R v Diesing - [2010] SADC 48

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DIESING
Criminal Trial by Judge Alone
[2010] SADC 48
Reasons for the Verdict of His Honour Judge Chivell
1 April 2010
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PRODUCTION OR CULTIVATION
One count of taking part in the manufacture of methylamphetamine – circumstantial evidence – accused attends at house where police already in attendance – equipment found in boot of car driven by accused – whether proved beyond reasonable doubt that accused taking a step in process of manufacture.
Verdict – not guilty of taking part in manufacture, but guilty of possession of equipment.
Controlled Substances Act 1984 (SA) s 32 (1)(b), s 31, s 31(1)(c), s 42; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 34; Summary Procedure Act 1921 s 104; Juries Rules 1996 (SA) r 16, referred to.
R v Randylle [2006] SASC 318; Re Avory: Question of Law Reserved (No 1 of 2003) [2003] SASC 430, 87 SASR 392 ; Bacra v R (1975) 133 CLR 82; Shepherd v R (1990) 170 CLR 573, considered.

R v DIESING
[2010] SADC 48
Introduction

Martin Andre Diesing is charged with one count of taking part in the manufacture of methylamphetamine, contrary to s 32(1)(b) of the Controlled Substances Act 1984 (“the CSA”).
Particulars of the charge are as follows:
Martin Andre Diesing on the 23^rd day of September 2005 at Woodville North, knowingly took part in the manufacture of methylamphetamine, a drug of dependence.
Trial by Judge Sitting Without a Jury
Mr Diesing elected to be tried by a judge sitting without a jury, pursuant to s 7 of the Juries Act 1972. I dispensed with compliance with the Juries Rules 1996, pursuant to Rule 16, and ordered that the trial proceed without a jury.
I informed Mr Stokes, counsel for Mr Diesing, that I had read the statements of the proposed witnesses in the Judge’s copy of the court file. He informed me that he did not have any objection to the trial being heard by me.
Elements of the Offence
Section 32(4) of the CSA 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 the process to be taken in premises of which he or she is the owner, or in the management of which he or she participates.
In R v Randylle,[1] Doyle CJ, with whom the other members of a Court of 5 Judges in the Court of Criminal Appeal agreed, said that the prohibition must have been intended by Parliament to “catch a wide range of conduct”.[2]
[1] [2006] SASC 318
[2] at [5]
A distinction must be drawn between “merely preparatory acts and acts which may properly be regarded as evidence of participation in a proven manufacture.[3] Doyle CJ in Randylle emphasized that regard must be had to “all of the proven circumstances in their context”.[4] His Honour thought a step in the process of manufacture could be taken by a person who does not have all the equipment or chemicals to complete the process. There need not have been a chemical reaction produced by using consumables. There may have been different stages of the process completed on different days.
[3] Re Avory: Question of Law Reserved (No 1 of 2003) [2003] SASC 430, 87 SASR 392 at [92], R v Randylle (supra) at [26]
[4] at [42]
In Randylle, the police were present at an address in Windsor Gardens searching a house. A Mr Cosford lived there. Police found equipment in a room including iodine, laboratory equipment, electronic scales, and snap seal bags there. Not long after, Mr Randylle arrived. Police searched his car and found laboratory glassware, a gas burner, scales and chemicals. All of this equipment could be used to manufacture methylamphetamine. In another vehicle driven by a Ms McDonnell-Smith was other equipment that could be used for a similar purpose.
Swabs taken from the hands of Mr Randylle and Ms McDonnell-Smith there showed traces of amphetamine, methylamphetamine and pseudoephedrine.
A further search of the house disclosed a large quantity of iodine, and other chemical equipment, and printed material dealing with how to manufacture methylamphetamine (by a different method).
There was evidence that Mr Cosford bought the iodine the day before, that Cosford had manufactured methylamphetamine before and that he knew how to do it.
Mr Randylle said he was merely doing Ms McDonnell-Smith a favour by carrying the equipment in his car, that he suspected the equipment might have something to do with cooking methylamphetamine, but “preferred not to ask any questions”.[5]
[5] at [14]
Doyle CJ said:[6]
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 has 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.
