R v GAWELL - [2004] SASC 403

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GAWELL
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
7 December 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
TO KNOWINGLY TAKE PART IN THE MANUFACTURE OF METHYLAMPHETAMINE
Appeal against conviction – appellant, on legal advice, pleaded guilty to a charge of taking part in the manufacture of methylamphetamine – suspended sentence imposed – whether the conduct of the appellant constitutes an offence at law.
Consideration as to circumstances which will constitute the offence of knowingly taking part in the manufacture of a drug contrary to Controlled Substances Act 1984 s 32(1)(b).
Held: appellant could have been convicted on the factual basis pleaded – the circumstances of the plea of guilty and the recording of the conviction did not amount to a miscarriage of justice.
Appeal dismissed.
Controlled Substances Act 1984 (SA) ss 32, 32(1)(b), referred to.
DPP Reference No 2. of 1995 (1995) 65 SASR 508, applied.
R v BD (2001) 122 A Crim R 28; Marchione (2002) 128 A Crim R 574; R v Kouroumalous [2000] NSW CCA 453; Liberti (1991) 55 A Crim R 120; R v Parker [2002] NSW CCA 330; Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392, considered.

R v GAWELL
[2004] SASC 403
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ

DUGGAN J. This is an appeal against conviction pursuant to leave granted by a single judge. The single judge also granted an extension of time within which to appeal.
The appellant pleaded guilty before a judge of the District Court to a charge of taking part in the manufacture of methylamphetamine. The information alleged that on 18 August 2000 at Woodville Gardens he knowingly took part in the manufacture of methylamphetamine, a drug of dependence contrary to s 32(1)(b) of the Controlled Substances Act 1984.
The appellant was sentenced on 6 May 2002. The court imposed a head sentence of three years and set a non-parole period of two years and six calendar months. The sentence was suspended upon the appellant entering into a bond in his own recognisance in the sum of $1,000 to be of good behaviour for two years.
In an affidavit dated 3 June 2004 the appellant stated that he pleaded guilty to the offence on legal advice. He said that subsequently he became aware of the decision of this court in Re Avory; Question of Law Reserved(No. 1 of 2003) (2003) 87 SASR 392 which arose out of a case stated to the Full Court by a judge of the District Court. The judgment of the court was delivered after the appellant had been sentenced. According to the argument presented on the hearing of this appeal, the effect of the decision is that the conduct in which the appellant was involved did not constitute an offence at law.
As this is an appeal against conviction following a plea of guilty it is appropriate to have regard to the comments made by Kirby P in Liberti (1991) 55 A Crim R 120 at 121:
“This Court has power to set aside a conviction recorded following a plea of guilty: see Forde [1923] 2 KB 400 at 403; Gower v Ross [1959] SASR 278; Stewart [1960] VR 106; Foley (1963) 80 WN (NSW) 726. From these and other cases it is clear that a court will entertain an appeal against such a conviction, notwithstanding a guilty plea, if it appears:
(a) that the appellant did not appreciate the nature of the charges or did not intend to admit that he was guilty of them; or
(b) that the appellant, upon the admitted facts, could not in law have been convicted of the offence charged: see esp Caruso (1988) 49 SASR 465 at 489; 37 A Crim R 1 at 26.
For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81.”
See also R v Kouroumalous [2000] NSW CCA 453; R v Parker [2002] NSW CCA 330.
The charge against the appellant was laid in the following circumstances. According to the depositions filed in the District Court, police officers searched a unit at 22 Liberty Grove, Woodville Gardens on 18 August 2000. At the time of the search the appellant lived in the unit with his girlfriend Nicole Jesson. When police knocked on the door of the unit Ms Jesson asked who was there and Detective Senior Constable Wilson told her that it was the police. Movement was then heard from within the unit. After a few minutes Ms Jesson opened the front door. The appellant was not present in the unit at the time.
During the ensuing search of the unit the police officers located various items which were hidden in pot plants, pockets of coats and ornaments. The items located were materials used to make methylamphetamine. They included glassware, the drug “Sudafed”, sodium hydroxide and methylated spirits. They also found a hose in a dishwasher and a condenser which could be fitted to the hose. According to the prosecution depositions, a hose and condenser are part of the equipment commonly used to manufacture methylamphetamine.
While the police officers were searching the unit the appellant arrived in his vehicle. The police officers searched the vehicle and found a pressure cooker, plates which contained traces of methylamphetamine, glass dishes and a bag containing 10 grams of pseudoephedrine. The bag was wrapped in black electrical tape and was located on the driver’s seat of the car. According to the police officers, all the chemicals and equipment necessary to manufacture methylamphetamine were located during the search of the unit and the appellant’s vehicle. Dr Pigou, a forensic scientist, stated in his deposition that a common method currently used to produce methylamphetamine involves the extraction of pseudoephedrine from pharmaceutical tablets. It would appear that the pseudoephedrine found in the appellant’s car had been obtained as a result of an extraction process of this nature.
The focus of the prosecution case as presented in the depositions was on what took place on the day of the search including the finding of the chemicals and apparatus in the appellant’s unit and vehicle. The defence put forward a different basis. At the commencement of his submissions for leniency Mr Vadasz, for the appellant, told the judge (AB 36):
