R v Long and McDonnell

Case [2002] SASC 426

R  v  LONG & McDONNELL
[2002] SASC 426

Court of Criminal Appeal:  Doyle CJ, Lander and Bleby JJ

  1. DOYLE CJ: The appellants were convicted on a charge of taking part in the production of methylamphetamine contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA).

  2. There is no doubt that at the time and place in question methylamphetamine was being produced by Mr Furner.  He was charged with the appellants.  He pleaded guilty, and was called as a witness by the Prosecutor.  The issue was whether the appellants participated in the offence.

  3. The prosecution case against Ms Long was that she gave permission for the use of the house, of which she was a tenant, for the production of the methylamphetamine.  She was present at the house when the police arrived, while the production was in process.  Her defence was that she did not know that Mr Furner had set up equipment in the house to produce a drug, and did not give him permission to do so.

  4. The prosecution case against Mr McDonnell was that he helped Mr Furner set up the equipment, knew what Mr Furner was going to do, and had agreed to help him dismantle the equipment just before the police came to the house.  Mr McDonnell was found by police with Mr Furner in the room in which the equipment was set up.  Mr McDonnell said that he was a regular visitor to the house.  He had been there on the night in question, drinking with two other men who were also charged.  He did not know what Mr Furner was doing in the room in question.  After some drinking and talking he went to sleep.  He was awoken by Mr Furner in the morning and at his request accompanied him to the room where the equipment was, just before the police arrived.  He had not agreed to help Mr Furner.  He moved a couple of glass containers around, “just to get them out of the way”.  Then the police entered the room.

  5. With that brief introduction, I will summarise the facts before dealing with the grounds of appeal.

    Facts

  6. About 4am on 30 September 2000 a man telephoned the Holden Hill Police Station.  He informed a police officer that amphetamine was being produced in a house at a stated address on North-East Road.  He said it was being produced by Mr McDonnell.  He gave some further details.

  7. At trial Mr Sutcliffe gave evidence that he made that phone call.  His evidence was that he had been at the house that night.  He saw Mr McDonnell carry boxes into the house.  He later looked in the room to which Mr McDonnell took the boxes and saw that it was “set up like a chemistry lab.”  Mr McDonnell said to him at some stage that it was a “cook up”, a term often used to refer to this method of producing drugs.  Mr Sutcliffe said he had gone there to talk to Ms Long, with…

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R v Long and McDonnell [2002] SASC 426
Case
[2002] SASC 426
Decision Date

CaseChat Overview and Summary

The appeal in R v Long and McDonnell was heard by the South Australian Court of Criminal Appeal, with the Chief Justice and two other judges hearing the case. The appeal centred on the admissibility of evidence of previous drug production at the same premises and the legality of the search that led to the discovery of drug production equipment. The appellants, Long and McDonnell, challenged the trial judge's decision to admit evidence of a previous drug production at the same location, as well as the search warrant and subsequent search of the premises.

The court had to determine whether the evidence of the previous drug production was admissible under the exceptions to the hearsay rule and whether the search was lawful under the provisions of the South Australian Police Powers and Responsibilities Act 2000. The court examined the nature of the evidence and its relevance to the case, as well as the circumstances surrounding the search and the execution of the warrant.

The court found that the evidence of previous drug production was admissible as it was relevant to the accused's relationship with the premises and the individuals involved in the production. The court also determined that the search was lawful, as the police had a general search warrant and acted within the scope of the warrant's authority. The court rejected the appellants' arguments on both the admissibility of the evidence and the legality of the search, finding that the trial judge's decisions were correct.

The final orders of the court were to dismiss the appeal, affirming the decisions of the trial judge regarding the admissibility of the evidence and the legality of the search. The judges agreed that the appeal should be dismissed and found no merit in the grounds of appeal presented by the appellants.

