R v McDonnell-Smith - [2006] SADC 79

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCDONNELL-SMITH & ORS
Criminal Trial by Judge Alone
[2006] SADC 79
Reasons for the Verdict of His Honour Judge Herriman
13 July 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Taking part in the manufacture of methylamphetamine - whether circumstantial evidence sufficient to establish joint enterprise of accused in taking steps in the process of manufacture.
Controlled Substances Act 1984 s.32(1)(b), s32(4); Juries Act 1927 s.7(1)(a), referred to.
Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392; R v Palaga (2001) 80 SASR 19; R v Long (2002) 137 A Crim R 263, applied.
DPP Reference (No 2 of 1995) (SA) (1995) 65 SASR 508; Question of Law Reserved on Acquittal (No 1 of 1996) (1997) 68 SASR 117; R v Thomas (1993) 67 A Crim R 308; R v BD (2001) 122 A Crim R 28; R v Marchione (2002) 128 A Crim R 574; R v Spicer [2003] NSWCCA 108, distinguished.

R v MCDONNELL-SMITH & ORS
[2006] SADC 79
Introduction

Robyn McDonnell‑Smith, Norman Arthur Randylle and Paul Robert Cosford are jointly charged on information with taking part in the manufacture of methylamphetamine contrary to s.32(1)(b) of the Controlled Substances Act 1984.
Particulars of the offending alleged are that between 1 and 8 January 2005, at Windsor Gardens and other places, they knowingly took part in the manufacture of methylamphetamine, a drug of dependence.
On that same information, the accused Cosford has pleaded guilty to three firearms offences, namely, possessing a firearm without a licence, possessing an unregistered firearm and possessing a silencer. Each of those counts relates to the same weapon and I will later discuss what account should be taken of those pleas.
The Election for Trial by Judge Alone
The trial of the accused was originally listed to take place before a jury but, pursuant to s.7(1)(a) of the Juries Act 1927, each of them sought to elect for trial by judge alone. Those elections were made well outside the time provided for in the Rules under that Act. In the event, having been informed by the prosecution that it did not oppose my dispensing with the need for strict compliance with that time limit and, further, that the trial was to proceed in a particular manner which I will shortly describe, I found myself satisfied there were special reasons for dispensing with the requirements of Rule 16 of the Juries Rules, and I did so. The trial then proceeded without a jury and before me.
Rule 9 Application
Before the trial commenced, I dealt with a Rule 9 application brought by the accused Cosford seeking orders for the exclusion from trial of:
(1)the evidence of a proposed witness, Tammy Christmas; and
(2)the evidence of prior purchases of the substance iodine.
In order to properly determine the first part of that application, it became necessary for me to read the police deposition of the witness Christmas and I did so. Having heard argument, I ordered that certain parts of the evidence of that witness not be led. An amended statement was then tendered. I will discuss at a later point my reasons for so ordering and what account I will take of the evidence admitted.
As to the evidence of prior purchases of iodine, I declined to exclude it and I will also deal with that matter in due course.
The Trial
Otherwise the trial then began. By agreement between the parties, all the prosecution evidence was presented by the tender of witness statements and particular documents, and without the need for the prosecutor to call any oral evidence or for any of the prosecution witnesses to be cross‑examined. None of the defendants called or gave evidence and the hearing proceeded on the footing that the prosecution would provide a single address and counsel for each of the accused would then make a responding address on behalf of his client.
In the event, each accused urged that I should, on the agreed materials, find there was no case to answer or, were I to find otherwise, that I should treat their counsels’ addresses as going to the ultimate question of guilt and that I should find each of them not guilty.
Directions
At the outset, I remind myself of these matters:
1.That each accused is presumed to be innocent unless and until I find the charge against him or her proved beyond reasonable doubt.
2.That the burden of proof in each case rests upon the prosecution and it requires proof beyond reasonable doubt of each element of the offence charged.
