.
Considering all the evidence I am satisfied that the accused was involved in the complete manufacture of methylamphetamine and that he sold part of the product for money. I do not doubt that he ingested some, maybe most of the product he manufactured and I have no reason to doubt his claimed consumption of 2 grams per day.
I will hear submissions on where those findings place the accused in the hierarchy of those involved in the drug trade and other matters relevant to sentence.