Orders

Orders of the court

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Background

Background to the litigation

With that brief introduction, I will summarise the facts before dealing with the grounds of appeal.Facts About 4am on 30 September 2000 a man telephoned the Holden Hill Police Station. He informed a police officer that amphetamine was being produced in a house at a stated address on North-East Road. He said it was being produced by Mr McDonnell. He gave some further details. At trial Mr Sutcliffe gave evidence that he made that phone call. His evidence was that he had been at the house that night. He saw Mr McDonnell carry boxes into the house. He later looked in the room to which Mr McDonnell took the boxes and saw that it was “set up like a chemistry lab.” Mr McDonnell said to him at some stage that it was a “cook up”, a term often used to refer to this method of producing drugs. Mr Sutcliffe said he had gone there to talk to Ms Long, with whom he had previously had a relationship. At some stage he overheard Mr Furner, Mr McDonnell, the two other men and Ms Long talking about doing some harm to him. This related to his relationship with Ms Long. He was scared and left the premises. He telephoned the police to get back at Mr McDonnell. Mr Sutcliffe also gave evidence that about six to eight weeks before 30 September Mr Furner and Mr McDonnell had conducted a “cook up” at Ms Long’s house for the purpose of producing drugs. On this occasion the “cook up” took place in the laundry. He heard Mr McDonnell tell Ms Long that he had left some amphetamine in the kitchen for her. The admissibility of this evidence is challenged on appeal, as is the direction that the Judge gave to the jury about the evidence. I return to the narrative. Two detectives and two uniformed police officers went to the house at about 9am. Detective Ranger, the senior police officer, decided to search the premises. He held a general search warrant. He was in charge. The four police officers entered the premises by the front gate. Detective Ranger and one police officer went to the front door. The two others went to a padlocked side gate. Detective Ranger knocked at the front door, and called out that the police were present. After a few moments Constables Denton and Van der Stelt, who could see men in the backyard, possibly leaving the premises, jumped the side gate and ran to the backyard. They found two men at the rear of the house. In response to a shouted instruction from Detective Ranger they forced the back door and opened the front door of the house for Detective Ranger and Constable Clarke. An application was made to the Judge at the commencement of the trial to have all evidence obtained from the search that followed excluded, on the grounds that the search was unlawful. The Judge refused that application. That decision is challenged on appeal. In an inner room of the house the police found equipment and chemicals suitable for making methylamphetamine. It was set up to do so. They found Mr McDonnell and Mr Furner in that room. The police found Ms Long on a bed in a bedroom across the hallway from the room in which the equipment was. She was under the covers and was wearing tracksuit pants and a windcheater.

Evidence

Evidence Before The Court

For the reasons given I conclude that the Judge was right in declining to exercise his discretion to exclude the evidence.The evidence of previous production I begin by summarising how this evidence could be used by the jury, if admissible and if accepted by them. As against Ms Long, the evidence could be used as follows. It could be used as proof that Ms Long was willing to allow her house to be used to produce amphetamine. This use would rebut any suggestion by her that she would not do a thing like this. It could prove that she would allow Mr Furner in particular to use her house for this purpose, making it more likely that on a later occasion she would have given permission to him to use her house to make amphetamine. The evidence that she received some of the product on the previous occasion could provide evidence of a motive to allow Mr Furner to use her house on the occasion charged. This evidence would gain added force from the evidence that she used amphetamine. As against Mr McDonnell, the evidence could be used as follows. It could establish that he knew, to some extent at least, how to set up the equipment and how to make amphetamine. Mr Sutcliffe’s evidence was that he saw Mr McDonnell and Mr Furner mixing up chemicals. Proof that Mr McDonnell had previously helped Mr Furner with the process gave added significance to the evidence that he was found in the same room as Mr Furner and the equipment when the police arrived. It would tend to rebut any claim of accidental presence or of innocent association. Another way of putting it is that it threw light on their relationship. The evidence of the earlier occasion would suggest that Mr Furner would trust Mr McDonnell to help him with the process. The evidence would gain added force from the evidence that Mr McDonnell was a user of amphetamine, and from the evidence that he was found in possession of amphetamine. That evidence would suggest a motive to assist Mr Furner. The evidence could be used in another and more general way. Evidence that on a previous occasion Mr McDonnell and Mr Furner used Ms Long’s house, with her permission, used similar equipment and engaged in the very same process, tended to show the involvement of Ms Long and Mr McDonnell in an identical offence, at the same premises, involving Mr Furner. If this evidence was accepted it would support a conclusion that they were likely to be involved on the occasion charged. It was evidence of their complicity in the admitted offence by Mr Furner. To so reason would not be to reason that because they had offended before, they were likely to offend again. The reasoning is that the identity of the offence, of the location, of the method of operation and of the people present was such that it was highly improbable that those coincidences or repetitions could be explicable on any basis other than that Ms Long and Mr McDonnell were involved in the production of amphetamine on the second occasion. The first kind of use identified by me is not an example of the use of the evidence to support propensity reasoning. It does not involve reasoning “… that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person likely to commit the crime charged”: Pfennig v The Queen (1995) 182 CLR 461 at 480-481 Mason CJ, Deane and Dawson JJ. The evidence is used in a different and more limited way. So, for example, proof that Ms Long was willing to allow Mr Furner to use her house to produce amphetamine is proof of an aspect of her relationship with Mr Furner, rather than of a propensity to offend. The point is clearer in relation to proof that Mr McDonnell knew how to produce amphetamine by the process in question.

Decision

Reasons for decision

In the course of argument, although it did not form the subject of a ground of appeal, the issue arose whether an accomplice warning should have been given in relation to Mr Sutcliffe’s evidence about the previous occasion on which amphetamine was produced at the house. Not having heard full submissions on the point, I prefer not to express a firm view on it. I am inclined to think that such a warning is not necessary in relation to involvement in an offence with which the accused are not charged.Conclusion For those reasons I do not accept any of the grounds of appeal, and would dismiss the appeal. LANDER J:I agree with the Chief Justice’s reasons that the appeal should be dismissed. BLEBY J: I agree that the appeal should be dismissed. I have nothing to add to the Chief Justice’s reasons.

Ratio Decidendi

Legal Principle Established

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