3.Each of the accused was at some point interviewed by investigating police and each exercised his/her right of silence. In addition, none of them chose to give evidence at the trial.
I remind myself that an accused is entitled to remain silent at all stages of a police investigation and he/she is not obliged to give evidence at trial. The exercise of either or both rights must not be construed by me as an admission of guilt or as any evidence at all, nor may I draw any inference adverse to any accused from the fact that he/she has exercised it.
4.The prosecution case here was that the accused had together and by way of a joint criminal enterprise engaged upon a deliberate course of criminal conduct. I remind myself that if two or more persons join together in a joint criminal enterprise, then every act done and word spoken in furtherance of that enterprise by any one of them is, in law, done and spoken by them all. To prove such an enterprise, it must be shown that the role the particular accused played in the offence was undertaken pursuant to an agreement with the other or others and for the purposes of advancing the commission of the crime. That agreement need not be carefully considered or planned and may be a spur-of-the-moment decision. In considering whether a joint criminal enterprise exists, the court may rely upon any available inferences from proven conduct.
5.The prosecution case against each of the accused was, here, based upon circumstantial evidence said to be contained within the agreed evidence placed before the court and from which the prosecution invited me to infer beyond reasonable doubt that each accused committed the offence charged.
I remind myself that the circumstantial evidence relied upon was, in the case of each accused, slightly different and I will come to that in turn.
In that context, too, I remind myself that it is necessary for me to consider the question of my verdict with respect to each accused separately and independently of any verdict I might reach with respect to one or both of the others and it must be based solely upon the evidence admissible against that particular accused.
The prosecution case being, in each instance, circumstantial, I remind myself that I may not return a verdict of guilty with respect to any one of the accused unless I am satisfied that the combined effect of all the circumstantial evidence relating to that accused excludes any reasonable explanation consistent with innocence. I must be satisfied that guilt is not just a rational inference, but the only rational inference that the circumstances proved against that particular accused enable me to draw.
I will in due course discuss the circumstantial case relied upon as implicating each accused, but I repeat that the facts proven by the prosecution were not in dispute. The real issues in each case were as to the weight I should attach to each piece of evidence and what inference or inferences I should properly draw from the evidence.
6.I will discuss later what use might be made of the evidence of the witness Christmas as to Cosford’s admissions to her of previously producing and possessing methylamphetamine.
Whatever use I may so determine, I remind myself that that is not a matter which is charged before me.
I also note a reference in the evidence to a broken safe at the premises he shared with another person and also to used needles, methylamphetamine traces and a quantity of cannabis found there.
I remind myself that I must not reason that because of any of those matters, the accused is more likely to have committed the offence charged, nor, to the extent that any such evidence might be considered as evidence of bad character, may I take that into account in considering my verdict.
The same observation applies to evidence touching upon the characters of the other accused.
7.Finally, I remind myself of the elements of the charge of taking part in the manufacture of methylamphetamine.
The prosecution must prove beyond reasonable doubt that during the period in question, the accused took part in the manufacture of the substance known as methylamphetamine. The word “manufacture” means to work up materials into forms suitable for use as a drug.
The words “takes part in” are defined in s.32(4) of the Controlled Substances Act and relevantly provide:
(a)takes, or participates in, any step, or causing any step to be taken, in the process of that manufacture … ; or
(b)provides or arranges finance for any step in that process; or
(c)provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which he or she is the owner, or in the management of which he or she participates.
I will later discuss authorities dealing with that expression.
The next element which must be proved by the prosecution beyond reasonable doubt, assuming the first element is proved, is that it must be shown that the accused took part in the manufacture “knowingly”, that is, that he knew at the time that the substance to be manufactured was methylamphetamine or, at the least, that it was to be an illegal substance under the drug laws.
A third element which must be proved beyond reasonable doubt is that methylamphetamine is a drug of dependence within the meaning of the Controlled Substances Act. As to that element, I should straightaway say that I am satisfied and find that it is a drug of dependence within the meaning of that Act.
