R v Mazur - [2009] SADC 34

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MAZUR
Criminal Trial by Judge Alone
[2009] SADC 34
Reasons for the Verdict of His Honour Judge Boylan
31 March 2009
CRIMINAL LAW
Manufacture of methylamphetamine - evidence of motive - admission by accused that he is a user of methylamphetamine - evidence of knowledge - suggestion by accused that he has knowledge of the manufacturing process -circumstantial evidence - accused located by police within laboratory - chemicals, substances and equipment consistent with manufacture located at the laboratory - prescriptions for pseudoephedrine containing drugs located at accused's residence inconsistent with residues located at laboratory. Defence - accused maintained that he was at premises for legitimate reasons

R v MAZUR
[2009] SADC 34

Mark Stanislaw Mazur is charged with taking part in the manufacture of methylamphetamine. The particulars of the offence are that he, between 1 July 2007 and 9 July 2007, at Semaphore, knowingly took part in the manufacture of methylamphetamine, a drug of dependence. He pleaded not guilty and I heard the trial without a jury. I now give reasons for the verdict that I am about to deliver.
Overview
In July 2007, police officers searched a crash repair workshop at Semaphore. They found there all the chemicals and equipment needed to make methylamphetamine from pseudoephedrine. When police first arrived, the accused was at the workshop standing at a bench. On the bench was a glass dish of paste made up of the unique combination of chemicals produced during the manufacture of methylamphetamine. On the same day, other police officers searched the accused’s house at Campbelltown. They found a chemistry textbook and a number of prescriptions for tablets containing pseudoephedrine. In conversations with police officers, the accused admitted that he was a user of methylamphetamine and suggested that he knew how to make the drug. The prosecution case is that that combination of circumstances proves beyond reasonable doubt that the accused took part in the first of the steps in the process of making methylamphetamine from pseudoephedrine. That process is crucial to the prosecution case.
The Process of Manufacturing Methylamphetamine
Methylamphetamine can be made from pharmaceutical tablets containing pseudoephedrine, a drug commonly used in the treatment of colds and flu. The tablets are sold by pharmacists, usually on prescription. Sometimes, the tablets contain paracetamol. The process for making methylamphetamine from tablets containing paracetamol is different from the process used when the tablets do not contain paracetamol.
In the case of tablets containing paracetamol, there are three stages in the process. The first is the extraction phase. The tablets are crushed and then dissolved in an alkaline solution, usually one of caustic soda. Next, a solvent, is added typically toluene, into which the pseudoephedrine dissolves. The toluene solution, now containing pseudoephedrine, is separated from the alkaline solution. That is fairly easily done as to the two solutions separate into layers and are then decanted. The toluene solution is then left over. The toluene itself evaporates, leaving a solid pseudoephedrine base. That pseudoephedrine base is then converted to a salt by adding hydrochloric acid.
The next step is the manufacture of methylamphetamine from the pseudoephedrine salt. The pseudoephedrine mixture is heated with hypophosphorous acid and iodine, ideally in a round-bottomed flask. A condenser and a re-circulating water pump are fitted to the flask. Crude methylamphetamine is produced.
The last stage is purification. The crude methylamphetamine is purified by adding to it an alkaline solution. Ideally, the pH of that solution is 14. The pH can be measured by using an electronic pH meter or test strips. Then methylamphetamine oil and water are produced by steam distillation,. They are separated by adding magnesium sulphate (Epsom salts.)
The prosecution case: The Workshop at Semaphore
I go now to the events of Sunday 8 July 2007.
In July 2007, Michael Charry was operating a crash repair business at 132A Semaphore Road, Semaphore. Those premises included a large workshop with a kitchen area, a makeshift bedroom and a small room used for mixing paint, the “mix room”. The mix room contained cans of paint and other substances one would expect to be used in a crash repair business. The windows to the mix room had been covered with paper. In one of its corners, there was a flue which contained an extractor fan.
