R v Leung; R v Webster (No. 4) - [2022] NSWDC 553

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Leung; R v Webster (No. 4) [2022] NSWDC 553
Hearing dates: 5-8, 11-14, 19-22, 28-29 April 2022, 9 May 2022.
Date of orders: 29 April 2022, 9 May 2022.
Decision date: 09 May 2022
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
See pars [223]-[228], [291]-[297].

Catchwords:
CRIME – CRIMINAL TRIAL BY JUDGE ALONE – Indictment containing 8 counts (see [92]) against 2 accused – Charges included manufacture of a commercial quantity of cocaine; knowingly take part in the manufacture (supply precursor); supply of drugs; and failure to inform police of serious indictable offence – Crown case on all counts purely circumstantial – Assessment of the evidence adduced by the Crown.

Legislation Cited:
Crimes Act 1914 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Alliston v R [2011] NSWCCA 281
Attwood v R (1960) 102 CLR 353
Braysich v R (2011) 243 CLR 434
Melbourne v R (1999) 198 CLR 1
Pereira v Director of Public Prosecutions (1988) 63 ALJR 1
R v Jasper [2003] NSWCCA 186; (2003) 139 A Crim R 329
R v Kuroz [2020] NSWDC 427
R v Leung; R v Webster (No. 1) [2022] NSWDC 137
R v Ruiz-Avila [2003] NSWCCA 264
R v Sheen [2007] NSWCCA 45; (2007) 170 A Crim R 533
R v Wass [2021] NSWDC 414
Shepherd v R (1990) 170 CLR 573
Wilson vDirector of Public Prosecutions [2017] NSWCA 128

Texts Cited:
Sir Edward Coke, The First Part of the Institutes of the Lawes of England. Or, a Commentarie Upon Littleton, Not the Name of a Lawyer Onely, but of the Law It Selfe (1st ed, 1628)
Voltaire (François-Marie Arouet), Candide

Category: Principal judgment
Parties: R – Crown
First Accused – Canny Leung
Second Accused – Cameron Stewart Webster
Representation: Counsel:
Crown – Nightingale, K.
First Accused – Boe, A. with O’Neill, C.
Second Accused – Ramrakha, T.
Solicitors:
Crown – Office of the Director of Public Prosecutions (NSW)
First Accused – Nyman Gibson Miralis Defence Lawyers and Advisors
Second Accused – LegalAid

File Number(s): 2019/276597; 2019/276599
Publication restriction: Nil.

Judgment

Background
The Premises
Mr Choi
The First Accused
The Second Accused
The Criminal Organisation Search Warrant
The Garage
Bedroom 1
Bedroom 2
The capsules
Plastic container
Conclusion regarding bedroom 2
Bedroom 3
Mr Yeom
Mr McCormick
The container
The Liquourland bag
The food dehydrator
The paper shredder
The home office
Kitchen area
Above the oven
Scales
Medibank card
Plastic container
The remainder of the kitchen
Laundry
The Mercedes-Benz
The search of under the stairs and on the lower floor of the Premises

Indictment
The Crown case - manufacture
The Crown case - supply
Directions
Onus of proof
Standard of proof
Inferences
Actual knowledge
Circumstantial case
Good character evidence
Accuseds’ election to not give evidence

Elements for counts against the Second Accused
Count 1
Consideration – Count 1

Count 4
Consideration – Count 4

Count 5
Consideration – Count 5

Count 6
Consideration – Count 6

Count 7
Consideration – Count 7

Count 8
Consideration – Count 8

Verdict re the Second Accused
Elements for counts against the First Accused
Count 2
Consideration – Count 2

Count 3
Consideration – Count 3

Count 4
Consideration – Count 4

Count 5
Consideration – Count 5

Count 6
Consideration – Count 6

Count 7
Consideration – Count 7

Verdicts re the First Accused

Judgment

Background

This is a criminal trial by Judge Alone. There are two accused, Ms Canny Leung (“the First Accused”) and Mr Cameron Stewart Webster (“the Second Accused”).
The First Accused is the first named defendant merely because the proceedings were commenced in Court against her before they were commenced against the Second Accused. That means that the First Accused has an earlier plaint number, and her name appears on the Court records ahead of the Second Accused. In due course, I shall deal with the allegations against the Second Accused first, because he is the only person named as an accused in respect of count 1 in the indictment.

The Premises

The allegations arise out of the execution by police of a Criminal Organisation Search Warrant (“COSW”) at Unit 22/2-8 Water Street, Birchgrove (“the Premises”). The Premises have been described as a townhouse, and could be described as a modern terrace house. Exhibit 3 contains most of the written or graphic documents relied upon by the Crown. It is divided into a number of sections. Exhibit 3, section A2, contains a sketch plan of the Premises. The townhouse is of two storeys. The upper level is at street level. Unfortunately, the sketch plan has no north point. For ease, I shall assume that the top of the diagram is north and the bottom of it is south. The townhouse is entered from a porch on the southwestern side of the upper level. The main entry door leads directly into an area containing the dining room table.
Immediately on the right of the entry door, as one enters the townhouse is a doorway leading to a laundry. I shall describe the laundry in greater detail later on. However, it should be noted that the laundry has a washing machine and a laundry tub and a workbench. It also contains a toilet and a hand basin, which one would normally find with a toilet in either an en suite or a separate toilet area, the handbasin being clearly for the washing of hands after the use of the toilet.
The second turn to the right after entering the townhouse takes one into the kitchen. The kitchen could be described as U-shaped. The refrigerator is against the southern wall of the kitchen. The stove, with the oven beneath it, is on the eastern wall. On the northern side of the kitchen is a bench containing the kitchen sinks, and behind that is a breakfast bar. On the other side of the breakfast bar is the main living area of the townhouse. Against the western wall of the living area is a staircase leading down to the lower level.
Between the entry to the staircase and the northern wall of the terrace, but against the western wall of the terrace, is an area that could be described as a home office. The diagram shows a desk occupying the area between the northern end of the stairwell and the northern wall of the terrace hard up against the western wall of the terrace and below a window. The northern wall is flanked by two sets of double doors giving access to a balcony.
One descends the stairs from the upper level to the lower level. At the northern end of the lower level is the master bedroom or bedroom 1. It has an en suite bathroom which is entered from the southern wall of the bedroom 1. The staircase leads into what might be described as a passageway. At the northern end of the passageway is the entrance to the master bedroom. At the southern end of the passageway is the entry to bedroom known as bedroom 2. Near the entry to bedroom 2, in a door on the eastern side of the hall or aisle, is the entry to another bedroom known as bedroom 3.
Pertinent to the townhouse is a double garage, access to which is gained by a series of staircases which I understand to lead down the western side of the townhouse. The evidence as to how access is gained to the garage is contained at T13.01 to T13.07.
At all material times, these Premises were rented out. The managing agents were a firm known as Eastside Realty Pty Ltd of Randwick. A copy of the coversheet of two leases is contained in Exhibit 3, section A1. The Premises were let to Hyeon Joon Choi, also known as John Choi (“Mr Choi”), commencing on 17 October 2017 for a period of 12 months expiring on 6 October 2018. Not only was the townhouse let to Mr Choi, but also let with it was a marina known as number 35-22/2-8 Water Street, Birchgrove. The initial rental for the Premises was $4,779.76 payable each calendar month to the managing agent. According to this lease, no more than two persons might ordinary live in the Premises at any one time.
A further lease was granted to Mr Choi for a further six month period commencing on 7 October 2018 and expiring on 6 April 2019. On this occasion, the marina was not part of the tenancy. The rental for the townhouse without the marina was $4,019.35 per calendar month. According to this lease, no more than three persons could ordinary live in the Premises at any one time. The evidence does not disclose that there was any further formal lease granted to Mr Choi. However, the inference to be drawn from the evidence that I have heard is that Mr Choi stayed on as the tenant on a holding over as a monthly tenant. As at 4 September 2019, when the COSW to which I have referred was executed, the managing agent still regarded Mr Choi as the tenant.
At the time of the execution of the COSW, Mr Choi was not at the Premises. According to the First Accused, he was last seen at the Premises on the morning of 3 September 2019, that is, on the previous morning. According to the First Accused she was Mr Choi’s “girlfriend”. It is common ground that they were living together as a couple, living together in an intimate personal relationship. They shared the master bedroom of the Premises. According to the First Accused they had been living together at the Premises for about a year and a half.

Mr Choi

The evidence does tell me something about Mr Choi. From Exhibit 25, page 19, one can ascertain that Mr Choi was born in Seoul but had been granted Australian citizenship. As at 4 September 2018, he was 45 years old. According to evidence given by the Officer in Charge, Senior Constable Grogin, commencing at T299.16 until T301.15, Mr Choi was convicted of attempted robbery in company in 1994. He was extradited to Melbourne to face a charge of conspiracy to pervert the course of justice, which charge was laid on 9 July 1999. On 2 September 2003 he was charged with aiding and abetting the importation of a narcotic drug in more than a commercial quantity. That is an offence against the law of the Commonwealth of Australia. It should be noted that under New South Wales law, there is a distinction between a commercial quantity of a prohibited drug and a large commercial quantity of a prohibited drug, but, in the regime under Commonwealth law, the largest known quantity of any prohibited border-controlled substance is a commercial quantity.
According to Senior Constable Grogin’s evidence, Mr Choi was found guilty of that offence and was sentenced to imprisonment for 20 years. I do not know when the sentence commenced. I do not know the length of the non-parole period. The Crimes Act 1914 (Cth) provides that if the Court imposes a prison sentence of more than three years, the Court is to impose a non-parole period. I can only conclude that Mr Choi had been released on parole at least by the time he took out the lease on the Birchgrove property commencing on 7 October 2017.
According to other evidence given by Senior Constable Grogin, Mr Choi remained at liberty, despite the interest of the police in dealing with him for what was found at Birchgrove on 4 September 2019, until he was arrested on Friday 8 April 2022, i.e. during the period that this trial was underway. I have been advised that he was arrested at a home unit in Gardener’s Road, Mascot, and located with him at the time of his arrest were several kilograms of prohibited drugs and close to $5,000,000 AUD in cash.

The First Accused

The First Accused’s normal occupation was as a member of a Qantas International Cabin Crew. Exhibit 18 are her travel movements from early 2018 showing frequent short absences overseas until 5 June 2019 when she took some accumulated leave or took a break from her work. She also had a business which could be described as “Pawfect Pooches”. Pawfect Pooches Pty Ltd was incorporated in New South Wales on 4 May 2019. Its registered address was the Premises. The First Accused was a Director of the company from 4 May 2019. One part of this business was a “Doggy Day Spa” conducted at 485 Darling Street, Balmain (see Exhibit 25). Another part of the business appears to have been the production of “Pawfect Gourmet Natural Healthy Dog Treats” which included beef, chicken, and fish jerky, for dogs (see Exhibit 14). That dog jerky was available at the Doggy Day Spa in Darling Street, Balmain, and could be ordered online.
At the time of the execution of the COSW, the First Accused was 38 years old. The First Accused paid no rent either to the landlord or to Mr Choi. She resided in the Birchgrove property as the result of her intimate personal relationship with Mr Choi, in other words she lived there by his grace and favour. If her relationship with him failed, one would have expected her to have to seek alternative accommodation or strike some new arrangement with Mr Choi, perhaps by moving into one of bedrooms 2 or 3 and commencing to pay rent to him occupying the Premises as a sub-tenant of Mr Choi.

The Second Accused

At the time of the execution of the COSW, the Second Accused was, like the First Accused, 38 years old. The trial process in which I have been involved suggests that the Second Accused came to the Premises on 5 April 2018 as a result of paying rent to Mr Choi as his sub-tenant. However, it appears that the Second Accused had given up his tenancy to travel overseas leaving Australia on either 15 or 16 June 2019, and returning to Australia on 30 July 2019.
On 24 July 2019 and 25 July 2019, the Second Accused and the First Accused exchanged text messages which can be found in Exhibit 19. On 24 July 2019, the Second Accused sent to the First Accused these texts:

“Aww, prob next Tuesday, I might live with you for a month... If there’s room!”

