R v Goodliffe - [2004] SADC 184

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v GOODLIFFE
Reasons for Ruling of His Honour Judge Millsteed
16 December 2004
CRIMINAL LAW
Disputed facts hearing – defendant charged with taking part in the manufacture of methylamphetamine – plea of guilty – amphetamine ‘factory’ set up in granny flat in house premises – stolen property – whether commercial element to production proved beyond reasonable doubt – defence of personal consumption and social supply.
HELD: Commerciality not proven beyond reasonable doubt – defendant manufactured methylamphetamine for personal consumption and social supply.
Controlled Substances Act 1984, referred to.
Anderson v R (1993) 177 CLR 520; The Queen v Firman (1989) 52 SASR 391, considered.

R v GOODLIFFE
[2004] SADC 184
Introduction

Michael George Goodliffe has pleaded guilty to taking part in the manufacture of methylamphetamine contrary to s 32(1)(b) of the Controlled Substances Act 1984. The offence was committed on 6 February 2004 at Ingle Farm.
The prosecution contends that the offence was committed with a commercial motive. The allegation is denied by Mr Goodliffe. He maintains that he intended to manufacture methylamphetamine for the purposes of personal consumption and social supply to friends. Commercial intent is an aggravating factor which the prosecution must prove beyond a reasonable doubt: Anderson v R (1993) 177 CLR 520.
I conducted a disputed facts hearing to determine this issue. On the hearing all of the depositions were before me. Oral evidence was given by Dr Matthew Cox, a forensic scientist, for the prosecution. Mr Goodliffe also gave evidence. His evidence is the only material before me which is in dispute.
Prosecution Case
At 3.09pm on 6 February 2004, the police communications section received a telephone call from an anonymous female. The caller stated that a clandestine amphetamine laboratory was situated at 14 Coondoo Ave Ingle Farm.
Mr Goodliffe’s sister and her partner resided at 14 Coondoo Ave. Mr Goodliffe lived in a “granny flat” at the rear of the premises. He had been living there for about three weeks. He previously resided with his mother.
At about 4pm, police attended 14 Coondoo Avenue. Mr Goodliffe was at home. The police searched the flat and found a crude methylamphetamine laboratory. The set-up indicated a method of manufacture that involved processing pseudoephedrine, iodine and hypophosphorous acid. No completed product was located. However the process of manufacture had commenced with the extraction of pseudoephedrine from pharmaceutical tablets. All of the laboratory equipment and chemicals required to produce methylamphetamine using the abovementioned method were located in Mr Goodliffe’s flat.
The police found in two containers a total of 49.5g of pseudoephedrine hydrochloride powder consistent with extracted pseudoephedrine. Dr Cox’s report of 20 August 2004 states:
“Theoretically this pseudoephedrine hydrochloride could be converted to methylamphetamine with 100% yield, but this is highly unlikely. A typical methylamphetamine ‘cook’ may result in the manufacture of methylamphetamine in a yield of approximately 50%, but this may vary depending on a number of factors, including, the skill of the ‘cook’, the purity of the chemicals used and the exact reaction technique. Given a reaction yield of 50% then the amount of methylamphetamine hydrochloride produced from 49.5 of pseudoephedrine hydrochloride would be approximately 22g.”
Dr Cox gave evidence to the same effect on the disputed facts hearing.
The police also located empty packets of various pharmaceutical products. Dr Cox’s report discloses that the total amount of pseudoephedrine that could have been extracted from the tablets was 106 grams. If the 49.5 grams of pseudoephedrine had been derived from the packets of pharmaceutical tablets then a further 57.3 grams of pseudoephedrine had been available for conversion into methylamphetamine. I shall refer to the 57.3 grams as the “missing pseudoephedrine”. Given a reaction yield of 50% this amount of pseudoephedrine could produce approximately 28.5 grams of methylamphetamine.
The statement of Detective Martschink, an experienced member of the Drug and Organised Crime Unit, disclosed the following facts:
·The purity of amphetamine sold at the user street level is generally between 2% - 15 % but a realistic average of purity at street level is about 4%.