Police officers arrived there at about 11.00am on Sunday 8 July 2007. Detective Brevet Sergeant Pedder went straight to the “mix room”. The accused was in there, standing in a corner with his back to Pedder. The accused’s arms were stretched out in front of him but Pedder could not see what, if anything, the accused was doing with his hands. On a bench or shelf immediately in front of him were an electric grill and a two-ring gas burner. Neither was turned on. On the grill was a glass dish containing about 100 mls of a pink paste. Mr Benjamin Painter, a forensic chemist, who attended with the police, later analysed that paste. It had a pH of 14 and comprised toluene, paracetamol, pseudoephedrine, methorphan.(1)That is, the paste comprised the combination of chemicals remaining at the end of the first stage in the process of making methylamphetamine from pseudoephedrine. In evidence, Mr Painter said that he could think of no other reason for that combination of chemicals than its having been produced during such manufacture.
(1) Methorphan is a substance commonly present in tablets containing pseudoephedrine.
Police officers, assisted by Mr Painter, searched the premises thoroughly. They seized a number of items, some of which were later analysed by Mr Painter and by a forensic biologist. Some items were examined for fingerprints. I shall not describe every item seized. I shall refer to the more important ones only.
On a table, in the kitchen area of the workshop police found an electric coffee grinder. It contained residue comprising pseudoephedrine, oxazolidines(2), paracetamol and methorphan. That residue is consistent with its having come from crushed tablets containing pseudoephedrine. On the table next to the coffee grinder was a small amount of an identical residue.
(2) Oxazolidines are substances found in pseudoephedrine containing compounds.
On a workbench in the main workshop area was an electronic pH meter. It was in working order and, on later analysis, its probe was found to contain methylamphetamine and by-products from the manufacture of methylamphetamine. The residue on the probe was consistent with the probe’s having been used to check pH after caustic soda had been added to crushed tablets containing pseudoephedrine.
In the bedroom area, another electronic pH meter was found. Its probe also contained residue consistent with its having been used in the manufacture of methylamphetamine but that pH meter was not in working order. Also found in the bedroom were items used for the ingestion of cannabis and methylamphetamine. I shall not describe them further but their presence in the bedroom suggests that the occupant or occupants of that room were users of both those drugs.
I return to the mix room. In that room, police found a container of caustic soda and a container of toluene. I have already described how toluene is used in the manufacture of methylamphetamine. I note here that it can be used as a paint thinner and was, of course, found in a room apparently used for mixing paint in the crash repair business. Police officers also found a Nescafé jar which contained a mixture of chemicals consistent with having been produced during the extraction phase. I have already mentioned the glass dish of pink paste. Police also found a container of hydrochloric acid and, in a stubbie holder on a shelf near to the area of the electric grill, they found a container hypophosphorous acid and iodine. They found numerous items of glassware commonly used in a laboratory. That glassware included a reaction vessel, a glass condenser, a splash head, a glass elbow joint, a distillation head, tubing and rubber plugs. Those items were found mainly in a brief case or suit case in the mix room. They were not set up for use. In a small denim bag found in another corner of the same room, police found a container which had, apparently, originally contained pH test strips of the type used to check swimming pool water. In that container they found a paste which contained methylamphetamine and a spatula with traces of methylamphetamine on it. Hanging on the wall immediately above the area where the dish of pink paste was found was a purifying respirator (gas mask).
In a green shopping bag found next to the bench in front of which the accused was standing, police officers found a glass jar which contained a small amount – about 5 mls – of liquid. That liquid, on analysis, was found to have a pH of 14. That pH level is consistent with the solution of caustic soda and water needed for the extraction phase. A print of the accused’s right thumb was found on that jar.
On the bottle of hydrochloric acid, to which I have already referred, was a print of the accused’s right ring finger. The position and direction of that print indicate that the accused had held the bottom of the bottle in the palm of his hand. The prosecution argues that the position of the print is inconsistent with the accused’s having simply touched the bottle in an action of pushing it aside.
Also found in the mix room were a funnel, a spoon with traces of methorphan, an electric air pump, glass grease, glass stoppers, rubber stoppers, a submersible water pump and a gas cylinder.
Mr Painter’s evidence was that all of the chemicals and all of the equipment needed to convert pseudoephedrine to methylamphetamine using the hypo phosphorous acid and iodine method were present. He went on to say that the equipment was not set up for the next steps, namely, conversion and purification.