On 25 July 2019, the First Accused responded with these messages to the Second Accused:

“There is plenty!... Birchy and cruzy will luv to have u here”.

I interpolate that I understand that “Birchy” and “Cruzy” were two dogs belonging to the First Accused. That drew from the Second Accused a positive response, which then drew a positive response from the First Accused.

As a result of that interchange of messages, the Second Accused came to stay at the Premises and was still staying there at the time of the execution of the COSW on 4 September 2019. There was no evidence that the Second Accused paid any money either to Mr Choi or to the First Accused for his stay at the Premises between 30 July and 4 September 2019. The evidence does not tell me anything about the Second Accused’s normal occupation, calling, or the source of his income. It is accepted that the Second Accused was sleeping in, and keeping his possessions in, the bedroom known as bedroom 2 since he returned to the Premises on 30 July 2019.

The Criminal Organisation Search Warrant

On 3 September 2019, Harrison J issued the “Criminal Organisation Search Warrant” permitting police to enter and search the Premises. The COSW was executed by police at approximately 8:00am on 4 September 2019. The First Accused and Second Accused were both present at the time of the execution of the warrant. Initially, there was a walk through by police, then a walk through with a police drug dog known as “Lulu”, and then the usual search.
In discussing the search, I have largely followed the layout of the Agreed Facts. The areas searched and the order in which they were searched are:

The garage;

Bedroom 1, the master bedroom;

Bedroom 2 (which was being used by the Second Accused);

Bedroom 3;

The area underneath the stairs;

The home office area on the top floor;

The living area/dining area on the top floor;

The kitchen;

The laundry; and

A Mercedes Benz motor car parked on Water Street outside the Premises.

There are sets of agreed facts between the Crown and the Second Accused which are Exhibit 1, and between the Crown and the First Accused which are Exhibit 2. The facts are almost identical, the difference being the excision from Exhibit 1 of a certain proprietary name, however the excision was ultimately unnecessary because I excluded certain evidence on the voir dire.

The Garage

I go to each of the areas enumerated in par [21]. In the garage was parked a white BMW motor car. Papers found inside that vehicle indicate that it belonged to “J Upton” of “1406/1 Grandstand PDE Zetland NSW… 2017” (see Exhibit 25). Police also found two 20 litre drums, which were empty, but with labelling which indicated that they had contained isopropyl alcohol. The police labelled those drums as X0000817729.

Bedroom 1

I now go to the search of bedroom 1. Quoting what was found in the search I shall largely rely on the agreed facts. Agreed Facts 9 and 10 are these:

“9. That, on 4 September 2019 NSW Police located the following items in bedroom 1:

9.1 Australian currency in the following amounts in different locations:
9.1.1 $1370 (XD000133943)
9.1.2 $2000 (XD700070380)
9.1.3 $1400 (XD700070379)

10. The following items:

10.1 Resealable bag containing 0.08g of cocaine (XD700070373)
10.2 Two resealable bags containing 0.14g of cocaine (XD700070374)
10.3 Resealable bag containing 0.17g of cocaine (XD700070375)
10.4 Resealable bag containing traces of cocaine (XD700070377)
10.5 Resealable bag with white powder residue (XD700070378)”.

The entry door to bedroom 1 is on the southern side of the room close to the western wall. The entry door swings from right to left to be parallel with the western wall. Along the western wall of the bedroom are built-in wardrobes. As one faces the bed, the left-hand side or north side was occupied by Mr Choi and the right-hand side or southern side was occupied by the First Accused.
The entry to the en suite bathroom is on the southern side of the room, that is, on First Accused’s side of the bed. The built-in wardrobe on the north side was used by Mr Choi, and the built-in wardrobe on the south side was used by the First Accused. One can ascertain that from the contents of the wardrobes.
Between the foot of the bed and the entry door was a chest of drawers on which a television was positioned. All the drugs were found in the wardrobe containing the First Accused’s clothing. The total of those amounts of cocaine was 0.39 grams of cocaine.
When I reviewed the film in Chambers, it appeared to me that the finding recorded in Agreed Fact 10.1 may have been on Mr Choi’s side of the wardrobe. The officer producing the package was on the First Accused’s side of the wardrobe, but whence he obtained the package is unclear, that is whether it came from her side or his side. If so, if the packaging came from Mr Choi’s side of the wardrobe, then only 0.31 grams of cocaine could be “allocated” to the Second Accused.

Bedroom 2

I turn now to bedroom 2. Bedroom 2 is shaped roughly like a square box from which the top right-hand corner has been excised. One enters the room from a doorway swinging from right to left from the lower north side of the room. In the higher north side of the room are built-in wardrobes. The head of the bed is against the western wall of the room. The southern side of the bed is closer to the southern wall than the northern side of the bed is to the wardrobes. Towards the east wall was a chest of empty drawers, empty but for a set of gloves, on which stood a television. On the north side of the chest of drawers with the television were receptacles with male clothing in them. On the western side of the room between the north side of the bed and the built-in wardrobes was a tallboy, that is a large chest of drawers.
Agreed Fact 11.1 is this describing an item located in bedroom 2:

“A folded piece of paper containing traces of cocaine (XD000133946) and the Accused Webster’s right thumb print was identified on the piece of paper, and the Accused Webster could not be excluded as the source of the right index fingerprint located on the piece of paper.”

Agreed Fact 11.2 refers to the finding of “a resealable plastic bag containing 0.1 gram of cocaine (XD70070376)”. Those items were found in a tin which was placed on the chest of drawers holding the television set, and the tin was behind the television set. Also in the tin was a membership card of a prominent community group with the Second Accused’s name embossed into the membership card. The total of cocaine found in the tin was 0.1 grams of that drug.

Agreed Facts 11.3 and 11.4 are these:

“11.3 Two resealable plastic bags with 65 capsules containing a total of 8g of 3, 4-methylenedioxymethylamphetamine (MDMA) (XD000133949).

11.4 A round plastic container containing 6.8g of MDMA (XD000133950)”.

The two resealable bags with 65 capsules containing 3,4‑methylenedioxymethylamphetamine (“MDMA”) were found on the floor next to the bed towards the foot of the bed on its north side. The round plastic container containing 6.8 grams of MDMA was found on the north side of the bed towards the head of the bed. The total of the MDMA found in bedroom 2 was 14.8 grams. Nearby to those substances were found two packets of capsule parts, size 4, a “Cap-M-Quik” size 4 capsule filler in a box, some clear plastic jars with blue screw top plastic lids and a tax invoice.
The tax invoice had been issued by “The Capsule Guy” and bears date 15 August 2019. It is addressed to the Second Accused at an address in Ebbley Street, Bondi Junction. The invoice is for one bag of separated size-4 gelatin capsules, for one Cap-M-Quick filler machine with “tamper 4” (the size), and for 25 plastic jars each capable of holding 125 millilitres, and they were clear. The price of the capsules was $110.00. The price of the filling machine was $57.00, and the cost of the 25 plastic jars was $1.50. Shipping of the items to the Second Accused at the Bondi Junction address was free

The capsules

One of the many minor disputes in this trial was whether there were 500 capsules, as advocated by Mr Ramrakha of Counsel on behalf of the Second Accused, or 1,000 capsules, as advocated by the Crown Prosecutor. Logic demands that there were only 500 capsules. Capsules come in two parts, an inner part and an outer part. The inner part slips inside the outer part such that the opening to the inner part is in the closed bottom of the outer part. Most Australians know what a capsule containing medication looks like, and how they operate. It is clear from the tax invoice that the inner and outer parts of the capsules were sold separately. One would therefore expect there to be a bag of inner capsules and a bag of outer capsules. That is what the photographs show. Furthermore, for the capsule filling machine to operate efficiently, one would require a separate place in which to insert the inner parts of the capsule and the outer parts of the capsules. It would appear to me to be a complete waste of effort to sell capsules fixed together which then had to be separated by hand before they could be filled. As I said, logic demands that there were two bags, one containing the inner part of the capsules and the other containing the outer part of the capsules, each bag containing 500 items, but there not being in fact 1,000 capsules as the Crown Prosecutor submitted.
The inference is certainly available from where these items were found that the Second Accused had bought the capsules, and the capsule filling machine to fill capsules with MDMA, and that such capsules were in fact found in his room, in fact, 65 filled capsules. The inference can also be drawn that the drug found in the round plastic container was the source of the drug which was being filled into the capsules.
In other places in bedroom 2 were found smaller quantities of empty capsules, perhaps indicating that the purchase made on 15 August 2019 was not a ‘one off’ purchase that there had been earlier purchase of other capsules.
I should indicate at this stage that the round plastic container containing the 6.8 grams of MDMA was the only container of its type found in these premises.

Plastic container

Agreed Fact 11.6 refers to the finding of a 5-litre red plastic container containing 3.014 kilos of gamma-butyrolactone (“GBL”). That was found underneath a clothes rack that was outside the wardrobes, and appears to have been lodged in the lower framework of that metal clothes rack. One of the things that cannot be decisively ascertained from the film is whether the clothes rack was on caster wheels or not. However, I can point out that it did not appear to move easily when the search was being conducted. The clothes rack contained mainly, and perhaps solely, female clothing, excepting what appears to have been a male straw hat at its top. There is no fingerprint evidence or DNA evidence linking the Second Accused to this container of GBL.
The container is in fact a very small jerry can. These days, jerry cans are more likely made from plastic rather than metal. However, the jerry can looks to be a very small version with a maximum capacity of 5 litres, taking in to account that what is visible is the top of a jerry can, with the majority of the jerry can omitted. Other than the fact that this item was found in the bedroom that the Second Accused was using, there is no other evidence that links the Second Accused to the small red jerry can and therefore to its contents, namely the GBL.

Conclusion regarding bedroom 2

I am not persuaded that bedroom 2 was in the Second Accused’s exclusive possession or that the room was empty at the time that he commenced to sleep there on 30 July 2019. I have seven reasons to support that conclusion.
Firstly, he had been absent from bedroom 2 for at least six weeks. Secondly, the accommodation which he was given there was only temporary, for about a month, and a little over a month had expired at the time of the execution of the COSW. The third reason is that, within the dwelling, no matter where one went in it, it appeared extremely cluttered. The fourth reason is that the First Accused had many clothes; according to the Crown opening there was female clothing in bedroom 3. The relevant part of the opening which can be found at T2.25 is this:

“When the police searched the adjacent bedroom which has been labelled bedroom 3, which the accused, Ms Leung told the police was not occupied by any person, they located female clothing; items for the accused, Ms Leung’s business.”

That is hardly a slip. It is quite possible that the First Accused placed a rack of her clothing in bedroom 2 during the Second Accused’s absence overseas. As the Second Accused was being accommodated after 30 July 2019 on a ‘friendship basis only’, he might not be able to complain about the rack of female clothing in bedroom 2, or in good conscience be able to ask the First Accused to move the rack elsewhere. The fifth reason is that there is no evidence that the Second Accused wore female clothing, or as it was bluntly put by his own counsel, that he engaged in “cross-dressing”. Many photographs of him were put into evidence at both the trial and on the voir dire, images downloaded from the Second Accused’s own phone, but none of them was of the Second Accused wearing any female attire. The sixth reason is that, to the contrary, the images in evidence suggest that his sexuality focused on a completely different subject, bluntly ‘S and M’ or ‘bondage’ (see Exhibit 35).