·The price when amphetamine is sold is generally discounted, as the quantity grows. One gram can be sold for between $50 to $60. One ounce (28 grams) can attract a price of $800 to $1,200.
On the prosecution case, at 10% purity, the 22grams of methylamphetamine that could have been produced from the powder found in the two containers had a potential value of $11,000 if sold at $50 per gram. At 10% purity the 28.5 grams of methylamphetamine derived from the missing pseudoephedrine had a potential value of $14,250 if sold at $50 per gram.
In addition, the police found a set of digital scales, a quantity of plastic press seal bags and a 500g packet labelled ‘Glucodin’. The packet, which was located inside a wardrobe, contained 150 grams of glucose. The statements before me establish that glucose is a suitable agent for “cutting” methylamphetaine. The police also located a security camera fitted to the roof of Mr Goodliffe’s flat. The camera monitored the approach to his flat from the driveway down the side of his sister’s house. It was connected to a large television inside the flat.
A number of items of stolen property were found. They comprised a mobile phone (reported stolen from a Semaphore address on 15 November 2003), a digital camera and a medal (reported stolen from an address at Blackwood on 2 January 2004), a digital camera and a gold ring (reported stolen from an address at Ingle Farm on 3 January 2004) and a computer scanner (reported stolen from premises at Craigmore on 2 February 2004). The prosecution contended that these items were consistent with the accused selling drugs in exchange for stolen goods.
During the search Detective White inspected Mr Goodliffe’s mobile phone. The following message was recorded on the phone:
“I’m heading to Melbourne 4 the nite 2 set up in (sic) leaving at 6 so if u got any gear and want to cum 4 a cruse and triple ur money will be gone 2 days at the most. Over and back. U can meet my family let me no. It’s all good we would clean up.”
The message was left on Mr Goodliffe’s phone at 2.39pm on 6 February 2004. In other words it was left on his phone approximately half an hour before the police received the anonymous call.
On the disputed facts hearing I raised with counsel the question of whether the message was admissible. Mr Cocchiaro, counsel for Mr Goodliffe, was uncertain whether it was admissible.
In my opinion, the message is admissible pursuant to the principles expressed in The Queen v Firman (1989) 52 SASR 391.
In Firman the accused was charged with possessing drugs for sale. Evidence was adduced that while the accused’s premises were being searched several phone calls were received by police at the house. The calls involved the callers making inquiries for the purchase of drugs, often asking for the accused by name. The Court of Criminal Appeal rejected the appellant’s argument that the calls amounted to hearsay. King CJ said (392):
“The content of the telephone calls was relevant as tending to prove the existence of such a business (i.e. selling drugs) and the appellant’s involvement in it, because it consisted of inquiries for drugs apparently made by potential customers. A necessary incident of a business of selling a commodity is the receipt of inquiries and offers to buy from customers. The making of such inquiries and offers by a number of people tends to prove the carrying on of a business. If such inquiries or offers are directed to a particular premises they tend to prove the carrying on of the business at those premises. If they are directed to a particular person, they tend to prove the carrying on of the business by that person. The purpose for which the evidence was tendered and admitted was therefore not to prove the truth of anything stated by the telephone callers but to prove the fact of the making of the inquiries or offers.”
In the present case, the telephone message is capable of being construed as an inquiry made by Thrash aimed at determining if Mr Goodliffe was interested in selling drugs interstate. The making of such a call is consistent with Mr Goodliffe carrying on a drug selling business.
Summary of Prosecution’s Key Points
The prosecution submitted that the following factors were clear indicators that the accused’s operation was a commercial one:
·The operation’s potential profits
·The money that Mr Goodliffe must have invested in the operation.
·The presence of a cutting agent in the flat.
·The finding of stolen property – consistent with drugs being swapped for such items.
·The message from Thrash.
Mr Goodliffe’s Case
Mr Goodliffe gave evidence that he set up the laboratory in his flat for the purpose of manufacturing methylamphetamine for personal consumption and supply to friends. He denied that he committed the offence for financial gain.