Lower North East Road Campbelltown
I turn now to the premises at Campbelltown. Police officers arrived there about mid afternoon on Sunday 8 July. The accused was then in police custody at Semaphore. There is no doubt that he lived at the house at Campbelltown with his partner and his partner’s young daughter. The house was thoroughly searched. Items such as scales and press seal plastic bags were found. They are consistent with illegal drugs having been used at the premises. A police dog was also used in the search. The dog’s behaviour indicated numerous positions in the premises which gave off an odour of illegal drugs which the dog is trained to indicate. There was no dispute at the trial that Mr Mazur is a user of amphetamine.
In the main bedroom at the house, obviously occupied by Mr Mazur and his partner, there was a bedside table. It was on what was described, without challenge, as the “male” side of the bed. Under some clothes in one of the drawers in that bedside cabinet were found two books: a dictionary of chemistry and a basic chemistry textbook. Mr Painter was asked about the textbook. It appeared to him to be a text book which would be used by senior school students or first year university students. It contained no material about the manufacture of methylamphetamine but contained broad and general information about the principles of chemistry.
Also found in the bedroom were a number of prescriptions or copies of prescriptions for Demazin and Telfast. Both of those preparations are sold as tablets by pharmacists. They both contain pseudoephedrine but they do not contain paracetamol. The hypophosphorus and iodine method of converting pseudoephedrine to methylamphetamine is not a suitable method where the pseudoephedrine is extracted from tablets that do not contain paracetamol. To put it another way, the method of manufacture apparently being used in the “laboratory” at Semaphore was not suitable for manufacturing methylamphetamine from Demazin and Telfast tablets.
The Accused’s Conversations with Police
The accused had a number of conversations with Detective Brevet Sergeant Kym Wall on 8 July 2007. Very shortly after police officers had found him in the mix room, he was asked:
“Q.    Do you have any comment to make about anything here?
A.Um, no not really no. I don’t know what’s going on. I was, just come to do some electrical work.
Q.    You’ve come to do some electrical work?
A.    Yeah I’m just a mate of Mick’s
Q.    Alright. Well do you want to explain what you are doing here?
“A.Um just fixing, fixing I don’t know power points. Just that, bits and pieces sort of thing. Drop saw, just you know stuff like that.”
He went on to tell police that he had arrived at the Semaphore premises at about 8.30 or 9 o’clock that morning, saying that he had just come down to give Mick a hand, “just potter around, give him a hand”.
He was asked to be specific about the jobs he was there to do and said:
“Oh just, cleaning up bits and pieces like power points hanging of the loose. Power point hanging off the wall and just going around and having a look at them. Having a grog.”
He told Detective Brevet Sergeant Wall that he was a qualified “A grade”

electrician.
Later, when still speaking to Wall, the accused said:
“He’s been on me back to finish wiring up his, like his Cortina. I started re-wiring it and I’ve been meaning to get down here all week.”
Still later in the afternoon, just before police officers left with him for the Port Adelaide police station, he was asked if there was anything he wanted to say in relation to the offence to which he had been charged. He replied:
“Oh it’s not. It’s all. Mick’s a fuckwit. I just happened to be down here when he’s fucking doing fucking stupid shit.”
Later in the same conversation he said:
“Well I’m, I’m on. This is what. I’m on a fucking um, good behaviours bond for.
Q. Yeah.
A. “This shit I’m trying to. That’s why I don’t want nothing to do with it.”
A little later, he told Wall that he had left his cigarettes in the mix room. He said:
“Well I left me smoke there... I left me smokes when I walked in the room, just before I fucking left me smokes.... Wingfield Red.”
When asked to explain where his cigarettes were he said:
“When I walked into that little, that paint mixing room....Yeah I put them on the table.”
A police officer who went into the mix room to retrieve the cigarettes found them there.
Later in the conversation, the accused said to Wall:
“What’s that sniffer dog? I can’t believe this. I’m trying to get out of this shit.”
Later still, he said:
“I know what’s in there from past experience but I just happened to fucking walk in there, I didn’t fucking know. I wouldn’t have come down here if I’d known shit like this was going on... fucking, Mick should fucking know better than ...or whoever’s doing it. .... I told him not to fucking do any work for these fucking bikies. There all fucking trouble.”