My final reason is that there was also found in bedroom 2 large plastic tubs, one containing an extremely large supply of paper towelling and another containing a supply of shopping bags, bags which had been provided when other items had been purchased. It is unlikely that they had been acquired by the Second Accused between 30 July and 4 September 2019. It is more likely that they were deposited there during his absence overseas. The paper towelling may have been something to do with the First Accused’s “Pawfect Pooches” business, items relating to which were also found in bedroom 3.
The red jerry can, as I have mentioned, was a 5-litre capacity. The evidence discloses that Mr Choi bought a 10-litre capacity red jerry can on 24 April 2019 at Bunnings at Ashfield (see Exhibit 29). The receipt was found amongst Mr Choi’s records in the home office area (T293-T294). This 10-litre jerry can was found later in the search in the laundry, empty. Whether it had ever been used the evidence does not disclose. The point I am seeking to make is that Mr Choi was the source of red jerry cans, and the purpose for which the 10-litre can was purchased is completely unknown.
The argument advanced by the Crown is that in addition to buying capsules and the capsule filling machine on 15 August 2019, the Second Accused purchased the 25 x 120 millilitre clear plastic jars with blue screw top lids, a number of which were found near the capsules and the capsule filling machine. The tax invoice (Exhibit 3, item D11) says that the Second Accused bought 25 of these plastic jars, as I already mentioned, for the princely sum of $1.50. They are obviously very cheap items. To me they appear like specimen jars used in the collection of urine samples by medical practitioners, and also used for collecting other specimens to be submitted for pathological testing.
The Crown submitted that if one freezes the film of the search, one can count about 14 remaining plastic jars. The best that I could make of the video when frozen was about 10, but the quality of the vision is extremely poor. It was submitted that the plastic jars were for the sale of small quantities of GBL to be drawn from the 5-litre jerry can, and as there were no longer 25 plastic jars the Second Accused must have already used those no longer found in order to sell GBL. With the utmost respect, this is nothing other than pure speculation.
If the capsules were purchased in order to be filled with MDMA in order that the MDMA be encapsulated for trafficking, then might not the jars be used to sell larger amounts of MDMA? Exhibit 15 are the admitted parts of a statement made by Senior Constable Grogin, misdated 28 March 2021, but probably supposed to be dated 28 March 2022; however, even that is problematical. This was dealt with on the voir dire, however certain items of the statement were not objected to. Paragraph [15] of the statement refers to the prices for MDMA and par [17] relates to the prices for GBL. They are these:

“15. The price for a ‘street deal’ or ‘cap’ [of MDMA] varies between $20-$30. When purchased in bulk, the price for an ounce (28 grams) of [MDMA] is $2,500-$4,000. The price for a kilogram of [MDMA] is $35,000-$40,000.

…

17. The price for a ‘street deal’ (1mL) of [GBL] varies between $6-$8. When purchased in bulk, the price for 100 mL of [GBL] varies between $650-$700. The price for one litre of [GBL] varies between $2,000-$3,000.”

A street deal of GBL is only 1 millilitre. The capacity of the plastic jars is 120 millilitres, which could be used for selling amounts of 100 millilitres of GBL. However, there was no measuring device found with the jerry can, nor with the plastic jars, which would have enabled the Second Accused to do the necessary measuring. There was no equipment found in bedroom 2 which would have allowed the Second Accused to decant small amounts of liquid from the jerry can, for example a small funnel or set of funnels. On the other hand, there was nothing found in bedroom 2 which would have enabled the Second Accused to weigh out, for example, an ounce, or 28 grams, of MDMA, but multiple small sets of scales were found elsewhere in the Premises.

A further observation must be made about the plastic jars. They could have been used for a large number of purposes, many of which would have been wholly legitimate. The presence of the plastic jars cannot be used in the way the Crown indicates as proof on the criminal standard to link the Second Accused to the GBL.
Agreed Fact 11.5 refers to two plastic bags containing 22.1 grams and 0.3 grams of cannabis (XD000133948 and XD000133947). These were found on top of the ‘tallboy’ together with items commonly found with cannabis, for example a mixing bowl or a bowl which could be used to prepare the cannabis for smoking and cigarette papers. The cannabis is not the subject of any charge currently before me but may be a backup charge.
Agreed Fact 11.7 refers to the finding in the ‘tallboy’ of Australian currency amounting to $470. This is an amount which any adult in our community could have in his or her possession or carry at any one time. Of itself, it has no probative value whatsoever.

Bedroom 3

I turn now to the search of bedroom 3. This room had not been allocated to any particular person as a place of sleep. It appears to be common ground that it was used as a storage space. According to the Agreed Facts, the following was found in this room:

“12.1 A black cooler bag. The interior of black cooler bag was swabbed and the examination of the swab revealed cocaine. The bag contained:

12.1.1   A square container containing 3 plastic bags (XD000120846) containing:
12.1.1.1   27.37g methylamphetamine.
12.1.1.2   27.87g MDMA
12.1.1.3   27.75g MDMA

DNA recovered from a trace swab of the knots in the three plastics bags is a mixture that originates from at least two individuals. An unknown female (not the Accused Leung) and Luke Yeom cannot be excluded as contributors to this mixture.
12.1.2 A square plastic container containing 554g of crystallised MDMA (XD000120847). A DNA swab of the clasps and under the lip of the lid of the container recovered DNA from at least three individuals. Paul McCormick cannot be excluded as the majority contributor to this mixture. The DNA from the minor contributors is not suitable for comparison due to the lower level and complexity.
12.1.3 A container containing 443.7g of crystallised MDMA (XD000120848). Four fingerprints on the container were identified as the right middle fingerprint of the Accused Webster. Two other fingerprints on this container could not be identified.
12.1.4 A red Liquorland environmental bag (X0003584251) containing a resealable plastic bag containing 339.8g of crystallised MDMA (XD000120845). DNA recovered from a tape lift of the handles of the red environmental bag is a mixture that originates from at least three individuals. The Accused Leung and Hyeon Joon Choi cannot be excluded as contributors to this mixture. The DNA from the additional contributor(s) is not suitable for comparison due to the low level.
12.1.5 A doorbell box in which there were seven plastic packets and four resealable bags of cocaine weighing a total of 209.23.

12.2 A glass dish with white powder residue (X000817750).

12.3 A box containing $27,550 in Australian currency

12.4 A Sunbeam food dehydrator with three sheets of baking paper with white powder residue (X000817753). Four fingerprints were located on the dehydrator. One on the side of the dehydrator was identified as the left index fingerprint of the Accused Leung. One on the right edge of the door of the dehydrator was identified as the right thumb print of the Accused Leung. The other two fingerprints were not identified.

12.5 A paper shredder. A swab from the opening and blade area of the paper shredder was taken and identified cocaine, and indicated the presence of methylbenzoate, ecgonine methyl ester and anhydroecgonine methyl ester. A fingerprint on the exterior side of the paper shredder was identified as the Accused Webster’s right index fingerprint. (X0003584286)”

I make the following comments on matters raised in those Agreed Facts.

Mr Yeom

Paragraph [2.1.1] refers to Luke Yeom. A bail report relating to Mr Yeom is Exhibit 33. As at 4 September 2019, he was 27 years old. He has convictions as an adult for possession of a prohibited drug, and for supply of prohibited drugs. He was sentenced to imprisonment for two years and six months with a non‑parole period of one year and two months, for a number of offences including supply of a prohibited drug. I understand that he is an associate of Mr Choi.

Mr McCormick

Paragraph [12.1.2] refers to the DNA of Paul McCormick. A bail report concerning that man is Exhibit 34. As at 4 September 2019, he was 53 years old. Leaving aside irrelevant offences such as driving offences, he has convictions for supplying prohibited drugs, supplying prohibited drugs in the commercial quantity, firearms offences, possession of precursor drugs, and having goods in custody reasonably suspected of having been stolen. On 11 August 2006, this Court sitting in Sydney sentenced him to a non-parole period of nine years commencing on 20 March 2005 and expiring on 19 March 2014, with a parole period of six years expiring on 19 March 2018. As I understand it, Mr McCormick is also an associate of Mr Choi.

The container

Paragraph [12.1.3] refers to the fingerprints of the Second Accused being found on a container which held 443.7 grams of crystallised MDMA. The container was an oblong clear plastic container, but it did not have a clip lock top. Photographs of the container are found in Exhibit 3, item E3 pp 8 to 15. The finding of the fingerprints of the Second Accused indicate that at some stage, the Second Accused handled the exterior of that container.

The Liquourland bag

Paragraph [12.1.4] relates to a red “Liquorland” brand environmental bag. I would describe it as a bag for carrying six bottles of wine or six longnecks of beer. The finding of the DNA of the First Accused on that Liquorland carry bag means that at some stage she may have used it. Equally it is possible that Mr Choi transferred her DNA on to it, and it is possible that she transferred his DNA on to it. The plastic bag of drugs found within the red bag was not found with any fingerprint or DNA evidence on it. The fact remains that the bag could have been used for innocent purposes by the First Accused at some time, and later drugs may have been placed within it. It does not necessarily link the Accused to the drugs found in it.

The food dehydrator

Paragraph [12.4] relates to a “Sunbeam” brand food dehydrator. There was much argument about the provenance and the use of the food dehydrator. It was found on the bed in bedroom 3, covered by fabric which appeared to me to be a tablecloth. This item may well have been acquired by the First Accused for use in her “Pawfect Pooches” business to dehydrate food for making dog jerky. In that regard, one should have regard to the photographs in Exhibit 14, especially pages numbered 53 of 94, 54 of 94 and 55 of 94. What the white powder found on the baking paper was, the evidence does not establish. The Crown submits that it could be cocaine. The First Accused, by her Counsel, Mr Boe and Ms O’Neill, submit that it could be “flour, or icing sugar, salt or ascorbic acid used for preserving dehydrated food” (written submissions, MFI 18, p 8 [21]).

The paper shredder

Paragraph [12.5] refers to the finding of a paper shredder. The finding of the Second Accused’s fingerprint on the paper shredder means only that at some stage, he has touched the item. It is possible, for example, that he moved the item from upstairs to downstairs, to move it out of the way or to put it in the room used as a storeroom. It does not mean that the Second Accused was involved in using the paper shredder to shred paper that had been impregnated with cocaine. It is possible that he moved or touched the paper shredder when he was already in bedroom 3 if he was there looking for some other item.

The home office

I turn now to the home office area. Found in the home office area on the upper level of the townhouse in the northwest corner of the living area, as I have earlier described, were these items as described in the Agreed Facts:

“13.1 A faux Coke Cola can containing nine resealable bags containing a total of 17.49 grams of cocaine (XD000120841) and one resealable bag containing 0.14g of methylamphetamine (XD000120851).”

Photographs of those items can be found in Exhibit 3 Section F2, pp 1, 2, 3 and 4. Further:

“13.2. Two resealable plastic bags containing 0.49g of cocaine (XD000120852) and 0.44g of MDMA (XD000120853).”

A photograph of those items is found in Exhibit 3, Section F2, p 5:

“13.3 A box containing $11,920 in Australian currency.”

Photographs of those items can be found in Exhibit 3, section F2, pp 6 and 7.

Hanging on the newel post of the staircase leading to the lower level was a white fabric bag marked “Dahua Technology”, containing a collection of discarded disposable gloves. Photographs of that can be found in Exhibit 3, section F8, pp 8 and 9. In the home office area, there were a series of lever-arch folders (evidence of Senior Constable Grogan T33.29) containing, inter alia, receipts, three pictures of which are in Exhibit 3, item F9, pp 9, 10 and 11. Page 11 is for the purchase at a hardware store in Balmain on 5 September 2019 of two 20-litre drums of “Diggers” brand isopropyl alcohol. The photograph on p 12 refers to the purchase of three safety chemical protector goggles, five “Pro2” brand gas vapour organic filters, three half mask twin filter respirators, and a pump siphon hanger pack on 1 January 2016 at the same hardware shop, ten months before the lease at Birchgrove was granted to Mr Choi. The evidence strongly suggests that these financial records belong to Mr Choi.