“My client has pleaded guilty to taking part in the manufacture of methylamphetamine on the basis that he was not, at any stage, directly involved in its manufacture but he stored certain items used by others in the manufacture of methylamphetamine or, from time to time, would go out and buy certain items such as chemical flasks etc which were then used, in turn, by others.
At the time, Mr Gawel had a serious methylamphetamine or amphetamine habit. He and his girlfriend both had a serious habit. They lived entirely within the culture of people who were ‘sewer rats’ as the phrase is known.
The premises in question at Woodville were premises owned by his mother. His mother died in February 2000. Mr Gawel inherited those premises. He moved in there in March. People knew that he had a secure, established residence and, therefore, his place was open to that kind of storage activity.”
Mr Vadasz said that his client denied setting up a laboratory to manufacture methylamphetamine and that the appellant was unaware of all the steps involved in such manufacture. Nothing was said at this stage of the submissions as to the appellant’s knowledge of the items which were found in his car.
At this point, the prosecutor put to the sentencing judge that these submissions were inconsistent with the plea of guilty. He said the prosecution case was that the appellant was directly involved in the manufacture of methylamphetamine and he pointed out that all the necessary chemicals and apparatus for manufacturing the drug were in the unit and the appellant’s car. He submitted to the judge that the appellant was manufacturing methylamphetamine on a regular basis and that the equipment and chemicals in the appellant’s vehicle were being brought to the appellant’s unit so that the drug could be prepared on that day.
Mr Vadasz then called the appellant to give evidence. The appellant said that from time to time his acquaintances brought items which he thought could be used to make amphetamines to his unit. He agreed to look after these items for them. He said that before he occupied the unit some people had left chemicals which might be used for the production of methylamphetamine in the unit.
The appellant then said that there had been a burglary at his unit and some of his property had been taken. He said that on the day of the search he received a telephone call telling him where he could find property which had been taken from the unit. The property included a guitar case, an esky and a black bag. He went and collected these items from a house at Hillcrest and then returned to the unit at the time the police officers were searching it. He said that he had no knowledge of a flask which was found in one of his bags in the vehicle. He also said that the parcel which contained pseudoephedrine and which was found on the front passenger seat of the vehicle may have fallen from one of the bags, but he had no knowledge of its contents.
While he denied that the hose found in the unit was used for the manufacture of methylamphetamine, he agreed in answer to a question by the judge that he knew some of the equipment in his house was going to be used to make methylamphetamine because he was given that drug for supplying equipment to those who were making it. He denied using the condenser which was found in his unit. He was also asked about buying glassware for the persons he was dealing with (AB 81):
“QYou knew, in buying that glassware or getting that glassware, you were getting it for the purposes of manufacturing methylamphetamine, is that right?
AYes.”
The sentencing judge made no formal findings after this evidence had been given. The matter was adjourned for approximately six weeks to enable a psychiatric report to be obtained by the defence. There was a considerable delay in obtaining the report and the matter was not called on for final submissions until 7 March 2002.
At the resumed hearing the sentencing judge asked Mr Vadasz for his submissions as to the basis upon which the appellant should be sentenced. Mr Vadasz replied that the appellant obtained equipment which he gave to his acquaintances and they would give him some of the drug which they produced. He would then use the drug for his own purposes. The appellant had no idea that his acquaintances were going to sell any of the drug which was manufactured. The judge said that he did not accept the appellant’s assertion that his acquaintances were not going to sell the drug, but he said he was prepared to sentence the appellant on the basis that he himself was not involved in any commercial enterprise. The prosecutor who appeared on this occasion stated that there was no objection to the appellant being sentenced on this basis.
No findings were made as to the appellant’s assertion that he was unaware of the chemicals and equipment which were in his vehicle on the date of the alleged offence.
In his sentencing remarks the judge said:
“I accept that you were part of the process of taking part in the manufacture of methylamphetamine in that you provided equipment for others to produce that drug by way of a home factory and for that you were going to get methylamphetamine for your own use, you at that stage being addicted to the drug.
I heard evidence from you and, as a result of that evidence, it was put to me that you did not think that any of the methylamphetamine that was produced was going to be sold. I reject that, as I rejected it at the time. In my view, you clearly knew that others were going to sell the methylamphetamine that was going to be produced, and you helped in that production.
However, I sentence you on the basis that you were not going to receive any of the profits and that your benefit in the matter was in being provided with some of that drug for your own use.
. . . . . .
I am told that the material that was found in your premises was capable of creating a laboratory which could produce a substantial amount of methylamphetamine. Indeed, there was an amount of methylamphetamine in its completed form found at your premises.
You must have known the others involved in this matter were going to at least use if for commercial purposes although I accept that you, yourself helped in its production only for the purposes of you, yourself being provided with the drug to feed your addiction.”
