R v Franco

[2009] SADC 72

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v FRANCO

[2009] SADC 72

Reasons for Ruling of His Honour Judge Beazley

3 July 2009

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE

Accused charged with two counts of taking part in the manufacture of methylamphetamine at certain premises at Paralowie respectively on 20 July 2005 and 11 August 2005 - application by accused to exclude evidence of discovery of precursor drugs and other items during a search by police at other premises at Windsor Gardens on 11 August 2005 - accused submitted that the evidence located at Windsor Gardens was not relevant, but if found to be relevant, ought to be excluded on the basis that it was more prejudicial than probative - held: evidence clearly admissible and ought not be excluded in the proper exercise of the discretion.

R v Long and McDonnell [2002] SASC 426; R v Palaga (2001) 80 SASR 19; R v Mayger [2009] SASC 143, referred to.

R v FRANCO
[2009] SADC 72

VOIR DIRE RULING

Introduction

1. The accused Vittorio Franco, has been arraigned upon an Information dated 6 May 2008 on two counts of taking part in the manufacture of methylamphetamine, the first count allegedly occurring on 20 July 2005 and the second count allegedly occurring on 11 August 2005.  The premises at which the respective counts of methylamphetamine took place are those at 41B Tarqui Drive, Paralowie. 

2. The accused, by Rule 9 application dated 15 May 2009, sought orders excluding various pieces of evidence referred to in the substantial number of declarations provided by the DPP.  Almost all of the matters complained of by the accused were resolved without the need for a formal ruling.

3. Relevantly the accused sought orders that the prosecution not be permitted to lead evidence generally of observations made by police witnesses of the attendance by the accused at residential premises at 6 Seymour Avenue, Windsor Gardens; and in particular, of observations made by the police during a search of those premises on the day of the second count, namely 11 August 2005.  Having heard argument on 2 June 2009, I concluded that the evidence sought to be led by the prosecution both as to their surveillance and the search on 11 August 2005, was admissible and ought not be excluded in the proper exercise of my discretion.  I delivered brief reasons for those conclusions.  As to the surveillance, see R v Mayger [2009] SASC 143.

4. This day I have been requested by the accused to provide extended reasons for my ruling as to the admissibility of the evidence of the police search at 6 Seymour Avenue, Windsor Gardens.  As I am shortly to commence the July Sittings of the Court in Mount Gambier, I have not had the time available to prepare other than the brief reasons which follow.

   Background

5. The prosecution case against the accused is partly direct and partly circumstantial in nature.

6. In respect of count 1, the alleged manufacture on 20 July 2005, the Crown case is based upon the direct evidence of an accomplice, Golda Reading, who deposed in her declarations, to observing the accused set up and proceed to “cook” methylamphetamine at her house at 41B Tarqui Drive, Paralowie (the Paralowie premises) on that day.  It is also based upon the evidence of police surveillance identifying the accused as being present at the Paralowie premises on that day and Ms Reading leaving to collect chemicals for use in the manufacture.  As to count 2, the Crown case is partly based upon again the direct evidence of the accomplice, Golda Reading, observing the accused “cooking” the methylamphetamine at her house at the Paralowie premises on 11 August 2005, and the police surveillance of the accused on that day.  However, in respect of count 2, there is direct evidence of the police witnesses that the accused was arrested walking from those premises with a bottle of methylamphetamine base oil in his possession at a time when the clandestine drug laboratory was still operating at those premises.

   The disputed evidence

7. The surveillance evidence of the police on 11 August 2005 included observations of police officers of the attendance of the accused at 6 Seymour Avenue, Windsor Gardens immediately prior to him attending at the Paralowie premises.  The combined evidence of the police surveillance and the accomplice, Ms Reading, is that the accused was observed to carry a brown paper bag from the premises at Seymour Avenue, Windsor Gardens, drive direct to the Paralowie premises; carry a brown paper bag directly into the Paralowie premises at which time the accomplice, Ms Reading, observed a white crystalline-type material in that brown paper bag.

