R v Franco
[2006] SASC 157
•29 May 2006
Supreme Court of South Australia
(Criminal: Application)
R v FRANCO
[2006] SASC 157
Judgment of The Honourable Justice Perry (ex tempore)
29 May 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Application for leave to appeal against conviction on a charge of taking part in the production of a drug of dependence dismissed.
R v FRANCO
[2006] SASC 157Criminal
PERRY J: (ex tempore) This is an application for leave to appeal against the applicant’s conviction following a trial in the District Court on a charge of taking part in the production of a drug of dependence, namely methylamphetamine, at a house which he occupied at 8 Redden Avenue, Felixstow between 9 and 16 August 2001
The Crown case depended almost entirely upon the outcome of a raid on the premises by police officers on the morning of 16 August 2001, when a number of incriminating items were found in various parts of the house, which arguably had been or were capable of being used in the production of methylamphetamine from pseudoephedrine-related products.
There were four other persons found in the house, who were tried separately.
The Crown case was essentially circumstantial.
The case against the applicant was based alternatively on the assertion that he had directly taken part in the production of methylamphetamine, or alternatively, that he had allowed his premises to be used for the production of the drug.
The applicant was unrepresented at the hearing of the application for leave to appeal, and has presented his case in person.
He seeks to raise two grounds of appeal, which I will refer to shortly. After hearing him as to those grounds, I invited Mr Petraccaro, counsel for the Director of Public Prosecutions, to prepare a written memo or letter setting out the essential nature of the case against Mr Franco, and setting out the answer which the DPP made to the two grounds which were raised, referring at the same time to the evidence relevant to determination of those two grounds.
In the result, by a lengthy letter dated 21 April 2006 from Mr Petraccaro, I was furnished with a summary of the evidentiary and legal basis upon which the DPP opposed the application for leave to appeal.
At my direction a copy of that letter was given to Mr Franco, and I then provided him with an opportunity to comment on the letter and further advance the arguments which he wished to raise.
This morning the court convened to provide him with an opportunity to do that. Relying on written notes which he had prepared, he presented an oral argument against the submissions made by the Crown.
I turn to the two grounds.
The first is framed in terms which embody a complaint that during the course of the trial, the trial judge and the prosecutor referred to the fact that some $2,300 was found in the applicant’s possession during the course of the search of his premises, and also that there was a list which could have been a list of customers found in his bedroom. The handwriting expert who was called did not attribute the handwriting in the list, at least the whole of it, to Mr Franco, but the Crown advanced this as an item of circumstantial evidence in support of its case. Mr Franco complains that repeated references to the money that was found on him and the suggestion that this was produced as a result of transactions involving sale of methylamphetamine, would have been relevant if he had been charged with sale, but it was not relevant and was potentially prejudicial, given that he was charged only with production.
However, as I pointed out to him during the course of his argument, evidence of possession of money and other circumstances suggestive of involvement in the sale of methylamphetamine, such as in this case, a number of small plastic press-seal bags which were found in his bedroom, is commonly led to provide a motive for the manufacture of the drug. It was clearly a relevant item of circumstantial evidence, and the fact that evidence of those matters was led at the trial, does not, in my view, render the ultimate verdict arguably unsafe.
Mr Franco was represented at trial by very experienced Queen’s Counsel and objection could have been taken if there was anything in the point.
As to ground 2, this relates to the fact that the police or the prosecutor mislaid, and were unable to produce at the trial, a number of boxes which were found on the kitchen table. They were described as boxes which had contained commercial proprietary preparations which incorporated pseudoephedrine, the extraction of which is a well-known step in the illicit production of methylamphetamine.
The police witness who spoke about the finding of the boxes gave evidence at first that the boxes were empty, but overnight changed that view and stated the next day that he could not say whether the boxes were empty or not.
Be that as it may, the presence of the boxes, whether they were full or empty, was clearly an item of evidence capable of adding to the circumstantial case which was mounted against Mr Franco. Indeed, the possibility that the boxes were full, if anything, assisted Mr Franco somewhat and did not prejudice him in the conduct of his defence.
He complains that the non production of the boxes robbed him of the opportunity of advancing an argument that there was no DNA or fingerprint evidence from him on the boxes. But that much said, there was much more to the Crown case in terms of the circumstantial evidence which it presented. To isolate his complaint with respect to the boxes as a factor which suggests the verdict was unsafe takes too limited a view of the matter.
An important aspect of the circumstantial case is that there were both pseudoephedrine and traces of methylamphetamine found in scrapings from Mr Franco’s fingernails.
I have looked at the matter carefully. The Crown case was a strong one.
In my view, neither of the two grounds which have been foreshadowed and which Mr Franco wishes to develop by way of appeal are reasonably arguable.
The application for leave to appeal is dismissed.
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