The Evidence
At about 2 p.m. on Friday, 7 January 2005, several police officers attached to the Drug and Organised Crime Investigation Branch went to premises at 21 Paula Avenue, Windsor Gardens. They were in possession of general search warrants.
Those premises were owned by the witness Robert Redic, but he had been renting them to the witness Mark Lewis for some 12 months. He (Redic) was aware that the accused Paul Cosford was sharing them with Lewis.
Lewis was at that time employed as a crash repairer at premises opposite the residence.
At the time of the police visit, the accused Cosford was not at home and the house was locked up. A friend of Lewis by the name of Lorraine Cooper was, however, staying in a camper‑bus parked in the driveway of the premises and she was there when the police came. She facilitated their entry into the house, where they conducted a preliminary, and later a full, search.
It was common ground that the accused Cosford’s bedroom was at the front of the house, adjacent to the entrance, and that the door to it was secured by a padlock. Police forced entry into it and found there the rifle with silencer, the subject of the remaining counts on the information, a jar containing a substance later identified as iodine, a packet of glucose powder, a set of electronic scales containing traces of methylamphetamine, a number of pH test strips, some glass laboratory stoppers and 154 small plastic snap‑seal bags, many containing residues and of which at least 23 contained methylamphetamine.
Soon after police had arrived there, two vehicles approached the premises. Both were registered to the accused McDonnell‑Smith. One of them, a utility, was driven by her and the other, a sedan, was driven by the accused Randylle. He later described the car as his own. The utility reversed into the driveway of 21 Paula Avenue and the sedan parked at the kerb opposite the property. Randylle was heard to call out to McDonnell‑Smith, directing her as she reversed into the driveway.
Police then went to those vehicles. In the rear tray of the utility were a large wooden box, a gas cylinder and retort stands. On opening the box, they saw that it contained laboratory glassware, as well as other items packed with newspaper, in bubble‑wrap and secured in cardboard boxes. In addition, there were containers of particular chemicals. McDonnell‑Smith was then arrested.
Police also searched the sedan. Whilst police officer Copland was speaking to Randylle, he heard yelling coming from the officers standing at the rear of the utility. Randylle then said to him, “If they’ve got what I think they’ve got over there then it is pretty big and they won’t want to have anything to do with little fish like us”. Copland said, “What do you know about that?” Randylle said, “That’s got nothing to do with me this is just a delivery, a drop-off”.
Copland then directed Randylle’s attention to a cardboard box on the rear seat of the sedan and asked whether it was his. Randylle replied, “No, it’s not mine that’s the friends across the road”. Inside the box, Copland saw masks, safety goggles and chemicals known to be commonly used in the manufacture of amphetamine. Also, in the front passenger seat of the car was a bag containing clothing and toiletries.
When asked about the car boot, Randylle said, “Yes there is some other gear in the boot belonging to her”. I infer that the references to “us”, “friends across the road” and “her” were intended to refer to the accused McDonnell‑Smith.
Police officers then opened the boot and found in it two carry‑bags, one black and one blue, and a length of white plastic sewer pipe containing glassware wrapped in bubble‑wrap. In the top of one of the bags was a gas burner attachment. The bags contained numerous items of laboratory materials and glassware, electronic scales and containers of particular chemicals.
Police then conducted a more thorough search of the interior of the house premises and found particular items said to be suitable for use in the manufacture of methylamphetamine. Apart from those in Cosford’s room, they found a large quantity of iodine in a bucket in a spare room apparently used for storage; a gas bottle in another, similar room; plastic piping in the bathroom; chemicals, containers and gloves in a cupboard in the dining room; and in the lounge room were found some further sealed containers and printed Internet materials dealing with the manufacture of methylamphetamine, albeit not by the ioidine/hypophophorous/pseudoephedrine method.
I will at a later stage refer to all items, whether found in the cars or in the house, that were said by the prosecution witnesses to be associated with the intended manufacture of methylamphetamine.