Mr Goodliffe deposed that at the time of the offence he was unemployed. He had been unemployed for several years. He said that he had a serious addiction to amphetamines and that he had been using the drug for many years. He purchased the substance from drug dealers. He said that he used about one gram of amphetamine per day and used syringes to administer the drug. I accept that he used amphetamines. The police, in fact, found new syringes inside his flat.
He testified that during late 2002 and 2003, he financed his habit with the proceeds from the sale of his home at Burton. He sold his home in September 2002. He obtained approximately $75,000 from the sale. He said that by Christmas 2003 he was left with only a few thousand dollars in his bank account. Due to his parlous financial state and his drug addiction he decided to manufacture amphetamine for himself.
Mr Goodliffe said that he first attempted to manufacture methylamphetamine in late January about one week after he moved into the flat. The attempt was a failure. He tried again and succeeded in making about 5grams of methylamphetamine. He said that he used about 20 boxes of pharmaceutical tablets to make the drug. Some of the boxes of tablets were supplied by friends. They were drug addicts. He said that he made methylamphetamine for them. They supplied him with pseudoephedrine based products for that purpose. I find that these two efforts at making methylamphetamine serve to explain the “missing pseudoephedrine”.
Mr Goodliffe acknowledged that he manufactured the 49.5 grams of pseudoephedrine located by police on 6 February. He said that he hoped to convert the substance into 15 to 18 grams of pure methylamphetamine. This estimated reaction yield (approximately 30%) is consistent with the evidence given by Dr Cox. The quantity of pure methylamphetamine that Mr Goodliffe expected to make was worth between $7,500-$9000 if sold in quantities of one gram (10% purity) at $50.
No Great Expense
Mr Goodliffe disputed the prosecution’s contention that the creation of the laboratory was a costly exercise.
Mr Goodliffe said that he borrowed all of the equipment from a friend. He named his friend. His friend also gave him small and inexpensive quantities of iodine and hypophosphorous acid. Mr Goodliffe deposed that his friend did not require the chemicals and equipment because he was serving a sentence of imprisonment. He collected the items from his friend’s home. They were given to him by his friend’s wife.
Mr Goodliffe agreed that he bought some of the chemicals that were used in the manufacturing process (for example, methylated spirits, iodine and caustic soda). He said they did not cost much. He also acknowledged that he bought the security camera. He said that he acquired the camera because he was concerned that thieves might invade his flat, steal his drugs and equipment and subject him to violence. I believe that his primary motive for buying the camera was to keep a lookout for the police. Be that as it may, he said that he purchased the camera, second hand, for about $75 - $80. On his account the total cost of setting up the operation, including the purchase of pseudoephedrine based products, was about $400.
I do not regard his evidence in relation to the circumstances in which he acquired the equipment or his account of the costs associated with setting up the operation as implausible. It is true that he was unemployed at the time of these events but he still had some money left over from the sale of his home.
The Glucose
Mr Goodliffe denied that he used the glucose found in the flat to cut methylamphetamine. He maintained that he injected pure amphetamine in quantities of .3 of a gram. He said that he also supplied his friends with pure methamphetamine. He suggested that there was no point in cutting the substance because he was not interested in profiting from his venture. In cross-examination he maintained that the glucose did not belong to him and indicated that it must have been left behind by the previous occupant.
I have reservations about Mr Goodliffe’s evidence on this topic. The presence of a suitable cutting agent in the vicinity of his laboratory is highly coincidental if he has told the truth. However, it must be borne in mind that it was not in dispute that Mr Goodliffe had been living in the flat for only three weeks.
There is also some force in Mr Cocchiaro’s submission that Mr Goodliffe was obviously aware that the police located the glucodin in the flat. It is referred to in the depositions. He could easily have manufactured a story that he used the glucose to cut the methylamphetamine used by himself and his friends.
While I have reservations about this aspect of his account it remains a reasonable possibility.
The Stolen Property
In relation to the items of stolen property, Mr Goodliffe conceded that he knew they were stolen. He said that he purchased the stolen goods in January 2004 for a total of $350. He said that he bought the property from pokie addicts who needed money to finance their habit. He said that he acquired the property before he commenced manufacturing amphetamines. It was his intention to give the stolen goods to drug dealers in exchange for amphetamines. He said that he had already traded some of the property for drugs before he commenced manufacturing.