[6] at [48] to [49]
The Evidence in this Case
There was no dispute about the prosecution case. The relevant statements of the witnesses were tendered by consent and admitted pursuant to s 34 of the Evidence Act 1929. The basic facts are quite similar to those in Randylle:
·on the morning of 23 September 2005, Police were in attendance at a house in Woodville North occupied by a Mr Kaufmann;
·a search of the house revealed the presence of a large quantity of equipment which could be used in the manufacture of methylamphetamine. For example, police found laboratory glassware, chemicals including iodine, press seal bags, electronic scales, Demazin cold and ‘flu tablets, a notebook containing notes of amounts and weights, a mortar and pestle, and other chemicals and equipment;[7]
[7]    Statement of Murphy, Exhibit P1
·at some point that morning a vehicle registered number SVR 837 arrived at the premises driven by a man named Bartlett. That vehicle was searched and a large number of packages of tablets containing pseudoephedrine were found in a toiletries bag in the car;[8]
·later in the morning Mr Diesing arrived, driving a vehicle registered number XDT 425. That vehicle was searched. A used syringe (which Mr Diesing told the police about prior to the search) was found in the left rear cargo pocket of the vehicle;
·inside the vehicle, police found an unopened packet of “Telfast” tablets, handwritten lists of laboratory equipment and other items;
·in the boot of the vehicle was a green hessian bag containing plastic containers, methylated spirits and a torch. A cardboard box contained a number of chemical containers. A large blue plastic container constituted what police thought was a mobile methylamphetamine laboratory;
·on 24 September 2005, the vehicle XDT-425 was inspected in more detail at the police compound at Ottoway. The forensic chemist Andrew Camilleri, in his statement dated 20 March 2006,[9] referred to a list of chemical glassware found in the vehicle, together with chemicals including methylated spirits, turpentine, hydrochloric acid, caustic soda or similar alkaline compound, acetone, electric hot plates, a pressure cooker, a frypan with methylamphetamine residue on it, and more packets of decongestant containing pseudoephedrine having been located.
Mr Camilleri concluded:
All of the chemicals and apparatus required to extract pseudoephedrine from pharmaceutical preparations, convert pseudoephedrine into methylamphetamine using the hypo-phosphorous acid/iodine method and purify the crude methyl amphetamine product into a powder were present.
Pseudoephedrine extraction, methylamphetamine production or methylamphetamine purification were not occurring at the time of my assessment.[10]
·at 2.52 pm on 23 September 2005, Brevet Sergeant Fechner took swabs from the fingernails and hands of Mr Diesing. These swabs were analysed by Mr Felgate at State Forensic Science. Mr Felgate’s report[11] records that methylamphetamine and pseudoephedrine were found in all four locations, that is the fingernails and hand swabs from both hands.
[8]    Exhibit P1
[9]    Exhibit P13
[10] Exhibit P13, p 4
[11] Exhibit P15
In cross examination Mr Camilleri conceded to Mr Stokes that it is possible that a person would get pseudoephedrine on his hands from handling a Telfast tablet, and also from handling methylamphetamine. He later explained that most methylamphetamine contains traces of pseudoephedrine, but the amount is very low, so it is possible but unlikely that this occurred.
The Defence Case
As I have already observed, most of the prosecution case was not in dispute.
Mr Diesing gave evidence on his own behalf. In summary, he said:
·on 23 September 2005, he was on bail on charges in New South Wales for conspiracy to manufacture methylamphetamine;
·he was sentenced for that offence on 5 September 2006. After a successful appeal, the sentence stands at 8 years and 9 months, with a non-parole period of 6 years and 5 months. He is still in custody on that sentence, having been transferred to South Australia in May 2009 to be closer to his family;
·he was arrested on the New South Wales conspiracy charge on 26 May 2004. However, for 3 or 4 weeks prior to that, he had been in custody in South Australia on an unrelated matter, since finalised. When he was arrested on the South Australian matter, he “sent a message out” asking that his “belongings” at 11 Leigh Street, Murray Bridge be “collected and put away”.[12] 11 Leigh Street, Murray Bridge was the address where the alleged conspiracy, the subject of the New South Wales charge, took place;
·he was arrested on the New South Wales charge on 26 May 2004, and remained in custody in New South Wales until July 2005;
·he obtained bail on the New South Wales charge in July 2005 and returned to South Australia. He said he had been out a number of weeks when Mr Vahe Hacopian approached him. Mr Hacopian was an acquaintance of his who has since died. Mr Hacopian told him he had some of his property which he had “come across” – he said the person who had collected it from Leigh Street had become concerned about having it in his possession. Mr Diesing said:
At that stage I really didn’t want to know about it. I had just been in one of the toughest gaols in Australia for a period of 14 months. I had just received bail. I was looking at serving a long sentence and the last thing I really wanted to do was have anything to do with the equipment. However, it was mine and he was looking after it and he really didn’t want it any longer either.