8. At approximately the same time as the accused was arrested leaving the Paralowie premises, the police entered and searched the premises at 6 Seymour Avenue, Windsor Gardens.  That search disclosed, inter alia, some forty four blister packs of pseudoephedrine-based tablets, pseudoephedrine in a rock form and iodine buried in the garden.  In particular Zyrtec, a form of pseudoephedrine-based tablets was located amongst those blister packs.  A forensic scientist, Dr Cox, would give evidence that Zyrtec must have been used in the conversion process at the Paralowie premises on 11 August 2005.  The sheer volume of such material at the premises at 6 Seymour Avenue, Windsor Gardens, was such as to lead an inference that the occupier of those premises at least had a large quantity of precursors for the manufacture of methylamphetamine and that the accused had attended that day to access those precursors.  The Windsor Gardens premises were occupied by the accused’s sister providing an obvious explanation for his attendance on that day. 

   The prosecution submissions

9. The prosecution submitted that the evidence of the police search ought be admitted on the basis that the jury may well infer from it that the accused attended at those premises on 11 August 2005 before going direct to the Paralowie premises to access pseudoephedrine which had already been extracted from tablets.  One of the issues at trial is the time that it may take for the extraction of pseudoephedrine and the conversion of the extracted pseudoephedrine into methylamphetamine-based oil.  The jury may well consider that if the accused had accessed pseudoephedrine in an extracted form it could explain the shorter time for the conversion process at the Paralowie premises.  The prosecution sought to lead the evidence of the search at 6 Seymour Avenue, Windsor Gardens, as part of a circumstantial case firstly to show that precursors for methylamphetamine manufacture such as the quantities of pseudoephedrine and Zyrtec were located at those premises and that he was a regular attendee there.  Further that when coupled with the temporal connection that evidence leads to an inference that the jury may draw that the accused knew what ingredients he needed to “cook” on that day, and was there at Seymour Avenue to obtain those ingredients.  It also rebuts the suggestion that he was present at the Paralowie premises for innocent purposes.

   Defence submissions

10. Mr Niarchos, counsel for the accused, submitted that the evidence of what was located at the Windsor Gardens premises, was irrelevant.  He submitted in the alternative inferentially, that what might appear to be a drug warehouse occupied by the accused’s sister, is extremely prejudicial and outweighs its probative value.

    Discussion

11. In my opinion, the evidence sought to be led is clearly admissible.  It is evidence which, if accepted by the jury, leads to the inference that the accused attended that morning to source precursors before immediately travelling to the Paralowie premises where, undoubtedly, a methylamphetamine laboratory set up was discovered.  Such evidence could be highly probative.  In particular, it may provide an explanation as to why the “cook” on 11 August 2005 took some 2½ hours rather than a longer time.  See R v Long and McDonnell [2002] SASC 426 and R v Palaga (2001) 80 SASR 19.

12. There is no doubt that I have a discretion to exclude that evidence where its prejudicial effect outweighs its probative value.  In this particular case, there is a risk of prejudice if the jury were to engage in any impermissible reasoning.  In particular, if the jury were to reason that the evidence of the discoveries at Seymour Avenue disclosed that the accused’s sister was involved in the manufacture of methylamphetamine, then the accused could be condemned by his sister’s conduct whatever the jury found had that conduct to have been.  In my opinion, any such risk of prejudice would be overcome by very strong direction about the way in which that evidence could be used and that it should not be used for any such impermissible reasoning.  Further, the mere fact that it is prejudicial, when its prejudicial nature arises out of the very reason as to why it is admissible, that is that by inference it was a place to source precursors for the manufacturing of methylamphetamine is not a reason in itself for excluding it.

    Conclusion

13. In my opinion, the evidence does have significant probative value as part of the circumstantial prosecution case.  The availability of precursors at 6 Seymour Avenue when coupled with the evidence generally as to the brown paper bag taken from those premises prior to the accused driving directly to the Paralowie premises does have that significant probative value.  It is directly relevant to an issue namely as to whether part of the extraction process may have occurred prior to the conversion process being undertaken at Paralowie and therefore explaining the time involved in the manufacturing process on 11 August 2005.

14. Although the evidence sought to be excluded does have the prejudicial aspects to which I have referred, those prejudicial aspects can be overcome by proper directions to the jury  For these reasons, the evidence ought not be excluded in the proper exercise of my discretion.