Kitchen area

I turn now to the search of the kitchen area:

“14.1 In a cupboard above the oven the following items:

14.1.1 A plastic container containing 85.5g of cocaine (XD000120856). One fingerprint on the exterior surface of the plastic container was identified as the Accused Webster’s right palm print. The Accused Webster was unable to be identified or excluded as the source of two other fingerprints on the exterior surface of container.
The edge of the lid of the container was swabbed for DNA. The DNA recovered is a mixture that originates from at least two individuals. The major contributor has the same DNA profile as the Accused Webster. The minor contrinutor(s) is not suitable for comparison due to the low level.
14.1.2 A plastic container containing 12.8g of cocaine (XD000120854).
14.1.3 A plastic container containing 155.5g of cocaine (XD000120857). One fingerprint on the exterior lid of the plastic container was identified as the Accused Webster’s left palm print. The Accused Webster was unable to be identified or excluded as the source of another fingerprint on the exterior surface of the container.
14.1.4 A plastic container containing 56.3g of cocaine (XD000120855). One fingerprint on the exterior surface of the plastic container was identified as the Accused Webster’s left thumb print. The Accused Webster was unable to be identified or excluded as the source of two other fingerprints on the exterior surface of container.
14.1.5 A plastic container containing 424.5g of lidocaine (XD000120855). A fingerprint on the exterior of the container was identified as Hyeon Joon Choi’s left middle fingerprint.

14.2 In a kitchen drawer two sets of scales were located (X0003584266) being a Tania brand scaled and a Tuff-Stuff brand scales. The buttons of Tanita brand scales were swabbed for DNA and the DNA recovered has the same DNA profile as Hyeon Joon Choi. The weighing pan of the Tanita scales was swabbed and the analysis of the swab identified cocaine. The weighing pan of the Tuff-Stuff scales was swabbed and the analysis identified cocaine, MDMA, methylamphetamine, and indicated the presence of methyl benzoate, ecgonine methyl ester, and anhydroecgonine methyl ester.

14.3 A casserole dish. Inside the dish was a Medibank card in name of Hyeon Joon Choi, two spoons, a metal sieve and a paint brush. A scraping of the dish and the items in it collected 0.34g of powder containing cocaine (A028).

14.1 A plastic container. The container also held two plastic scrappers, two plastic nozzles and a paint brush. A scraping of the container and the items it held collected 0.38g of a compressed substance containing cocaine (A029).”

I make the following comments on those agreed facts.

Above the oven

As to par [14.1], the covered area above the oven is in fact a cupboard above the extractor fan over the void above the kitchen hotplates that are above the oven. Numerous subparagraphs identify items located in this cupboard.
Paragraph [14.1.1] highlights a container, and photographs of this container are Exhibit 3, item G2 pp 1 to 5. This is not a clip lock container. The body of the container is clear plastic, its lid is black, and its shape could be described as a rectangle with rounded corners. It is a common household type of container. The finding of the Second Accused’s palm-print and DNA on it only indicate that, at some time, the Second Accused has handled the outside of the container.
Paragraph [14.1.3], discusses a circular container. Photographs of this item can be found in Exhibit 3, section G3, pp 12 to 15. This is a circular container with a clip lock top. The diameter of the lid being slightly greater than the diameter of the base of the container. The photographs confirm that the fingerprint of the Second Accused was on the exterior of the lid of the container. Again, that indicates that at some stage the Second Accused has touched that lid.
Paragraph [14.1.4] refers to a small rectangular clip lock box. Photographs of this item can be found in Exhibit 3, section G3, pp 16 to 20. The presence of the Second Accused’s thumb print again indicates that at some stage the Second Accused has touched or handled this container.
Paragraph [14.1.5] refers to a rectangular clip lock box, photographs of which are in Exhibit 3, section G2, pp 8, 9, 10 and 11. The lidocaine, which it is common ground is a cutting agent used for cocaine in order to increase the quantity by reducing the purity of the pure cocaine, appears to be within a plastic bag within the hard plastic box.

Scales

Paragraph [14.2] refers to a set of scales. A photograph of this item is found in Exhibit 3, section G4, p 21. The top set of scales has its lid opened. That is labelled “Tuff Weight” and is therefore the “Tuff Stuff” brand item. The lower scales are upside down. By inverting the image, the name “Tanita” can be read. The methyl benzoate, ecgonine methyl ester, and anhydroecgonine methyl ester are breakdown products from cocaine coming from the heating of that drug: see the evidence of Dr Coghlan at T73.10 to T73.34.

Medibank card

Paragraph [14.3], the card belonging to Mr Choi, was a Medibank card. The chemical operations group gave these items the code 040919BIRA028. One of the wooden spoons has a large round hole in what would normally be described as the bowl of the spoon. A photograph can be found in Exhibit 3, section G6 p 22.

Plastic container

Paragraph [14.4], this plastic container has no lid. Photographs are found in Exhibit 3, section G6, p 23. Additionally, Exhibit 3 contains at section G6 p 24 a photograph of another set of scales which has a reference sticker X0003584271.

The remainder of the kitchen

To understand the layout of the kitchen area, photograph Exhibit 30 is of great assistance. I assume it is a still taken of the video footage of the search. The photograph, Exhibit 30, shows a member of the NSW Police Force wearing shorts, a t-shirt, and blue gloves, searching an upper cupboard on the eastern wall of the kitchen. In front of him one can see the oven and the stovetop, the void above the stovetop, then the place where the extractor fan is, and above it double wooden doors where many containers of drugs were found. On either side of those wooden double doors above the extractor fan are painted wooden doors on both the left and the right-hand side, and the Police Officer is searching the cupboard, with a painted door on the left side of the doors above the cooking range.
On the Constable’s left, one can see the kitchen sink and the top of the breakfast bar on which has been placed a food processor and fresh fruit. In the drying rack beside the kitchen sink are a number of household items including, for example, plates which are drying out. One of the items drying out in the drying rack is one of the many plastic boxes that are found throughout the Premises. On the righthand side of the photograph, to the right of the Constable, against what would be the southern wall of the kitchen, is the refrigerator. Again, that is very useful in orientating one as to the layout of the kitchen where various things were found. One should also note that everywhere in the kitchen is cluttered, and that is consistent with how many other areas of the kitchen are.

Laundry

I turn now to the laundry. The Agreed Facts contain this:

“15. That, on 4 September 2019 NSW Police located the following items in a laundry / bathroom of the Birchgrove premises:

15.1 A blue cooler bag (X0003584273). The interior of the cooler bag was swabbed and the swab identified cocaine, and indicated the presence of ecgonine methyl ester, methyl benzoate, lidocaine, and anhydroecgonine methyl ester. The blue cooler bag contained:
15.1.1 Two bags containing 57g and 80.4g of cocaine and one bag containing 41.4g of lidocaine (XD000120859).
15.1.2 A bag containing 683.0g of methylamphetamine (XD000120860).
15.1.3 A green bag containing two bags containing a total 2.08g of heroin and 0.28g heroin (XD000125410).
15.1.4 A block of 175.4g of heroin (XD000125409).
15.1.5 Two orange bags containing 49.6g of cocaine (XD000161561).
15.2 A ‘Bissell’ box (X0003584281) which containing the following:
15.2.1 A black cooler bag (X0003584277) was located. A tape lift was taken of the handles of the bag. The DNA recovered from the tape lift was a mixture from at least three individuals. The major contributor to this mixture has the same profile as Hyeon Joon Choi. The minor contributors were not suitable for comparison due to the low level. A swab taken of the interior of this bag contained cocaine, and indicated the presence of ecgonine methyl ester, lidocaine, cinnomoylcocaine, and anhydroecnine methyl ester. The black cooler bag contained the following:
15.2.1.1 A plastic container (X0003584274) was examined for fingerprints and the Accused Leung’s left little fingerprint could not be identified or excluded as the source of a latent fingerprint on the side of the container. The container held two further plastic contains inside:
15.2.1.1.1 A plastic container containing 35.6g of Methylamphetamine (XD000125408). The container was swabbed for DNA and DNA recovered was a mixture from at least three individuals. The DNA of Hyeon Joon Choi and Paul McCormick cannot be excluded as contributors to this mixture. Hyeon Joon Choi’s right middle fingerprint was also identified on the exterior of the container.
15.2.1.1.2 A plastic container containing 9.26g of MDMA (XD000125407). The container was swabbed for DNA. The DNA recovered was a mixture from at least three individuals. The DNA of Hyeon Joon Choi cannot be excluded as the major contributor and Paul McCormick cannot be excluded as the minor contributor to this mixture.
15.2.1.2 A plastic container (X0003584275). A fingerprint on exterior of the large rectangular clip lock container was identified as the left little fingerprint of the Accused Leung. The Accused Leung was unable to be identified or excluded as the source of another fingerprint on the container. This plastic container held two further plastic containers:
15.2.1.2.1 A plastic container containing 15.9g of cocaine (XD000125406).
15.2.1.2.2 A plastic container containing 39.5g of methylamphetamine (XD000125405).
15.2.1.3 A plastic container (X0003584276). A fingerprint on the exterior of the container was identified as the left middle fingerprint of the Accused Leung. This plastic container held two further plastic containers:
15.2.1.3.1 A plastic container containing 34.2g of cocaine (XD000125404). The container was examined for DNA and the DNA recovered was a mixture from at least three individuals. The DNA of Hyeon Joon Choi and Paul McCormick cannot be excluded as a contributor to this mixture.
15.2.1.3.2 A plastic container containing 58.5g of heroin (XD000125403). The container was swabbed for DNA and the DNA recovered was a mixture from at least three individuals. Hyeon Joon Choi’s DNA cannot be excluded as a contributor to this mixture. The DNA from the additional contributor(s) is not suitable for comparison due to low level.
15.2.1.4 A plastic container containing 64.2g of cocaine (XD000125402).

15.3 A stack of four plastic buckets with one of the buckets containing 1.22 grams of a compressed substance which contained cocaine (A024/XD000125401).
15.4 A gas camping stove (X0003584278).
15.5 Two rubber gloves (X0003584280). The interior of the rubber gloves were swabbed for DNA and a partial DNA was recovered. The partial DNA profile has the same DNA profile as the Accused Leung. A finger of the gloves was examined by a drug analyst (Paul) and no prohibited substance was detected on it.
15.6 A ‘Smart Link’ storage box (A003) containing:
15.6.1 ‘Scott’ profile half face APR respirator mask with filters (A004). The inside of the half face respirator was swabbed for DNA. The DNA recovered has the same DNA profile as the Accused Cameron Webster. The filter in the respirator was examined and no prohibited drug was detected.
15.6.2 ‘Protector’ goggles (A005). A tapelift of the interior strap of the safety googles was examined for DNA. The DNA recovered had the same DNA profile as the Accused Cameron Webster. A swab was taken from the exterior of the googles and no prohibited drug was detected.
15.6.3 Three black plastic funnels (A006). A swab of the top funnel contained cocaine.
15.6.4 A shopping bag containing a PVC pipe end cap and a sealed foodsaver bag containing a grey coloured grinding wheel (A007). The grinding wheel was examined and cocaine and levamisole was detected.
15.5.5 An open box of unused filter papers (A008).
15.5.6 Plastic bag knotted shut containing shredded paper (A009). The paper tested positive for cocaine.
15.5.7 Three plastic colanders (A010) with the top colander containing used paper filters. The substance on three of the filters was examined. Filter 1 contained 0.50g of powder containing cocaine. Filter 3 contained 1.55g of powder containing cocaine. Filter 7 contained 3.75g of powder which contained an estimated 1% cocaine.