Ultimately, a forensic chemist and police officers catalogued and listed items found in the house and took photographs and fingerprints.
After McDonnell‑Smith was arrested, she underwent a short video interview at the site and later at Holden Hill police station. In the course of that interview she disclosed that her residential address was 19 Laurance Street, Eudunda, but otherwise exercised her right of silence, as she was entitled to do. She also underwent a forensic procedure involving a buccal swab.
Randylle was not arrested at the house and agreed to go to Holden Hill police station and to provide a witness statement. In the course of taking that statement, however, police officers formed the view that he was a suspect in the commission of a crime and the interview was then terminated.
I will come back to that statement in a moment, but Randylle was then cautioned and a video interview took place. During that interview, the contents of the earlier statement made by Randylle were put to him and he adopted them, but he then exercised his right of silence, as he was entitled to do. I am conscious of the fact that police officer Copland also put some very lengthy questions to Randylle, in particular questions 53, 54 and 55, but the form in which those questions were put was confusing and unfair and I decline to take any notice of the answers provided.
Otherwise, in the formal statement he provided, Randylle said he lived at Mintaro, that he knew McDonnell‑Smith and that she resided at 19 Laurance Street, Eudunda. He said he knew Cosford, too, though not as well. He said Cosford owned a glass replacement/security door business called “Paul’s Windows” or similar.
He said that at about 5 p.m. on the previous day, McDonnell‑Smith had called him and asked him to help her transport “gear from Eudunda to Adelaide … it was breakable stuff and some boxes”. He agreed to help and to be at her place on the following morning. She agreed to give him $20 for petrol. At that point, he did not know what he was to help transport or where, but he was to follow her. The green sedan was his and he drove it to her place at 8 a.m. on 7 January. He there helped her load a large wooden box onto the tray of her utility, which was parked in her driveway, and to put a gas bottle and some heavy metal stands there. She then drove her utility out, he drove his sedan into the driveway and they loaded other things into his car, including bags, cardboard boxes and a cylinder containing a wrapped glass tube. They were put on the back seat and in the boot. He observed:
At this time I was a bit suspicious about what was going on, but I chose not to ask any questions … I suspected that the gear had something to do with the cooking of Amphetamine but I was not sure. A friend asked me to help her out and I just did that. I did not look in the boxes and even now I do not know exactly what is in the boxes and bags. I can only tell you that the cardboard cylinder did contain some glassware tubing.
He said that he then followed McDonnell‑Smith to Roseworthy, where she told him they were heading for Cosford’s place. He said he was aware that McDonnell‑Smith and Cosford were amphetamine users and he suspected that Cosford might have produced amphetamine before. I should say I take no account whatsoever of that knowledge or suspicion. He went on: “I had an idea that what I was doing was illegal but I chose not to ask any questions, I was just helping my friend Robyn out”.
I return then to the searches of the house and the two vehicles.
I have already discussed what was found in a general way and will not list everything in detail. They are fully identified in Exhibits P5 (Pedder) and P29 (the bundle of photographs). As well, many of them are identifiable in the video, P31.
This much should, however, be said about them:
(1)In the brown box in the utility were containers of various chemicals, later identified as sulphuric acid, hypophosphorous acid, iodine, ethanol (or residues thereof) and various glass items of a kind used in laboratories. Also on the tray of the utility were, of course, the gas cylinder and two laboratory‑type retort stands.
(2)In the green sedan were found two reaction vessels, a large tube containing two glass condensers and other glass fittings, a black bag containing various items of laboratory glassware, a water pump and tubing, retort clamps, a gas cylinder, a gas plate, two sets of electronic scales, taping and safety goggles, as well as containers of ethanol, methylamphetamine and by‑products, hypophosphorous acid, iodine, caustic soda, acetone, hydrochloric acid, methyl ethyl ketone and toluene.