I have said that, in the submission of the appellant, the charge could not be established on the admitted facts. The appellant was charged with knowingly taking part in the manufacture of methylamphetamine contrary to s 32(1) of the Controlled Substances Act. In so far as it is relevant s 32 provides as follows:
“32.(1) A person must not knowingly –
(a)manufacture or produce a drug of dependence or a prohibited substance; or
(b)take part in the manufacture or production of such a drug or substance; or
(c)sell, supply or administer such a drug or substance to another person; or
(d)take part in the sale, supply or administration of such a drug or substance to another person; or
(e)have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.
. . . . . .
(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 that process to be taken in premises of which he or she is the owner, or in the management of which he or she participates.” (emphasis added)
The elements of an offence contrary to s 32(1)(b) of the Act were considered by the Court of Criminal Appeal in Re Avory; Question of Law Reserved (No. 1 of 2003), a case upon which the appellant placed particular reliance. The accused in that case was charged with one count of taking part in the manufacture of methylamphetamine. According to the prosecution case a car which he was driving when he was apprehended by the police, contained various flasks, cylinders and jars. One of the jars contained hypophosphorous acid. Other jars contained nicotinamide. Iodine crystals were also found in the vehicle.
The trial judge reserved two questions of law for the consideration of the Court of Criminal Appeal prior to the commencement of the trial. The prosecution intended to call evidence to the effect that a common method of manufacturing methylamphetamine involved the use of hypophosphorous acid and iodine crystals to convert pseudoephedrine into methylamphetamine. The evidence would also disclose that nicotinamide is sometimes used as a cutting agent in methylamphetamine preparations. There was no pseudoephedrine in the vehicle and not all of the ingredients necessary to manufacture methylamphetamine were found in the vehicle. There was no evidence that the accused had taken part in the completed manufacture of any methylamphetamine or that what was found in the vehicle was part of any larger, current or future operation for the manufacture of methylamphetamine.
The Court of Criminal Appeal reviewed a series of New South Wales cases which draw a distinction between preparatory acts on the one hand and steps which can be said to be taken in the process of the manufacture of a particular drug on the other. It is appropriate to refer to some of those cases.
In R v BD (2001) 122 A Crim R 28 the accused was stopped whilst driving a vehicle which contained chemistry glassware and a large quantity of Sudafed tablets together with some other chemicals. Some of the tablets were loose and others were in blister pads.
The New South Wales Court of Criminal Appeal agreed with the view of the trial judge summarised in the judgment of Bell J at [18]:
“In Judge Graham’s view the acquisition and transportation of the chemicals amounted to no more than the respondent equipping himself with materials necessary to undertake the process of manufacture at a future time. In similar vein the removal of the Sudafed tablets from their blister packs could not be described as anything more than preparation for a future process of manufacture.”
Bell J added at [26]:
“The Crown submitted that Judge Graham erred in that he construed the terms of s 6 of the Act restrictively. I do not agree. I consider there is force to his Honour’s observation:
‘The Statute does not refer to acts ‘leading to, preparatory to, or with a view to’ the process of manufacture. The words of the statute themselves, in s 6, refer to taking or participating in any step or in causing any step to be taken in the process of that manufacture. (emphasis supplied).’ (ROS pp 7/8).”
In Marchione (2002) 128 A Crim R 574 the main source of the prosecution case against the appellant was derived from telephone intercepts. The trial judge summarised the essence of the prosecution case in a passage set out in the appeal judgment at [26]:
“I have quoted that material at some length simply because it seems to me that the gravamen of the Crown case against the accused looking at the evidence that is reasonably available to it, and truly relevant, is that inferences may be drawn from those conversations in the context of earlier conversations which are recorded, that the accused was endeavouring and had in fact obtained raw material to assist Mr Tesic in the course of undertaking a process that would possibly lead to the manufacture of methylamphetamine at a future time.
To my mind the evidence was capable of a number of constructions. Firstly, the process to which I have just referred may have been a process of experimentation out of which there may have been some possible use in the future for the purposes of the production of methylamphetamine.
Alternatively, the conversations are capable of establishing, at least by inference, if not directly, that the accused and Mr Tesic were involved in discussions about a trial and error process directly included within a process of manufacture for the purposes of producing at the end of the process methylamphetamine.”
In ruling against an application for a permanent stay of the prosecution the trial judge said in a passage set out in the appeal judgment at [40]:
“But in my view if the evidence is capable of establishing that the accused provided Sudafed or some other drug to another person, in the knowledge that there was a process in course, either by way of experimentation or trial and error, with the intention that the material he was supplying would or could in due course lead to the production of methylamphetamine, then there is a prima facie case for the accused to answer. . . .
In my view what the Crown would need to establish is knowledge on the part of the accused of a contemporaneous process, which was part of a process of manufacture, and for that the Crown would have to establish that the accused had the relevant intention that he was providing the Sudafed or other related drug for the purposes of that process of manufacture.”