The prosecutor submitted that Mr Goodliffe’s explanation for the stolen property should be rejected on two grounds. First, he did not have the finances to purchase the stolen property. I do not agree with that submission. As I have said, on his account, he still had a couple of thousand dollars in his bank account at Christmas 2003. He said that stolen goods were acquired only a short time later, in January 2004, at a cost of about $350. There is no evidence, in my view, that he was financially incapable of purchasing these items.
The second point, however, is more substantial. Mr Goodliffe insisted that he bought the stolen goods before he began manufacturing methylamphetamine so that he could exchange the goods for drugs. However, one of the stolen items, a computer scanner, was stolen on 2 February 2004 i.e. after Mr Goodliffe commenced manufacturing methylamphetamine. Under close cross-examination he said that he could not recall the circumstances in which he acquired the scanner.
I was unimpressed by this aspect of Mr Goodliffe’s account. But this deficiency in his evidence does not satisfy me, beyond a reasonable doubt, that his drug operation necessarily involved trading drugs for stolen property. As his counsel submitted if he was in the habit of acquiring stolen goods, and I suspect he was, he may have forgotten the circumstances in which he acquired the scanner. Furthermore it is dangerous to jump to the conclusion that his acquisition of the scanner after he commenced manufacturing means that the prosecution must be right. There is the real possibility that Mr Goodliffe acquired the stolen scanner simply to make some money.
The Message
In relation to the message left on the mobile phone, Mr Goodliffe admitted that he knew a man named ‘Thrash’. He said that about a week before the police raid he had an altercation with Thrash and discontinued their association. He denied that he was involved with Thrash in drug selling activities.
In the course of his evidence Mr Goodliffe implied that he had been set up by Thrash. The point was developed by Mr Cocchiaro in his closing submission. He submitted that there is a real risk that Thrash was behind the anonymous telephone call to police and set up Mr Goodliffe as a commercial operator by leaving a false message on his mobile phone. In support of that proposition he pointed out that Thrash left the message on Mr Goodliffe’s phone at 2.39 pm. The anonymous call to police was made only 30 minutes later. There may be something in this.
But there is another reason why I am reluctant to place too much store in the call. The call on the prosecution case suggests that Thrash harboured a belief that Mr Goodliffe might be interested in going to Melbourne to sell drugs. But his belief may have been erroneous. The basis upon which he formed that belief is unknown. The belief is consistent with Mr Goodliffe having been involved in commercial drug dealings with Thrash. But on the other hand Thrash may have made the comments on the phone for reasons unrelated to any such activities. He may have been acting on false rumour or gossip. He may have wrongly thought that Mr Goodliffe might be tempted to sell drugs. He may have been referring to other criminal activities such as fencing stolen property. I am loath to act on this call. The position may well have been different if the police intercepted multiple calls of a similar nature as was the case in Firman. But in the circumstances of this case, I am not prepared to draw the inference that the prosecution invites me to draw from this single call.
There is one final matter. In the course of the search the police located a set of digital scales and a quantity of plastic press-seal bags. Mr Cocchiaro submitted that those items were entirely consistent with his client’s case. In other words that the items were used to weigh and package methylamphetamine earmarked for friends. The bags could also have been used to package powder that Mr Goodliffe may have wanted to carry around for his own use. Indeed the police found a press–seal bag in his wallet which contained a small amount of white powder.
The neutrality of these items from an evidentiary point of view appears to have been accepted by the prosecution. At no point did the prosecutor submit that these items were indicative of commercial operations. Indeed, neither she nor counsel for the accused questioned Mr Goodliffe about them.
Conclusion
I have reservations about aspects of the evidence given by Mr Goodliffe but I am not satisfied that the prosecution has proved commerciality beyond a reasonable doubt. Accordingly, Mr Goodliffe will be sentenced on the basis that he committed the charged offence with the intention of manufacturing methylamphetamine for personal consumption and social supply to friends.