(3)In Cosford’s bedroom were a jar containing iodine, a quantity of press‑seal bags, some of them containing methylamphetamine traces, Glucodin and glass laboratory materials. Elsewhere in the house were laboratory glassware, pool and spa test strips, a gas bottle, a plastic bucket containing five kilograms of iodine, gloves, a mixture derived from the reaction between pseudoephedrine and acetone, containers of hydrochloric acid, a container of ethanol and a container of methyl ethyl ketone.

I return then to the accused McDonnell‑Smith and Randylle. Forensic procedures were undertaken on them, including fingernail scrapings and swabs on both hands. In the event, no relevant chemicals were detected in the fingernail scrapings, but in both cases amphetamine, methylamphetamine and pseudoephedrine traces were detected in their hand swabs.
Mobile telephones shown to have been leased by each of them were also seized.
I will return to the significance of these items at a later point.
It should be understood at this point that the accused Cosford was not present at the premises at 21 Paula Avenue at any stage during the course of that police visit on 7 January.
At 1.45 p.m. on Sunday, 9 January, police officers Reichstein and Brain attended premises at 24 Austral Avenue, Morphettville. Sitting out the front were the accused and a female. He was arrested and a video interview then took place. He admitted that his residence was 21 Paula Avenue, Windsor Gardens, but in the full interview exercised his right of silence, as he was entitled to do. He also provided a buccal swab.
Another witness, Goss (P22), states that at relevant times he was a director of Chem‑Supply Pty Ltd of Gillman. That business sells chemical products and, in particular, the substance iodine. Iodine is known to be a chemical used in the manufacture of illicit drugs and, pursuant to regulations under the Controlled Substances Act, any purchaser must, upon purchase, complete an End User Statement in the required form. That statement identifies the product purchased, the intended use, the purchaser, the collecting agent and verification of identity for the latter.
According to Mr Goss, a person named Paul Cosford of 19 Laurance Street, Eudunda was a cash customer of the business. From his records he was able to say that on 10 November 2004, a person identifying himself by production of a driver’s licence as Paul Cosford, purchased and collected five kilograms of iodine on behalf of Paul’s Glass of 30 Winterbourn Street, Elizabeth Vale. On 6 January 2005 and in the same circumstances, Cosford purchased and collected a further five kilograms of iodine for “Paul’s Glass” of the same address. On each occasion, that purchaser described his home address as 19 Laurance Street, Eudunda and it is apparent that the same driver’s licence was produced.
Whilst Goss did not visually identify the accused Cosford as that purchaser and collecting agent, I note the following:
(1)The business description proffered of “Paul’s Glass” closely corresponds with the “P. Glass” business name identified by the witness Lewis (P20).
(2)In his record of interview, Cosford describes his occupation as that of glazier.
(3)The witnesses Redic and Cooper observed him driving a utility with glass on the rear.
(4)The address of 19 Laurance Street, Eudunda, is in fact the given address of the accused McDonnell‑Smith (P4) and there is other evidence (to which I will later refer) connecting her with Cosford.
(5)I infer from the contents of the End User Statement attaching a photocopy of a licence with a photograph of the licence holder Paul Cosford, that the vendor satisfied itself that the collecting agent was, indeed, the person shown on the photograph in the licence.
(6)The person photographed in the licence bears a close resemblance to the accused and the date of birth on the licence matches that of the accused.
On the basis of that evidence, I am satisfied that the purchaser and collection agent for the iodine purchased on 10 November 2004 and 6 January 2005 was, indeed, the accused Cosford. Even so, I should say now that I take no account in my deliberations of the purchase made on 10 November 2004.
I then turn to the evidence of Dr Pigou of the Forensic Science Centre (P26). I note that he observed and analysed items removed from the premises at Paula Avenue and each of the two vehicles referred to and I have regard to his conclusions (misnumbered) in paragraph 4 of his report as follows:
·“The apparatus and substances present in the dwelling and vehicles could have been used in the manufacture of methylamphetamine.”