According to the prosecution case the man Tesic was engaged in an ongoing process of manufacturing methylamphetamine. The Court of Criminal Appeal held that the trial judge was correct in distinguishing R v BD on the basis that the evidence was capable of establishing that the appellant was supplying Sudafed knowing that Tesic and/or his associates were engaged in a process of manufacture intended to produce methylamphetamine [41].
In R v Kouroumalos [2000] NSW CCA 453 the appellant assisted in running errands for a man who was involved in an organisation which manufactured methylamphetamine. He helped in “popping” a large quantity of Sudafed tablets from their foil containers; he collected some material which is commonly used in the manufacture of methylamphetamine; and he kept vacuum flasks and other utensils which are also used in such manufacture in his home. He also tested the sugar content of some methylamphetamine supplied to him and reported back the findings.
On appeal Wood CJ at CL said:
“[34] …. It was not the Crown case that the applicant participated directly in any ‘cook’.
[35] Its case in relation to the first count was that, being aware that the Sudafed tablets he popped, and the other items he fetched, were required for the manufacture of the prohibited drugs, he ‘knowingly participated in their manufacture’ by carrying out those activities. They were necessary steps in the operation, as was the provision of his premises as a place to pop the Sudafed tablets from which the required pseudoephedrine was recovered, and to store the chemical flasks needed for a cook. It was in that sense that he knowingly participated in the manufacture of the drugs. That was sufficient as a matter of law: see S6 Drug Misuse and Trafficking Act 1985: Thomas (1993) 67 A Crim R 308 at 310.”
These authorities draw a distinction between the mere possession (whether as courier or otherwise) of material which might be used in the manufacture of methylamphetamine and those cases in which there is evidence of a process of manufacture coupled with relevant actions and knowledge on the part of the accused. This is illustrated by the answers given to the questions asked of the Court of Criminal Appeal in Re Avory; Question of Law Reserved(No. 1 of 2003) (2003) 87 SASR at [100]:
“Do the words ‘take part in the manufacture’ in s 32(1)(b) of the Controlled Substances Act 1984, include:

(1) acts preparatory to the manufacture of a drug of dependence or a prohibited substance where those acts are done for the purpose of manufacture, and are necessary for such manufacture, but where no subsequent steps, in the process of manufacture occur?

No, if by the words ‘acts preparatory to the manufacture of a drug of dependence or a prohibited substance’ it is intended to refer to acts taking place before the process of manufacture has commenced, in the sense referred to in the above reasons.

And

(2) the transportation of all, or some, of the materials, required for the manufacture where they are knowingly intended for manufacture?

   Yes, so long as the evidence establishes that:

(a)     a process of manufacture has been established; and

(b)     that by the transportation of the materials the accused intends to take part in, contribute to or assist in that process.”

The distinction is also apparent from the following remarks of Besanko J in that case at [105]:
“In my opinion, the critical question will be whether the accused’s acts are part of, or a step in, a systematic or planned or pre-arranged series of actions or operations which involve the making of a substance or material which is different from the substances or materials out of which it is made. Clearly, purchasing the substance or materials out of which the relevant drug is to be made and/or transporting the same may be acts which satisfy that description if they are part of a systematic or planned or pre-arranged series of actions or operations of the relevant type. On the other hand, merely purchasing and having possession of some of the substances or materials out of which the relevant drug may be made will be insufficient unless it is clear that such acts are part of a systematic or planned or pre-arranged series of actions or operations. Obviously, what side of the line a particular factual situation falls will depend on the precise evidence which is put forward including the inferences which can be drawn from the accused’s conduct.”
In the present case it was conceded on behalf of the appellant that he knew a group of people who were engaged in the manufacture of methylamphetamine on an ongoing basis. He was aware that they were so engaged. The appellant was sufficiently close to the activities of these persons to allow them to use his own unit for storing their equipment. He became involved in assisting them in other ways such as in acquiring equipment and chemicals. His purpose was to maintain his own supply of methylamphetamine by obtaining quantities of the drug as they manufactured it. In my view, his knowledge of their drug manufacturing activities and the ongoing nature of his assistance to them in this respect satisfied the requirements of being knowingly involved in the continuing process of manufacture of the drug.
The case is distinguishable from those cases in which an accused person is found in possession of drugs and equipment which might be used to manufacture methylamphetamine, but in which the evidence goes no further.
As I have pointed out, the prosecution eventually agreed that the appellant should be sentenced on this basis instead of specific involvement in a manufacturing operation on the day of the search. The appellant gave a highly unlikely version of his possession of the equipment found in his car on the day of the search. However, the sentencing judge made no findings in relation to this version and sentenced on the agreed facts which I have summarised above.
This basis acknowledged a continuous drug manufacturing operation in which he knowingly participated; continuous in the sense that the persons he assisted were regularly involved in manufacturing the drug and he assisted by allowing them to store their equipment in his unit and, from time to time, obtain the necessary chemicals and equipment.
In short, there was a sufficient nexus between the appellant and an ongoing process of manufacture to justify a finding that the appellant was taking part in a step in the process of the manufacture of methylamphetamine. (cf. DPP Reference No. 2 of 1995 (1995) 65 SASR 508 at 513).
It follows that the appellant could have been convicted on the factual basis put forward on his behalf. The circumstances of the plea of guilty and the recording of a conviction do not disclose a miscarriage of justice and, in my view, the appeal against conviction should be dismissed.
BLEBY J. I agree that the appeal should be dismissed. I agree with the reasons of Duggan J and have nothing to add to those reasons.
ANDERSON J. I also agree that the appeal should be dismissed for the reasons given by Duggan J.