·the night of 22 September 2005, Mr Diesing was dropped at Mr Hacopian’s place. He said Mr Hacopian had already put his “property” in the boot of Mr Hacopian’s car, and had agreed to lend him the car for the purpose of getting rid of it;
·he said he was driving Mr Hacopian’s car back toward the Kilkenny area, intending to make some inquiries about storing the equipment, when he decided to drop in at Mr Kaufmann’s house at Woodville North. He said he’d had a couple of telephone calls from an ex-girlfriend, Ana Doukas, that morning. Ms Doukas was then living with Mr Kaufmann. She and Kaufmann had been arguing, and she’d been distressed. He said he had initially declined to pick her up, but when he couldn’t raise her on the telephone, he decided to call in. When he went to the door, he realized the police were there;
·he denied that he went to Kaufmann’s house with the intention of setting up a clandestine methylamphetamine laboratory there;
·he said that the night before these events, he had been using methylamphetamine at Mr Hacopian’s place. His preference is to smoke the drug, and this involved handling the substance. This evidence was clearly being put forward as an explanation for the methylamphetamine and pseudoephedrine found on his hands.
[12] T 72
Mr Stokes, Counsel for Mr Diesing, tendered, with the consent of the prosecution, a statement of Ana Sylvia Doukas, verified by declaration, dated 24 March 2010. Both counsel told me she refused to attend court. Neither counsel, it seems, wished to compel her attendance by subpoena. The statement reads in part:
Greg (Kaufmann) and I argued a lot and our relationship was not a very happy one. When Greg and I would argue I would often turn to Martin (Diesing) for friendship and support.
On the morning of 23 September 2005, I rang Martin and asked him to come around and Greg and I had been arguing …… I think this would have been mid-morning.
Shortly after I had spoken to Martin there was a knock at the door which I expected to be Martin. When we opened the door it was the police in plain clothes.
……
While the police were talking to Greg and I Martin arrived at the house to pick me up. I saw the police talking to Martin out the front of our place ….
Analysis
The evidence against Mr Diesing in this case is entirely circumstantial. The prosecution asks me to draw from that evidence the inference that when Mr Diesing arrived at the Woodville North premises that morning, he did so with the intention, in the words of Doyle CJ in Randylle
of at that place, and within a short space of time, assembling the equipment and putting the chemicals to use to produce methylamphetamine ……
and thereby took a step in the process of manufacture.
Before drawing such an inference, I must be satisfied beyond reasonable doubt that no other rational inference consistent with innocence could be drawn from the circumstances.[13]
[13] Barca v R (1975) 133 CLR 82 at p 104, Shepherd v R (1990) 170 CLR 573 at P 579 per Dawson J
I must in this case be satisfied beyond reasonable doubt that Mr Diesing’s explanation for his presence at the Woodville North house that morning, supported as it is by the statement of Ms Doukas, is untrue.
Mr Krupka, counsel for the Director of Public Prosecutions, submitted that the statement of Mr Doukas is patently incredible and should be given no weight. I fail to see how I could reject the truthfulness of a statement, verified by declaration pursuant to s 104 of the Summary Procedure Act 1921, the tender of which had been by consent. I have no way of verifying the truthfulness or otherwise of Ms Doukas’ statement. I have no reason to reject it, let alone to reject it beyond reasonable doubt.
I find that Ms Doukas’ statement supports Mr Diesing’s evidence, and that I am not satisfied beyond reasonable doubt that Mr Diesing’s explanation for his presence at the Woodville North premises that morning is untrue. Accordingly, the appropriate verdict is “Not Guilty”.
Section 42 of the Controlled Substances Act 1984 provided that if I am not satisfied that the accused is guilty of an offence against s 32, but I am satisfied of his guilt of an offence against s 31, I may bring in a verdict that he is guilty of the latter offence.
Section 31(1)(c) of the Act made it an offence to have in one’s possession any piece of equipment for use in connection with the …. Preparation of such a drug or substance (i.e. a drug of dependence or prohibited substance) for smoking, consumption or administration.
Mr Krupka submitted that this alternative charge had been proved beyond reasonable doubt. Mr Stokes conceded that point on behalf of his client.[14]
[14] T 106
Accordingly, I find Mr Diesing “Guilty” of the alternative charge of possessing equipment contrary to s 31(1)c) of the Controlled Substances Act