·“Methylamphetamine was identified in the residues on several items: electronic scales …, numerous plastic bags …, a pH meter … and a separatory funnel …”
·“Methylamphetamine can be manufactured using a variety of methods. The most common methods encountered in South Australia during the last several years have involved the conversion of pseudoephedrine to methylamphetamine using iodine and hypophosphorous acid.”
·“Common sources of pseudoephedrine are commercial decongestant preparations and item PAW16 [a container I note was found in the dining room] contained a mixture of dextromethorphan and 2,2,3,4-tetramethyl-5-phenyloxazolidine. Dextromethorphan is a cough suppressant and is commonly combined with pseudoephedrine in ‘cold and flu’ medications. 2,2,3,4-Tetramethyl-5-phenyloxazolidine is a product derived from a reaction between pseudoephedrine and acetone. The mixture was dissolved in acetone so there is a very strong inference that a pseudoephedrine preparation was the source of item PAW16.”
·“Solvents such as ethanol (generally obtained as methylated spirits) can be used to extract the pseudoephedrine from the insoluble components of pharmaceutical preparations. The liquid (ethanol) containing the pseudoephedrine can then be filtered or decanted from the solids. The ethanol is then evaporated to leave the extracted pseudoephedrine as a solid. A solvent mixture containing ethanol was present in item PAW20 and several of the items of glassware held small amounts of liquid that contained ethanol. Ethanol might have been used to wash the glassware.”
·Dr Pigou then records that iodine was identified in five items tested, including in particular the five kilograms found in the white bucket.
·Quantities of hypophosphorous acid were identified in three separate containers.
·“The equipment requirements for this conversion [I infer he means the conversion referred to in point 3 above] are quite basic:
.    A reaction vessel” [he noted that five of the seized flasks complied with that description]
.     “ A condenser” [he noted that four of the seized items of glassware corresponded with that]
.    “Cooling water for the condenser – this is often supplied by ‘mains’ water through rubber or plastic tubing. If that is not available then a bucket of water and a recirculating pump are generally used. Water pumps and plastic hosing were located …”
.    “A heat source – such as a gas burner” [he noted that four such were located]
“Crude methylamphetamine is produced when pseudoephedrine is combined with iodine and hypophosphorous acid. The mixture is usually heated.”
“The crude methylamphetamine product can then be purified by steam distillation or solvent extraction methods after it has been converted to its basic form. This conversion is generally achieved by the addition of sodium hydroxide (caustic soda)” – [he noted that three containers of caustic soda were found].
“The solvent extraction method is most conveniently performed using a separatory funnel … Two separatory funnels were located and one of them … contained traces of methylamphetamine.”
“Steam distillation requires a flask with a distillation head” [he noted that two of those were found] “or splash head and a condenser” [one of the condensers was noted by him to be configured for distillation]. “Steam generators, although not essential to the process, are also often used and can be made from modified kettles, tea or coffeepots and pressure cookers.”
“The purified methylamphetamine is generally converted to its hydrochloride salt before use. Hydrochloric acid can be used to form the salt, which is then dried or crystallised.” [He noted that quantities of hydrochloric acid were identified in four items found.]
“Other items often used in the process include pH strips … and pH meters … to indicate when enough acid or alkali has been added … Residues containing methylamphetamine were present on the pH meter.” [He noted that pH strips were in fact found.]
Dr Pigou then went on to discuss eight papers which were found in the house and which had been downloaded from the Internet. Seven of those discussed the particular methods of manufacturing methylamphetamine or associated or similar substances, but none of them corresponded with the manufacturing process indicated by the materials examined by him. The eighth paper described “how to extract pseudoephedrine from pharmaceutical preparations and how to obtain iodine and red phosphorus without arousing suspicion”. Dr Pigou observed:
While there is information in this document which is applicable to the process described [in his report], the iodine located was of commercial origin and not recovered from antiseptic tinctures.