And later still:
“Oh.... they fucking tricked me the cunts. ... Once you get in these circles just, like I’m not saying I’m in these circles, but once you’re known, you’ve got knowledge of being able to do something, cunts just don’t leave you alone.” (my underlining)
Shortly thereafter he said:
“Fuckwit. So he fucked Mick over that’s what I was trying to fucking give him a hand fixing up stuff and just, bits and pieces you know. Not for money or nothing just yeah. To do with fucking gear. Fucking stupid stuff it is I tell ya. Fucks people’s lives.”
(There is evidence from a qualified police officer that “gear” can refer to methylamphetamine.)
At Port Adelaide Police Station, Detective Wall asked the accused if he would like to give any information about what had happened. The accused replied:
“No. Don’t think I can really say which is the (inaudible) just. Just happened to be there. Be at the wrong place at the right time.”
I’ve gone down there this morning to a friend’s, to me mate’s workshop to. You can see where I, I’ve tied up odds and ends and fixed just made things safe and all that sort of stuff, cos I’m an electrician by trade. And I’ve walked in, and then I’ve walked into a paint mixing room there and, from past experience I know that there was illegal shit happening. And I wasn’t fucking happy.
Q.Well do you want to explain what you, you were doing in there and why you were there and all that sort of thing?
A.Well, in a in a paint mixing room, there’s a exhaust fan that I fixed last time I was there (inaudible). I had to come back between the last time this time because where I had to lift the roof it was, it was leaking, so I just wanted to do the check. Pretty much if there was any water and that around and, walked down, fucking, shit.”
After his interview with police swabs were taken from each of the accused’s hands and scrapings from his fingernails. On analysis, the swabs from both of his hands were found to contain traces of methylamphetamine and pseudoephedrine. Methylamphetamine was also detected in the fingernail scrapings from his left hand. I note here Mr Painter’s evidence that a user of methylamphetamine could end up with both methylamphetamine and pseudoephedrine on his hands or under his nails. A user who had not been associated with the manufacture of the drug could have pseudoephedrine on his hands or under his nails if some pseudoephedrine had remained in the methylamphetamine purchased or acquired by the user.
When he was presented to the Charge Sergeant at the police station at Port Adelaide, Mr Mazur told the sergeant that he had last used amphetamine at about 8pm on Saturday 7 July and that he had had a can of bourbon on the Sunday morning.
The Prosecution’s Submission on the Evidence
The prosecution submitted that the only rational conclusion to be drawn from the combined circumstances that I have outlined is that the accused had taken part in the manufacture of methylamphetamine by taking part in the first stage of that process; that is, he had taken part in the extraction phase. In support of that contention the prosecution point especially to the following items of evidence:
·The accused was inside the mix room when police arrived. Further, Charry, the occupier of the premises and apparently a drug user who also may have had the opportunity and motive to manufacture the drug, was outside the workshop.
·The accused’s position in the room when police arrived. He was standing in front of the dish with his arms outstretched. That position is inconsistent with his simply being curious about what was going on in the mix room.
·The pink paste in the dish was fresh because toluene, which evaporates readily, was still present.
·His purpose for being in the room, whatever it may have been, was such that he left his cigarettes there. That is inconsistent with casual and fleeting curiosity.
·He was on the opposite side of the room to the extractor fan. He told police that he was there to check that fan.
·His fingerprints were found on the bottle of hydrochloric acid and on the jar containing residue consistent with that produced during the extraction phase.
·Methylamphetamine and pseudoephedrine were found on his hands.
·As a drug user, he has a motive to manufacture methylamphetamine.
·He knows how to manufacture methylamphetamine from pseudoephedrine. That is clear from his statement to the police that he had “knowledge”; from the finding of the chemistry books at his house; and from the finding of the prescriptions for drugs containing pseudoephedrine at his house.
The Defence Submission

Mr Waye, who appeared for the accused, submitted that there were rational explanations for the circumstantial evidence which were consistent with the accused’s innocence of the crime charged. In particular, Mr Waye made the following points:
·Mr Painter, the chemist, said that the pink paste could have been manufactured within 48 hours of his examining it on the Sunday afternoon. As the accused told the police that he had been at the workshop from only 8.30 or 9.00 o’clock on the Sunday morning, I could not discount the possibility that the pink paste had been manufactured before he arrived there.
·The fact that the laboratory equipment was packed away suggests that the whole process of manufacture of methylamphetamine had been completed. Mr Waye submitted that, therefore, it is a reasonable possibility that the pink paste was “left over” from an earlier completed process.