15.6 A plastic storage container containing 2-propanol (isopropanol) with a gross weight 13,953g (A011).
15.7 A plastic storage container containing 2-propanol (isopropanol) (A012) with a gross weight of 3,398g.
15.8 A plastic storage container containing 2-propanol (isopropanol) (A013) with a gross weight of 11,330g.
15.9 A plastic storage container containing a small amount of sludgy dark grey liquid containing cocaine and indicated to contain iso-propanol (A014)
15.10 A Isoproponal plastic storage container containing a liquid containing less than 1% cocaine and indicated to contain isopropanol (A015) with a gross weight of 1,197g.
15.11 A hot plate with residue containing cocaine (A016).
15.12 A 20L pail with lid containing a liquid, with a gross weight of 9,627g. The liquid contained less than 1% cocaine and indicated the presence of isopropanol. (A017)
15.13 A 20L pail with lid containing a small amount of liquid and two plastic bags each containing moist shredded printer paper (A018). The liquid contained cocaine and indicated to contain isopropanol. The paper in both bags contained cocaine.
15.14 A 20L pail with lid containing a small amount of wet black solid and shreds of printed paper. A sample of the solid and paper contained cocaine. Iso-propanol was also indicated. (A019)
15.15 A 20L pail with lid (A020).
15.16 A 20L pail with lid (A021) with dark grey staining and shreds of moist printed paper. No prohibited substance was detected on a swab taken of this item,
15.17 A 20L pail with lid containing moist printed paper with text with a small amount of black solid (A022). The gross weight of the item was 934g. A sample of the paper and solid was found to contain cocaine.
15.18 A 20L pail with lid containing two moist mesh bags and numerous tied off mesh stockings containing a black solid. A piece of the mesh fabric containing the black solid contained cocaine and was indicated to contain activated charcoal. (A023)
15.19 A large metal paint stirrer (A025) with shredded printed paper attached. No prohibited substance was detected on a swab of this item.
15.20 A boiler and tubing attached to a condenser containing foil and a digital thermometer (A026). A swab taken from the inside of the boiler contained cocaine. A wash taken from inside the condenser contained cocaine. A fingerprint and a palm print on the exterior of the boiler were identified as the Accused Webster’s left ring fingerprint and left palm print.
15.21 A hydraulic press (A027). A swab taken from the press stage of the hydraulic press contained cocaine. No prohibited substance was detected on a swab of the press ram. A swab taken form the unwrapped star plate identified cocaine and lidocaine.

16. A swab taken from the wall behind the hydraulic press identified no prohibited substance.

17. A swab taken from the roof above the hydraulic press identified no prohibited substance.

18. A swab taken from the inside of the door identified no prohibited substance.

19. A swab taken from the exhaust fan in the room contained cocaine.”

I must make a number of comments on what was found. When first entered, most of the contents described in the Agreed Facts were packed up behind the entry door to the laundry. That door, as one enters the laundry, swings from right to left. The entry is in the western wall in the northwest corner of the wall. The northwest wall of the laundry is not straight. At its western end, it protrudes into the area which would otherwise be part of the kitchen. This protrusion is to allow entry into the laundry. There is some storage space in this protrusion, that is, the area behind the door when the door is shut. There was a further stacking, piling, or accumulation, of material along the northern wall of the laundry.
On the southern wall of the laundry are, from west to east, a toilet with a cistern above it, a wash basin for washing hands after using the toilet, a small window, and then the laundry tub. That tub is in a unit along the east wall of the laundry. From south to north, the east wall of the laundry is the laundry tub, a workbench area, and, at ground level rising to the benchtop, a front-loading washing machine. In front of the washing machine was a confined area allowing one access to the washing machine, including an area in which to place a washing basket. But there was then the end of the stack of the materials that were found in the laundry, that is, the eastern end of the stack of material.
Necessarily, the police search required the police to pull apart the piled-up material. At least one section of the piled-up items was covered by some type of fabric.
The Agreed Facts describe what is found. Agreed Fact 5.1 is photographed in Exhibit 3, section H3, p 1. Agreed Fact 5.1.1 is photographed in Exhibit 3, section H3, pp 4 and 5. Agreed Fact 5.1.2 is photographed in Exhibit 3, section H3, pp 2 and 3. Agreed Fact 15.1.3 is photographed in Exhibit 3, section H3, pp 6 and 7. Agreed Fact 15.1.4, is photographed in Exhibit 3, section H3, pp 8, 9 and 10. For Agreed Fact 15.1.5, I have been unable to find a photograph of this item. Agreed Fact 15.2, the ‘Bissell Box’, is photographed in Exhibit 3, section H4, pp 11, 12 and 13. Agreed Fact 15.2.1, referring to a black cooler bag, is photographed in Exhibit 3, section H4, p 14. Agreed Fact 15.2.1.1, referring to a large rectangular clip lock box, is photographed in Exhibit 3, section H4, pp 15, 16 and 17. Agreed Fact 15.2.1.1.1, referring to a smaller square rectangular clip lock box found within the larger rectangular clip lock box, is photographed in Exhibit 3, section H4, pp 18 and 19.
Agreed Fact 15.2.1.1.2, referring to a second smaller square clip lock box contained within the larger rectangular clip lock box, is photographed in Exhibit 3, section H4, p 20. Agreed Fact 15.2.1.2, referring to a large rectangular clip lock box, is photographed in Exhibit 3, section H4, pp 21 to 25. Agreed Fact 15.2.1.2.1, referring to a smaller square clip lock box found within the preceding large rectangular clip lock box, is photographed in Exhibit 3, section H4, p 27. Agreed Fact 15.2.1.2.2, referring to a second smaller square clip lock box found within the second larger rectangular clip lock box, is photographed in Exhibit 3, section H4, p 26. Agreed Fact 15.2.1.3, referring to a third large rectangular clip lock box, is photographed in Exhibit 3, section H4, pp 28, 29 and 30. Agreed Fact 15.2.1.3.1, refers to a smaller square clip lock box contained within the third large rectangular clip lock box, is photographed in Exhibit 3, section H4, pp 32, 33. Agreed Fact 15.2.1.3.2, referring to a second smaller square clip lock box contained within the large rectangular clip lock box, is photographed in Exhibit 3, section H4, p 31. Agreed Fact 15.2.1.4, referring to a small square clip lock box, is photographed in Exhibit 3, section H4, pp 34 and 35.
I have thus far in this section identified seven small square clip lock boxes. Three of the small square clip lock boxes, one found in each of two larger rectangular clip lock boxes, and the third being the last small square clip lock box, I just identified, had labels on them. The three labels are “Skincare”, “Scampi”, and “Squid”. Those labels indicate that prior to being used for the storage of drugs, they were being used for innocent domestic uses, storage of skincare products, and storage of food items. These labels are best seen in Exhibit 31.

Agreed Fact 15.3, is photographed in Exhibit 3, section H4, p 36. Agreed Fact 15.4, referring to the “Campmaster” brand stove, is photographed in Exhibit 3, section H4, p 39. This may be the subject of Exhibit 22 (I emphasise “may” as this is uncertain). There was a receipt found in a bag of documents related to “Pawfect Pooches” for the purchase of a stove and a set of four cartridges, showing same bought at Big W at Top Ryde on 11 May 2019. The finding of that receipt in that bag may be pure coincidence.
Agreed Fact 15.5, referring to gloves commonly used in a household if washing up is done by hand or when cleaning, is photographed in Exhibit 3, section H8, p 40. The gloves were found in the laundry where washing agents and implements and aids are commonly found. Both the laundry tub, the laundry workbench, the toilet, and the hand basin, would need cleaning from time to time. It is unsurprising that the First Accused’s DNA might be found in a pair of such gloves. It is of greater moment that no prohibited substance was detected thereon. As a piece of circumstantial evidence, it has no utility whatever.
Agreed Facts 15.6.1 and 15.6.2 refer respectively to a respirator mask and goggles each containing the Second Accused’s DNA. The Crown stresses the significance of these finds. A photograph of the respirator which has been labelled by the chemical operations group as 040919BIRA004 can be seen in a photograph in Exhibit 3, section H11, p 43. A photograph of the goggles, given chemical operations label 040919BIRA005, can be found in Exhibit 3, section H11, p 44. These items appear to me to be new. They so appeared to Dr Coghlan, the expert called in the Crown case (see his evidence at T84.14 to T84.20). As that piece of oral evidence shows no prohibited substances were detected on or in either item. In re-examination Dr Coghlan gave this evidence:

“Q. You’ve been asked a question about the fact that no prohibited drug is detected on the outside of the goggles. If the goggles had been cleaned, would you expect prohibited drugs to be detected?

A. If they had been cleaned, no, we wouldn’t detect the drugs.

HIS HONOUR

Q. It’d depend on how rigorous the cleaning was, wouldn’t it?

A. It depends....if the cocaine was in the hydrochloride form, just by rinsing thoroughly in water would remove all traces of the cocaine. It’s very soluble in water.”

The problem with that evidence is that cocaine has two types, cocaine base and cocaine hydrochloride: see T84.22. No testing was done on any of the cocaine to determine what type it might have been. Does cocaine base easily wash off or wash out of the filter? The evidence is completely silent. For all anyone knows, the Second Accused may have come across those items lying around somewhere in the townhouse and tried them on out of curiosity. There is no direct evidence that the Second Accused used them in the process of manufacturing cocaine. This is just another piece of circumstantial evidence.

Agreed Fact 15.6.3 is photographed at Exhibit 3, section H11, p 45. Agreed Fact 15.6.4 is photographed at Exhibit 3, section H11, pp 46 and 47. Agreed Fact 15.6.5, photographed at Exhibit 3 section H11 p 48. Agreed Fact 15.6.6 is photographed at Exhibit 3 section H11 p 49. Agreed Fact 15.6.7 is photographed at Exhibit 3, section H11 pp 50 and 51.
Agreed Facts 15.6.8 to 15.6.10 refer to large 20-litre containers, square in shape, each described as being partially filled with isopropanol, also known as isopropyl alcohol.
Agreed Fact 15.11 is photographed at Exhibit 3, section H11, p 57. Agreed Fact 15.12 is photographed at Exhibit 3, section H11, pp 59, 60 and 61. Agreed Fact 15.14 is photographed at Exhibit 3, section H11, pp 62 and 63. Agreed Fact 15.5 is photographed at Exhibit 3, section H11, p 64. Agreed Fact 15.6 is photographed at Exhibit 3, section H11, p 65. Agreed Fact 15.7 is photographed at Exhibit 3, section H11, p 66. Agreed Fact 15.18 is photographed at Exhibit 3, section H11, pp 67, 68 and 69. Agreed Fact 15.19 is photographed at Exhibit 3, section H11, p 71. Agreed Fact 15.20 is photographed at Exhibit 3, section H11, pp 72 to 79.
The fingerprint and palm print of the Second Accused disclose that he has handled the still part of the boiler, that is, the bottom part, not the part with the brass condenser on the middle. At some stage after the Second Accused handled it, it had been placed in the box shown in photograph 72, from which it was extracted during the search. The handling could have been as late as placing the still in the box.
Agreed Fact 15.21 is photographed at Exhibit 3, section H11, p 80 and 81. Agreed Fact 16, referring to the area swabbed behind the hydraulic press, is photographed at Exhibit 3, section H12, p 82. Agreed Fact 17 refers to the swabbed area of the ceiling above the hydraulic press, photographed in Exhibit 3, section H12, p 84.
Agreed Fact 18, referring to the area swabbed on the back of the door into the laundry, is photographed at Exhibit 3, section H12, p 83 (assuming that the door was shut during the extraction of the drug in the laundry).
Agreed Fact 19 is photographed at Exhibit 13, section H12, p 85, showing where the ceiling fan was and/or the area swabbed. The ceiling fan appears to me to be about two-thirds of the ceiling from the door, and therefore one-third of the ceiling from the eastern or laundry tub wall.

The Mercedes-Benz

I turn now to the searching of the Mercedes-Benz motor car. This motor car was parked on Water Street at the front of the Premises, and it belongs to the First Accused. Exhibit 21 is a copy of the contract for the purchase of the vehicle dated 18 May 2018. Exhibit 23 is a document of the same date whereby finance was given to the First Accused to complete the purchase.
An amount of cash, $2,000, was found in the vehicle. A photograph of the cash is in Exhibit 3, item I, p 1. It ought be noted that during the recording of this vehicle search, the noise made by children in a playground at the nearby Birchgrove Public School, during the School’s luncheon break, can easily be heard.
The Agreed Facts do not describe the search of the Mercedes-Benz.