Dr Pigou had himself attended at 21 Paula Avenue and his conclusion was that the items and equipment which he had seen there or examined comprised all the equipment and chemicals required to produce methylamphetamine by the process of converting pseudoephedrine using iodine and hypophosphorous acid, save for the substance pseudoephedrine, albeit that he observed that there was a strong inference that pseudoephedrine had been the source of liquid chemical residues found in a plastic container, PAW16.
He commented:
At the time of my inspection there was no obvious laboratory set up in the dwelling and there were no clear indications of previous activity of a chemical nature.
Analysis indicated that the chemicals and apparatus present were sufficient to convert a supply of pseudoephedrine to methylamphetamine. However, a supply of pseudoephedrine was not located amongst the items inspected.
Some items of apparatus bore traces of methylamphetamine and that equipment could be used in the manufacture of methylamphetamine.
While the documents all described the preparation of various drugs, none dealt with the iodine/hypophosphorous acid method.
The prosecution then pointed to the statement of Police Constable Gillingwater of 26 August 2005 (P7) and, in particular, evidence extracted from mobile telephones leased by and seized from each of the accused.
Those records disclosed that:
(1)there were numerous calls made between the McDonnell‑Smith and Randylle mobiles in the period leading up to the time of the police raid on 7 January. In particular, the Cosford mobile telephoned the McDonnell‑Smith mobile on 1 January, 2 January and twice on 4 February. Then, on 7 January but before the time of the police visit, there were two calls from the Cosford mobile to the McDonnell‑Smith number and four calls from the McDonnell‑Smith number to the Cosford number.
(2)Over the period between and including 6 January and the time of the police visit to the premises on 7 January, the mobile service of McDonnell‑Smith contacted the mobile service of Randylle on twelve occasions and, correspondingly, the Randylle mobile service contacted the McDonnell‑Smith service also on twelve occasions.
I further take note of the fact that the cars driven by Randylle and McDonnell‑Smith arrived at Cosford’s premises at the same time on that afternoon of 7 January, that there were thirteen dialling attempts between their respective mobiles on that day and prior to about 2 p.m. and that five of them were in the period of thirty minutes before their arrival, including one that occurred at 2.03 p.m., and at a time when, on any view of the evidence, each was alone in his/her car.
As to that evidence, defence counsel put that the Gillingwater evidence proved no more than that, at the relevant time, a particular telephone user number dialled the number of the other: it did not show that there was any connection made nor that any particular party actually spoke to any particular recipient.
Whilst I have carefully considered that contention, having regard to the possession of the mobiles by McDonnell‑Smith and Randylle and their seizure by police, their arrival at the accused Cosford’s premises at about 2 p.m. and the sheer number and timing of dialling operations between their telephones, I infer and find myself satisfied that in that relevant period, that is to say, on 6 and 7 January 2005, there were in fact telephone communications between McDonnell‑Smith and Cosford and between McDonnell‑Smith and Randylle.
What inferences I am prepared to draw from that conclusion remain to be considered.
I turn then to the statement of Tammy Lee Christmas, a woman who, for six months, had lived with her de facto husband in a caravan in the front yard of the premises at 21 Paula Avenue and whilst Cosford was living there. Her husband was a friend of Cosford and she saw him from time to time.
After they went to live elsewhere, Cosford visited them at their new premises.
She spoke of an occasion when she went to 21 Paula Avenue and saw Cosford there. He was, she said, cooking something in glassware on a gas burner. There were other persons with him. Cosford then told her he was cooking speed.
She believes she also went to his house on the following day and saw him. On that occasion, he was tipping a white powder substance from a bag onto some scales. He told her it was speed.
At some time later, Cosford visited their house and showed and gave her a photograph of a burner under some glassware containing a brown liquid. He said it was one of his “speed cooks”. She produced the photograph (P30). She said she recognised the assembly shown in it as being situated on the kitchen floor of the premises at 21 Paula Avenue, Windsor Gardens. That observation appeared to me to be corroborated by the video film (P31).