·Mr Mazur had good reason not to be involved in the manufacture of the drug because he was on a good behaviour bond.
·He gave plausible explanations for his being there. His claim that he was there to check an extractor fan is supported by the presence of an extractor fan in the mix room. His claim about rewiring the Cortina is consistent with the fact that a Cortina, apparently being restored, was found at the premises.
·The prescriptions found at the accused’s house were for drugs from which methylamphetamine could not be extracted by the process being used at Semaphore. Further, there was no evidence that the prescriptions had been presented or filled. There was evidence that pseudoephedrine itself is sought after by the users of illegal drugs. Mr Mazur may have wanted pseudoephedrine tablets to sell them in that form.
·The chemical text book is very general. There is no evidence that it had been read.
·A number of people could well have been involved in the manufacture of the pink paste. It is clear from the evidence that the occupiers of the bedroom were drug users. They, too, had a motive for manufacturing methylamphetamine.
·Mr Mazur could have had reason to be at the premises, namely, to acquire drugs. He could have gone there to acquire drugs without having any interest in or involvement in the manufacture of methylamphetamine.
·There was no evidence of methylamphetamine or pseudoephedrine on his clothing. Had he taken part in the extraction phase one would have expected to find it there.
·There were no fingerprints of the accused on the coffee grinder or on the table surface near to the coffee grinder.
·Fingerprints cannot be aged and it is clear that the accused was a friend of Charry’s. As I understand this submission, the accused could innocently have left his fingerprints there on previous visits.
·The gas mask found immediately found in front of the accused’s original position in the mix room had the DNA of one Schultz on it. None of the accused’s DNA was found on it. As there was evidence that gas masks are commonly worn in clandestine methylamphetamine laboratories, lack of the accused’s DNA on the gas mask suggests that he was not involved in such manufacture.
·The accused’s alleged admissions to police officers, especially about his “knowledge” are unclear and equivocal.
·It must always be a possibility that the accused, as a user of methylamphetamine, went into the mix room out of simple curiosity only and, in satisfying that curiosity, he may have rummaged around and left fingerprints.
Directions
I have given myself the following directions.
I have directed myself that the accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving the charge lies wholly upon the Prosecution. The accused is not obliged to say, do or prove anything.
At times he chose not to answer police questions and he elected not to give evidence. He has a right to decline to answer police questions and he was not obliged to give evidence. I have not used his refusal to answer questions or his decision not to give evidence in any way at all. That is, I have drawn no inference adverse to him on account of those matters.
I have directed myself about the elements of the offence. I directed myself, first, that the prosecution must prove that the accused took any step in the process of manufacture. Next, the prosecution must prove that he took part in that manufacture knowing that the substance was methylamphetamine or, at least, that it was an illegal substance. Next the prosecution must prove that methylamphetamine is a drug of dependence. There is no dispute about that. I am satisfied that that last element has been proved beyond reasonable doubt.
Because the case is circumstantial, I have directed myself that I cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty of the offence with which he is charged. That is, before I could convict him, I must be satisfied not only that his guilt is a rational inference but that it is the only rational inference that the circumstances I find proved enable me to draw.
It is clear from the evidence that, at the time of the alleged offence, the accused was a user of methylamphetamine. It is also clear from the evidence that, at the time of the alleged offence, he was subject to a good behaviour bond. I have not used either of those items of evidence as evidence of propensity. That is, I have not reasoned that, because the accused is a user of illegal drugs or because he has been in some trouble with the law, he is the sort of person who would commit the offence charged. I have, however, used those two items of evidence in other ways. I have used the evidence of his being a drug user as some, albeit weak, evidence of motive. I have used the evidence that he was on a good behaviour bond when assessing the likelihood of somebody in that position taking the risk of taking part in the manufacture of methylamphetamine or of being present at premises where he knew methylamphetamine was being manufactured.
I have carefully considered the evidence and the submissions of counsel. In particular, I have considered Mr Waye’s submissions and the possible explanations for the various items of evidence upon which the prosecution relies. I have come to the conclusion that there is no reasonable explanation for the evidence consistent with the accused’s innocence. I am satisfied that the prosecution has proved each of the elements of the offence beyond reasonable doubt. I find the accused guilty of the offence charged.