The search of under the stairs and on the lower floor of the Premises

The Agreed Facts do not describe the search of the area under the stairs, nor the area on the lower floor of the townhouse. The police found no items of interest to them, and nothing was seized from that space. They did, however, appear from the film of the search to find many boxes of shoes and packaging from shopping. In submissions, Madam Crown said this:

“[Leung] had extensive personal property. As seen in [video clip] C13, she had not less than 16 designer handbags, Chanel, Louis Vuitton, to name a couple. As one of the officers comment in the execution of the search warrant, $100,000 worth of property. Also seen--

HIS HONOUR: How do we know that they are designer handbags? It is very common for these items to be the subject of replication by the unscrupulous, especially in various parts of Asia and, no doubt, because of her role as a cabin crew member for Qantas, she was travelling extensively throughout the world and in an easy position to pick up a replica of this, that and the other thing at any part of the world. I mean, I’ve got no hard evidence other than a few boxes to say that these are really designer handbags rather than relatively cheap replicas.

CROWN PROSECUTOR: Yes.

HIS HONOUR: And the same can apply to the shoes.

CROWN PROSECUTOR: I’ll say this about them, the fact - the bags - there were boxes that are consistent with them being legitimate designer items. There were also shopping bags from the same designers found. When you buy a fake, you don’t get that kind of stuff.

HIS HONOUR: I don’t know. I don’t buy handbags and shoes.

CROWN PROSECUTOR: Without giving evidence from the bar table, I won’t say more than that, your Honour, but they have all the accoutrements of being legitimate. There were also mountains of clothes, and as your Honour may have noticed, when they were being gone through by the police, a lot of them had tags still on them and as--

HIS HONOUR: Some ladies have a real propensity for acquiring clothing and shoes and, et cetera, and if you’re travelling the world and pick up things cheaply or if you’re in London when it’s sale time or San Francisco when it’s sale time, whatever, you might be able to make a few killings.

CROWN PROSECUTOR: True, but the sheer volume--

HIS HONOUR: It isn’t necessarily consistent with having some illegitimate source of income.

CROWN PROSECUTOR: The Crown would say the sheer volume of it, the nature of the items, the fact that they are seen with the boxes and accoutrements, the bags, the shopping bags that are supplied by legitimate operators, would tend to suggest that these a high-end market items. One also had to keep in mind that she was cabin crew.

HIS HONOUR: The?

CROWN PROSECUTOR: She was - her only form of legitimate employment was cabin crew, not consistent with the volume of items that were seized. After all there were at least - there were boxes and boxes and boxes of designer shoes, Ferragamo, Dior, Chanel, Mooie Mooie, Prada, which appear never to have been worn. They still had the sticks that hold them in shape. They were still wrapped in the complete packaging. The Crown would say that this is evidence that might suggest that she benefited from what was going on and therefore, permitted to occur.”

In an aide memoir, MFI-17, Mr Boe and his Junior asked me to ignore, what they submitted was, evidence from the Bar Table. I do so. Further, the NSW Police Officer’s comment recorded in the video of the search is an opinion which he was not entitled to make and I disregard it. Without a proper valuation, and without certification of originality, I can place no real significance on the value of shoes and handbags.

Indictment

I believe, at this stage, that I should turn to the indictment. The indictment is in the following terms: The accused have been arraigned on an indictment containing eight counts. That indictment is this:

between 5 April 2018 and 5 September 2019, at Birchgrove in the State of New South Wales, the Second Accused manufactured an amount of a prohibited drug, namely cocaine, which was not less than the commercial quantity of that prohibited drug;

between 5 April 2018 and 5 September 2019, at Birchgrove in the State of New South Wales, the First Accused knowingly took part in the manufacture of an amount of a prohibited drug, namely cocaine, which was not less than the commercial quantity of that prohibited drug;

In the alternative to Count 2, between 5 April 2018 and 5 September 2019, at Birchgrove in the State of New South Wales, the First Accused, believing that a serious indictable offence had been committed, namely, the manufacture of an amount of a prohibited drug, namely, cocaine which was not less than the commercial quantity applicable, and believing that she had information that might be of material assistance in securing the apprehension, prosecution or conviction of the offender for that offence, failed without reasonable excuse to bring that information to the attention of a member of the NSW Police Force;

on 4 September 2019, in Birchgrove in the State of New South Wales, the First Accused and the Second Accused did supply an amount of a prohibited drug, namely, cocaine being an amount which was not less than the commercial quantity applicable to that prohibited drug;

on 4 September 2019, at Birchgrove in the State of New South Wales, the First Accused and the Second Accused did supply an amount of a prohibited drug, namely, MDMA being an amount which was not less than the large commercial quantity applicable to that prohibited drug;

on 4 September 2019, at Birchgrove in the State of New South Wales, the First Accused and the Second Accused did supply an amount of a prohibited drug, namely, methylamphetamine being an amount which was not less than the large commercial quantity applicable to that prohibited drug;

on 4 September 2019, at Birchgrove in the State of New South Wales, the First Accused and the Second Accused did supply an amount of a prohibited drug, namely, Heroin, being an amount which was not less than the traffickable quantity applicable to that prohibited drug; and

on 4 September 2019, at Birchgrove in the State of New South Wales, the Second Accused did supply of amount of a prohibited drug, namely, GBL being an amount which was not less than the commercial quantity applicable to that prohibited drug.

The Crown case - manufacture

The Crown case is framed around an allegation that between 30 July 2019 and 4 September 2019 as far as the Second Accused is concerned, or between 5 April 2018 and 4 September 2019 as far as the First Accused is concerned, the manufacture of cocaine at these Premises was conducted.
Manufacture is defined in s 3 of the Drug Misuse and Trafficking Act 1985 to include the process of extracting or refining the drug in question. The process relied upon by the Crown has been described by Dr Coghlan in his evidence. The process has a number of steps:

paper impregnated with cocaine was imported into Australia. Other substances commonly found impregnated in that fashion are towels, nappies, and clothing, however none of those other methods were used at the Premises;

the paper was then shredded using the paper shredding machine found in bedroom 3. There were remains of paper which had been impregnated with cocaine found within that shredding machine;

the shredded paper was then steeped in the isopropanol, which was used to draw out the cocaine from the paper. The process could last for hours. The pails, or buckets, were used for steeping the shredded paper in the isopropanol;

the still was then connected to a power source so it could be turned on. On top of the still is a condenser, a brass metal object on the lid, and that needed to be connected firstly to a water source, and secondly to an outflow. In other words, water was to be drawn from a tap and drained off into a sink. The still was then turned on and the isopropanol was driven off. According to Dr Coghlan, a cutting agent would then be employed. I assume that once the isopropanol was driven off, the residual material would have been cocaine, perhaps in some liquid or not completely solid state. That fluid would then need to be thoroughly dried out; and

one can see from the description that I have given, that leaving aside the question of paper impregnated with cocaine, there were the items necessary for carrying out such an extraction found within the Premises. There were pails or buckets in which shredded paper could have been placed. There were sources of isopropanol which could have been tipped into buckets into which shredded paper had been placed. As I have already pointed out, there was a shredding machine there which could be used to facilitate the shredding of paper. There was the still with the condenser on its lid which could have been employed. I am not aware of how the condenser would have been linked to a tap and the other end of the condenser tied to a sink. There was a large paint stirring item which could be used no doubt to stir up the shredded paper in the isopropanol to quicken the process of the isopropanol drawing the cocaine from the paper.

There was also evidence of cocaine in some liquid state being dried out, perhaps in the oven or perhaps by the use of the two stoves that I have described being used to heat the final content of the still after the isopropanol had been driven off. It is of course possible that also the food dehydrator may have been used to dry out the drugs at the end of the process of the distillation.
The question then becomes: what evidence is there that that process had been carried out at Birchgrove? The Court is aware of cases of a similar nature, and there are many different ways of manufacturing different drugs. For example, the manufacture of methamphetamine is quite different to the system here used to extract or refine cocaine which had been originally impregnated in paper.
A manufacturer of a drug (otherwise known as a “cook”) may have a “kit”, that is, all the items necessary to carry out the production process. However, the “kit” can be moved from place to place. This is done to make it harder for the authorities to find out where it is, and to intercept it. Sometimes, a manufacturer will take the “kit” to a place, carry out a production or extraction at that place, then pack up the “kit” and move back to the place whence he came, or to some third place, thus seeking to avoid detection by the authorities.
It is quite possible that all the material found at Birchgrove had not been used at Birchgrove to conduct an extraction of cocaine there, but may have been used elsewhere, then brought to Birchgrove. That takes me back to a question I earlier asked: what evidence is there to say that a manufacturing process had been conducted at Birchgrove?
At the end of Dr Coghlan’s evidence-in-chief, he was asked this question by the Crown Prosecutor, and the following answer was given:

“Q. Based on the evidence referred to in your report, are you able to offer any opinion about whether the extraction of cocaine occurred at this particular premises?

A. No, I’m not.”

Very gallantly, Counsel for the defence pointed out to Dr Coghlan that there was one piece of evidence which might link the extraction of the cocaine to the Premises, namely the cocaine detected in the extraction fan. In cross-examination by Mr Boe, Dr Coghlan gave this evidence:

“Q. If cocaine was being handled in the laundry unrelated to manufacture, is one explanation for it being [on] the exhaust fan and not on the walls… that dust is being taken out by the exhaust fan operating?

A. If you’re talking about fine dust I would still expect to see it in other areas in that laundry. If it was a fine dust it would still be on some walls but it would be closer to where the cocaine powder was being handled”.

A little later, Mr Boe put this question and received this answer:

“Q. ...I’m exploring, if I may, reasonable possibilities for those two events. Not on walls, not on ceiling, not on door, but only in the exhaust: is one possible explanation that there’s handling of cocaine exposed, or movement of cocaine exposed, to the atmosphere, hence the concentration of it being extracted?

A. It’d have to [be] close - where that movement was would have to [be] close to the extraction fan rather [than] to the...walls and the doors were. So yes, in that case”.

In other words, the fact that cocaine was found in the extraction fan in the laundry merely means that some cocaine may have been exposed to the atmosphere near the extractor fan, which would explain why there was no cocaine found in the other areas of the laundry that were swabbed, that is, the areas that are disclosed in the material that I have already discussed.
Counsel have pointed out that it is possible, of course, that somebody smoked cocaine in the laundry and that cigarette smoke or smoke containing particles of cocaine have been carried up into the exhaust fan.
The other problem is that there is no evidence as to how much cocaine was found in the exhaust fan. The work done by Forensic and Analytical Science Service (“FASS”) does not enable the load of the cocaine to be determined. There may have only been a few atoms of the drug present when the area was swabbed. There may have been, however, a much larger amount of cocaine, but the evidence does not enable one to know how much cocaine was found there.
There are a number of problems with the Crown case as a whole. For example, only one cutting agent was found during the search, lidocaine. One of the items found in the laundry was also found to have traces of another cutting agent, levamisole, however, when one looks at the drugs actually detected, there were various amounts of cocaine that were found with other cutting agents.

Antecedent to that, the Crown says that because of the intimate nature of the relationship of the First Accused to Mr Choi, the First Accused must have been aware that at all relevant times Mr Choi was on parole after being convicted of an offence of conspiracy to import narcotic drugs into Australia, as a result of which he had been sentenced to imprisonment for 20 years.
The Crown also says that she must have known what was going on because of the ready amounts of cash available to her, and the nature of some of her possessions, namely, designer handbags and designer shoes, and a large wardrobe, which the Crown submitted were all consistent with her gaining some form of income from the illicit drug trafficking which was occurring, and that therefore she must have known about the production of the cocaine that was being carried out at some stage in the Premises.
For the same reasons given earlier in connection with the allegation in count 1 against the Second Accused, I am not satisfied that the Crown has proved beyond a reasonable doubt that the manufacture of cocaine was carried out at the Premises during any requisite period of time. The Premises as found are consistent with the storage of “kit”, for the manufacture of cocaine, in the laundry, and the Crown has failed to exclude that as a reasonably correct view of the facts. Therefore the Crown has failed to prove that the actual manufacture of cocaine occurred at the Premises.
If I be wrong in that regard, then one must consider the nature of the occupation by the First Accused, of part, at least, of the Premises. As I have sought to show, she was living there by the grace and favour of Mr Choi, with whom she was in an intimate relationship. For a year and a half prior to the execution of the COSW on 4 September 2019, she had been sharing the master bedroom of that townhouse with Mr Choi. She occupied one side of the large bed in the master bedroom, and Mr Choi used the other half of the bed. They were living together, essentially, as a couple in a romantic relationship, but there was no legal bond, i.e. through marriage, and therefore no implied requirement that Mr Choi support the First Accused (whether the First Accused had rights based on a potential de facto status is not relevant to these proceedings).
The First Accused’s ability to stay in the flat depended upon the nature of her relationship with Mr Choi. Should, for any reason, the relationship break down, Mr Choi was probably entitled to eject the First Accused from the Premises, or to come to some new arrangement with her, for example, to permit her to continue to reside in the townhouse but only if she occupied, for example, bedroom 3 and paid rent to Choi, who had the tenancy, and the concomitant legal rights emanating therefrom, from the landlord at all material times.
The First Accused had no such proprietary and legal rights over the Premises. Compared to Mr Choi, she could not prohibit him doing anything that he wished to do in the Premises. It was up to him where she slept, it was up to him as to when she could be there, it was up to him as to what she might bring into the Premises, it was up to him in his discretion to admit others such as the Second Accused to reside there, or to allow others to store material there if they wished to do so.
Even if I be wrong as to whether a manufacture occurred at the Premises, I again point out that if the manufacture was carried out by Mr Choi that, compared to Mr Choi, the First Accused had no right to prevent him doing so other than as a normal citizen who was aware of some crime being committed.
The Crown submitted that the First Accused was involved in the “management” of the Premises, but that was only a role that she may have adopted as Mr Choi’s partner, as somebody whom he permitted to act on his behalf when, for example, he was not present or when, for example, he was present but she was doing something which he permitted her to do.
If there had been a manufacture of cocaine at the Premises of which she knew, then it could well be argued that if she were there, she was suffering it to occur. But she certainly was in no position to demand that Mr Choi stop doing what he was doing.
As I understand it, in respect of count 3, the allegation made by the Crown, of which the First Accused is aware, is that the manufacturing was being carried out either by the Second Accused or by Mr Choi. One would think logically that the same particulars must be available in respect of count 2.
I have acquitted the Second Accused on count 1. I am not persuaded beyond reasonable doubt that he participated in the manufacture of cocaine at the Premises in the period between 30 July 2019 or 4 September 2019, nor could I have been satisfied he had done so at any time prior to going overseas on or about 15 or 16 June 2019 because that would be mere speculation. It is easier to prove that something occurred closer to the time when the evidence is found which the Crown relies upon to seek to establish that fact. Therefore, the only allegation available to the Crown is that Mr Choi carried out the manufacture. However, the Crown must prove that the First Accused had actual knowledge of the manufacture, and that the manufacture was of the prohibited drug cocaine, and that at least 250 grams of that drug were manufactured.
There is no direct evidence of any of those three facts. In essence, the Crown wishes me to deduce that, because she was living at the Premises, the First Accused must have known what was going on as she, therefore, must have known that 250 grams of cocaine had been manufactured there by extracting the drug from paper impregnated with it, and extracting that drug from the paper, and otherwise refining it into a form which could be sold.
However, I again point out that the First Accused was a member of the Qantas International Cabin Crew. She regularly travelled overseas for days at a time, and Mr Choi could have done anything in her absence of which she would not have known. Equally, Mr Choi could have persuaded the First Accused that what was stored in the laundry was merely being stored there with his knowledge because of his relationships with Luke Yeom or Paul McCormick or both.
The First Accused has not given evidence. She is not required to do so. She is permitted to require the Crown to prove the case against her beyond reasonable doubt. I know very little about her other than: (1) the fact of where she was born, which the evidence establishes was in Hong Kong; (2) her age; (3) her employment with Qantas; (4) the fact that she was the driver of a Mercedes Benz motor car; (5) the fact that she also had a business called “Pawfect Pooches”, in which she was heavily involved with at least from 5 June 2019 when, according to Exhibit 18, she last returned to Australia from an overseas trip (as I understand it she was on leave from that time up until the time of the execution of COSW).
I know nothing of the First Accused’s character. I do not know how observant she is. I do not know how suspicious she might be. I do not know to what extent she might observe the activities of others and have some questions about what they might be doing.
Some people go through this world like Voltaire’s Candide, believing that only good things happen and that all is right in the world. Others go through life simply believing that everything is the result of malice, conspiracy, and fraudulent activity, without conceding that often things happen fortuitously or through mere negligence. Some people are inherently naïve, some people are inherently suspicious, but where the First Accused stands in that spectrum I do not know.
The other thing that I have to bear in mind is that the three occupiers at the relevant time at the townhouse were: Mr Choi, who was born in Seoul, a South Korean National; the First Accused, who was born in Hong Kong, and one would infer is ethnically Chinese (to what extent her upbringing was in Australia I do not know); and then the Second Accused, who one infers was probably a native born Australian, but clearly of a western culture, and one would think, with his name, perhaps of Scottish background. To what extent there may be differences in approach between the three housemates, I do not know. The First Accused may have felt that what Mr Choi was doing was nothing untoward, or if she thought it was untoward, given her cultural background, she may have believed it was not untoward in his cultural background. Again, these are things I do not know.
Accordingly, I am not satisfied beyond reasonable doubt that the Crown has proved either the fourth or fifth elements of the offence alleged in count 2 of the indictment against the First Accused. I am not persuaded beyond reasonable doubt, firstly that there was a manufacture of cocaine at the Premises during the period in question, from 5 April 2018 to 5 September 2019, and not the period between 30 July 2019 and 4 September 2019 (the period pressed against the Second Accused).
However, I again point out I am not satisfied that during that period that there was a manufacture or production of cocaine, and I am not persuaded that during that period the First Accused knew that it had taken place and suffered or permitted it to occur as alleged. For those reasons, the First Accused is entitled to be acquitted in respect of count 2.
I should also add that it has not been proved beyond reasonable doubt that she knew that the amount of cocaine was the commercial quantity, namely 250 grams, and that she knew that at least 250 grams had been manufactured.

Count 3

I turn to count 3. The elements of count 3 are these:

the First Accused was an adult;

that between 5 April 2018 and 4 September 2019;

at Birchgrove;

the First Accused knew, or believed, that another person had committed a serious indicatable offence;

that the First Accused had information which might have been of material assistance in either securing the apprehension of the person, or secondly, in the prosecution or conviction of that person for the offence;

that the First Accused failed to bring that information to the attention of a member of the Police Force, or some other appropriate authority; and

that the First Accused did make that failure without reasonable excuse.

Consideration – Count 3

According to the Crown case statements, the allegation was that the person who committed the serious indictable offence was either the Second Accused or Mr Choi, or both.
As to the first element, the First Accused admitted, in an electronically recorded interview, a copy of which is Exhibit 16, and the transcript of which is MFI 12, that she was born on 31 January 1981. She would have attained her majority on 31 January 1999, and therefore between 5 April 2018 and 4 September 2019 she was an adult.
The third element, and in my view the second element, all relate to the offending rather than the period in which the First Accused had the knowledge or belief required, and as to where she may have been when she had the knowledge or belief. A human being moves from place to place and, clearly, the First Accused intermittently moved overseas as required by her employment. The date range and locus contained in the indictment must be attributable to the offending conduct, which she is alleged to have known of or believed in.
As to the fourth element, the Crimes Act 1900 s 4 defines a “serious indictable offence” to mean an indictable offence that is punishable by imprisonment for life or for a term of five years or more. The exception to that definition, contained in s 316(6) of the Crimes Act 1900, is inapplicable. The offence relied upon by the Crown is the manufacture of the prohibited drug cocaine in not less than the commercial quantity, the maximum penalty for which is imprisonment for 20 years and/or a fine.
Here the Crown has failed to prove beyond reasonable doubt that there was a manufacture between 5 April 2018 and 4 September 2019 at Birchgrove of a commercial quantity of the prohibited drug cocaine. She could not know or believe of that manufacture if it did not occur during that period in that place.
There is a difference between the offence pleaded in count 3 in the indictment and the common law offence of misprision of felony. In Wilson v Director of Public Prosecutions [2017] NSWCA 128 Meagher JA said at [31]:

“The NSW Law Reform Commission in its Report 93: Review of s 316 of the Crimes Act 1900 (NSW), presented in December 1999, described the background to the enactment of s 316 as follows:

2.1 Section 316 is part of a package of public justice offences which was inserted into the Crimes Act 1900(NSW) in 1990. The purpose of the package was to create a comprehensive statement of the law relating to public justice offences which, until the enactment of the amendments, was “fragmented and confusing, consisting of various common law and statutory provisions, with many gaps, anomalies and uncertainties”.
2.2 Section 316 replaced the common law misdemeanours of misprision of felony and compounding a felony. Misprision of felony consisted of knowing that a felony had been committed, and failing to disclose that knowledge to those responsible for the preservation of the peace within a reasonable time, and having had a reasonable opportunity to do so. Compounding a felony was constituted by agreement for consideration not to prosecute or to impede prosecution for a felony.”

Misprison of felony consisted of knowing that a felony had been committed. Under s 316, upon which count 3 is based, the liability for the crime has been increased from knowing that another person had committed a serious indictable offence, but to believing that another person had committed a serious indictable offence. The verbs “knew” and “believed” are joined by the disjunctive “or”, not the conjunctive “and”. In this respect, s 316 is a more expansive than the common law crime of misprison of felony.

However, belief cannot be given any meaning at all that one might think of. For example, I had one litigant in criminal proceedings before me who believed in a Deity called the “Flying Spaghetti Monster” (in fact, he claimed to be a member to a Church who worshipped that deity), and the fact that he believed in that would not mean that it was correct: see R v Wass [2021] NSWDC 414. Equally if one went to a police station and said “I believe that there is the production in the residence next door to my own of a commercial quantity of a prohibited drug because I can smell something that is off”, the police might want the complainant to provide much more intelligence than a mere offensive smell or odour.
One must have, in my view, to be guilty of an offence under s 316, a belief based upon reasonable grounds. However, that is an unnecessary gloss because, as I said, I am not persuaded beyond reasonable doubt that there was the manufacture of a prohibited drug in the commercial quantity at the Premises by either the Second Accused, who I found not guilty of the offence, or by Mr Choi, because all that the Crown has proved is that a manufacturing kit was stored in the laundry at the Premises.
The Crown has not told me exactly what information the First Accused had which may have been of material assistance to, for example, the police in securing the apprehension of, for example, Mr Choi, or in the prosecution or conviction of Mr Choi for the offence. I say that advisedly, because the Crown wishes me to infer a large number of things from the fact that the cocaine manufacturing kit was found in the laundry of the Premises, as were certain drugs at the time of the execution of the COSW, and that therefore the First Accused must have known what was going on. Again, that is really an allegation of suspicion, and the Crown has failed to prove what it was that the First Accused believed and how she could communicate it to, for example, the police.
The question that arose as to what reasonable excuse she might have, and one wonders whether an excuse of “if I dob Mr Choi in, I might lose my place of abode” might have on the tribunal of fact, and what legal implication it is. For example, at common law, a wife could not inform against her husband quia sunt duae animae in carne una: Sir Edward Coke, The First Part of the Institutes of the Lawes of England. Or, a Commentarie Upon Littleton, Not the Name of a Lawyer Onely, but of the Law It Selfe (1st ed, 1628) 6b. Whether that old common law rule remains is a moot point not, fortunately, calling for determination in these proceedings. Accordingly, the First Accused is entitled to be found not guilty of count 3 in the indictment.

Count 4

Counts 4, 5, 6 and 7 were jointly against both First Accused and the Second Accused. The essential elements of count 4 are that:

the First Accused;

on 4 September 2019;

at Birchgrove,

supplied, or knowingly took part in the supply, of;

cocaine;

in an amount which was not less than the commercial quantity of cocaine, being 250 grams; and

the First Accused knew that the amount of cocaine supplied was not less than 250 grams: R v Kuroz [2020] NSWDC 427 at [12].

As to the fourth element, that is defined in s 3 of the Drug Misuse and Trafficking Act to include the selling and distributing, and also included agreeing to supply, or offering to supply, or keeping, or having in possession for supplying, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.
Section 29 of the Drug Misuse and Trafficking Act must also be borne in mind. That provides that:

“A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless…”

The traffickable quantity of cocaine is 3 grams.

Consideration – Count 4

As I pointed out when dealing with the count against the Second Accused in bedroom 1 were found 0.39 grams of cocaine, in bedroom 2 were found 0.1 grams of cocaine, and in bedroom 3 were found 209.23 grams of cocaine. In the home office area on the upper level of the townhouse were found 17.98 grams of cocaine. In the kitchen were found 310.1 grams of cocaine, and in the laundry were found 301.3 grams of cocaine.
I pointed out earlier that of the 0.39 grams found in bedroom 1, either all of that amount of cocaine was found in the wardrobe being used by the First Accused. There were three packages found, two of which were in her coat, however the other one I was not quite sure which side of the wardrobe it came from. I have earlier pointed out that the 0.08 grams of cocaine may not have come from the First Accused’s wardrobe, but rather the wardrobe that was being used by Mr Choi.
The cocaine found in bedroom 2 was clearly cocaine which belonged to the Second Accused.
The only way in which the Crown alleges that the cocaine found in bedroom 3, in the home office upstairs, in the kitchen, and in the laundry, was because the First Accused must have known that the cocaine was being manufactured at the Premises, or at least being stored at the Premises.
Consistently with what I have earlier found, I am not persuaded beyond reasonable doubt that the cocaine was manufactured at the Premises. The question then becomes did the accused know of its presence? The evidence of that, if any, is scant.
Again, the most that the Crown can point to are things such as DNA and fingerprints on containers which may have been found to contain drugs but, as I pointed out, there is no evidence that the fingerprints or DNA were placed on the container at the time that the drugs were placed in it. The containers were all domestic containers that could have been used, or were in fact being used, for domestic purposes, and were taken over by those involved in drug trafficking, in particular, probably, by Mr Choi.

In the circumstances, it cannot be established beyond reasonable doubt that the First Accused knew that the drugs were in the Premises and, therefore, that she possessed them for the purpose of supply. Knowledge of them is the first thing that the Crown must prove and that has not been proved beyond reasonable doubt. The First Accused is entitled to be acquitted in respect of count 4.

Count 5

The elements of count 5 are thess, of which the Crown must prove beyond reasonable doubt each of the following:

the First Accused;

on 4 September 2019;

at Birchgrove;

supplied, or knowingly took part in the supply of;

MDMA;

in an amount which was not less than the large commercial quantity of MDMA, being 500 grams; and

knew that the amount of MDMA supplied was not less than 500 grams.

Again, the case law concerning the requirement of knowledge I need not repeat, nor need I repeat the definitions contained in s 3, or s 29, of the Drug Misuseand Trafficking Act 1985.

Consideration – Count 5

Like most of the other drugs, no MDMA was found in bedroom 1. MDMA was found in bedroom 2, which I have held to have been possessed for deemed supply by the Second Accused. There were found in bedroom three 1,364.37 grams of MDMA, in the home office 0.44 grams of MDMA, in the laundry 9.26 grams of MDMA. The vast majority of the MDMA found was in bedroom 3.
Again, there is no evidence that persuades me beyond reasonable doubt that the First Accused knew of the presence of this drug in the Premises. Without evidence of her knowledge of the drug it cannot be alleged that she possessed it for the purpose of supply. The First Accused is accordingly entitled to be found not guilty of count 5.

Count 6

I turn to count 6. The Crown must prove beyond reasonable doubt each of the following seven elements:

the First Accused;

on 4 September 2019;

at Birchgrove;

supplied, or knowingly took part in the supply of;

methylamphetamine;

in an amount which is not less than the large commercial quantity of methylamphetamine, being 500 grams; and

knew that the amount of methylamphetamine supplied was not less than 500 grams.

Again, I do not repeat the case law concerning the requirement of knowledge of the amount of the methylamphetamine, nor do I repeat the definition of supply in s 3, or s29, of the Drug Misuse and Trafficking Act.

Consideration – Count 6

No methylamphetamine was found in either bedroom 1 or bedroom 2. 27.37 grams of methylamphetamine were found in bedroom 3, 0.14 grams of methylamphetamine were found in the home office area, an area that I have previously pointed out appears to have been occupied solely by Mr Choi. In the laundry there were three lots of methylamphetamine, in total amounting to 758.1 grams of that drug.
Again, there is no evidence linking the First Accused to methylamphetamine. Again, the Crown must prove that the First Accused knew of it in order to prove that she possessed it, and then that she possessed it for the purpose of supply. Supply is, of course, deemed because of the quantity of the drug, but, again, there is no evidence before me which persuades me beyond reasonable doubt that she knew of its presence in the townhouse in which she was living with Mr Choi and the Second accused immediately prior to the execution of the COSW.

Count 7

For the final count, count 7, the Crown must prove beyond reasonable doubt each of the following elements;

the First Accused;

on 4 September 2019;

at Birchgrove;

supplied, or knowingly took part in the supply of;

heroin;

in an amount which was not less than the trafficable quantity of heroin, being 3 grams; and

knew that the amount of heroin supplied was not less than 3 grams.

Again, I do not repeat the case law, or the statutory enactments, which refer to counts 4, 5,6, and 7.

Consideration – Count 7

All of the heroin was found in the laundry. The total amount of heroin found was 236.26 grams. There was one clip lock container containing 58.5 grams of heroin. There was one block of 175.4 grams of heroin, and one green bag containing two plastic bags, containing a total of 2.08 grams of heroin. I point out that the clip lock container, containing 58.5 grams of heroin, bore a label indicating that it was for “skin care”.
It is not known if the “skin care” was used by the Second Accused, the First Accused (who were of a similar age), or of Mr Choi, who was older. Perhaps Mr Choi needed to have some skin care product. In any event, what it points to is the containers being taken from a perfectly lawful domestic use, to being used to contain a prohibited drug, indicating that the “skin care” container was being “recycled” by whoever it was that was involved in drug trafficking.
Again, the evidence does not persuade me that the First Accused knew of the presence of the heroin in the laundry, and to possess it she had to know that it was available to her. If she did not know it was there, she could not possess it. Therefore, the First Accused is entitled to be acquitted on count 7 in the indictment.

Verdicts re the First Accused

Canny Leung, on the charge that between 5 April 2018 and 5 September 2019 at Birchgrove in the State of New South Wales you knowingly took part in the manufacture of an amount of prohibited drug, namely cocaine, which was not less than the commercial quantity of that prohibited drug, I find you not guilty. On that count you are acquitted.
On the charge that between 5 April 2018 and 5 September 2019 at Birchgrove in the State of New South Wales, believing that a serious indictable offence had been committed, namely manufacture of an amount of a prohibited drug, namely cocaine, which was not less than the commercial quantity applicable, and believing that you had information that might be of material assistance in securing the apprehension, prosecution, or conviction of an offence, you failed without reasonable excuse to bring that information to the attention of a member of the NSW Police Force, I find you not guilty. On that count you are acquitted.
On the charge that on 4 September 2019 at Birchgrove in the State of New South Wales you did supply an amount of prohibited drug, namely cocaine, being an amount which was not less than the commercial quantity applicable to that prohibited drug, I find you not guilty, on that count you are acquitted.
On the charge that on 4 September 2019 at Birchgrove in the State of New South Wales, you did supply an amount of prohibited drug, namely MDMA, being an amount which was not less than the large commercial quantity applicable to that prohibited drug, I find you not guilty. On that count you are acquitted.
On the charge that on 4 September 2019 at Birchgrove in the State of New South Wales, you did supply an amount of a prohibited drug, namely methylamphetamine, being an amount which is not less than the large commercial quantity applicable to that drug, I find you not guilty. On that count you are acquitted.
On the charge that on 4 September 2019 at Birchgrove in the State of New South Wales you did supply a prohibited drug, namely heroin, being an amount which was not less than the trafficable quantity of that prohibited drug, I find you not guilty. On that count you are acquitted.
In respect of the s166 Certificate, sequence 7 is dismissed, sequence 9 is dismissed, sequence 10 is dismissed, sequence 6 is dismissed, and sequence 12 is dismissed.

Amendments

16 November 2022 - Amended paragraphs referred to in "Decision" component of cover sheet from "pars [223]-[228], [291]-[297]" to "pars [224]-[229], [292]-[298]".

16 November 2022 - Par [279]: amend "thess" to "these".

15 April 2024 - Table of Contents line under “Count 3” which was originally “Consideration – Count – 5” amended to “Consideration – Count 3.”

Subheading above par [259] amended from “Consideration – Count 5” to “Consideration – Count 3”.

15 April 2024 - Amended date of decision from "15 April 2024" to "9 May 2022".

Decision last updated: 15 April 2024

Medium Neutral Citation:	R v Leung; R v Webster (No. 4) [2022] NSWDC 553
Hearing dates:	5-8, 11-14, 19-22, 28-29 April 2022, 9 May 2022.
Date of orders:	29 April 2022, 9 May 2022.
Decision date:	09 May 2022
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See pars [223]-[228], [291]-[297].
Catchwords:	CRIME – CRIMINAL TRIAL BY JUDGE ALONE – Indictment containing 8 counts (see [92]) against 2 accused – Charges included manufacture of a commercial quantity of cocaine; knowingly take part in the manufacture (supply precursor); supply of drugs; and failure to inform police of serious indictable offence – Crown case on all counts purely circumstantial – Assessment of the evidence adduced by the Crown.
Legislation Cited:	Crimes Act 1914 (Cth) Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Alliston v R [2011] NSWCCA 281 Attwood v R (1960) 102 CLR 353 Braysich v R (2011) 243 CLR 434 Melbourne v R (1999) 198 CLR 1 Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 R v Jasper [2003] NSWCCA 186; (2003) 139 A Crim R 329 R v Kuroz [2020] NSWDC 427 R v Leung; R v Webster (No. 1) [2022] NSWDC 137 R v Ruiz-Avila [2003] NSWCCA 264 R v Sheen [2007] NSWCCA 45; (2007) 170 A Crim R 533 R v Wass [2021] NSWDC 414 Shepherd v R (1990) 170 CLR 573 Wilson vDirector of Public Prosecutions [2017] NSWCA 128
Texts Cited:	Sir Edward Coke, The First Part of the Institutes of the Lawes of England. Or, a Commentarie Upon Littleton, Not the Name of a Lawyer Onely, but of the Law It Selfe (1st ed, 1628) Voltaire (François-Marie Arouet), Candide
Category:	Principal judgment
Parties:	R – Crown First Accused – Canny Leung Second Accused – Cameron Stewart Webster
Representation:	Counsel: Crown – Nightingale, K. First Accused – Boe, A. with O’Neill, C. Second Accused – Ramrakha, T. Solicitors: Crown – Office of the Director of Public Prosecutions (NSW) First Accused – Nyman Gibson Miralis Defence Lawyers and Advisors Second Accused – LegalAid
File Number(s):	2019/276597; 2019/276599
Publication restriction:	Nil.