The accused Cosford applied to have excluded that evidence from Christmas, saying it was prejudicial to him and that its prejudicial impact outweighed its probative value – additionally, that it was in the nature of propensity evidence.
For its part, the prosecution opposed that application, saying that her evidence was receivable not as propensity evidence, but as evidence tending to show that the accused Cosford knew how to manufacture methylamphetamine and that he had an interest in doing it.
Having heard argument, I determined to allow the prosecution to lead the Christmas evidence and I should now say why:
(1)in the first place, I repeat my direction to myself that that evidence may not be used as some link in the proof of this charge, nor to support a conclusion that the accused Cosford is likely to have offended here because of evidence that he had manufactured or possessed methylamphetamine, or the means to make it, in the past. I reject any reasoning based on propensity or any bad character which the evidence reveals. I am conscious that in R v Long (2002) 137 A Crim R 263, evidence of an apparently similar kind was admitted on a propensity basis as well as on other bases, but here there is no clear evidence as to when the accused Cosford was previously involved in manufacturing methylamphetamine or, indeed, as to when the photograph was taken;
(2)because it tends to show that, prior to 7 January 2005, the accused Cosford knew how to produce methylamphetamine and had in fact successfully produced it on an earlier occasion;
(3)because it shows that the accused Cosford knew that he could successfully use the premises at 21 Paula Avenue for the purpose of manufacturing methylamphetamine and it tends to show he was willing to so use them;
(4)because along with the substances, equipment and documentary materials found in the house, including the methylamphetamine traces, it tends to show that Cosford was a person interested in producing methylamphetamine and because, along with the materials found in his locked bedroom, it tends to link those items with Cosford as opposed to his co‑tenant Lewis;
(5)because it tends to rebut the suggestion that the arrival of McDonnell‑Smith and Randylle at Cosford’s premises with cargoes of materials and equipment suitable for manufacturing methylamphetamine, was accidental, fortuitous or simply an innocent meeting.
In taking those views, I have regard to the remarks of the Court of Criminal Appeal in R v Long (supra), and R v Palaga (2001) 80 SASR 19, paras 50 to 53 inclusive, per Doyle CJ.
I further permitted the prosecution to lead evidence of Cosford’s prior purchases of iodine, but having considered that evidence further, I will, as I have said, ignore evidence of the purchase of 10 November 2004 and for much the same reasons as are set out in paragraph numbered (1) immediately above.
Even so, having regard to the evidence of the witnesses Patfull (P21) and Pigou (P26) and to the discovery of five kilograms of iodine in the house on the following day, what I am satisfied was Cosford’s purchase of that same amount from Chem‑Supply on 6 January, I regard the purchase of 6 January as directly relevant to the charge and I will take account of it.
Otherwise, I will take some, but limited, account, as an item of circumstantial evidence, of Cosford’s possession of the firearm and silencer, they being items, I am satisfied, that are associated with persons connected with drug manufacturing or trading.
Finally, I was invited by the prosecutor to have regard to the presence, in the front seat of the car driven by the accused Randylle, of an overnight bag containing clothing and toiletries, it being suggested that I should infer they both belonged to him and that they imply he was likely to have been staying overnight at 21 Paula Avenue.
As to that evidence, I should say that I attach very little weight to it at all. The inference that the accused Randylle was intending to be absent overnight from his home at Mintaro is an available one, but there is nothing in it enabling me to infer that he was intending to stay at the subject premises.
That completes my review of the evidence.
Prosecution Case
The prosecutor argued that following a consideration of the whole of that circumstantial evidence, I should find myself satisfied beyond reasonable doubt that the accused were involved in a joint enterprise to commit the offence charged – that is to say, to knowingly take part in the manufacture of methylamphetamine.
The prosecutor urged that I should infer, from the presence of the materials, equipment and documents found at 21 Paula Avenue; from the fact it was Cosford’s residence and that he had the knowledge of and experience in successfully manufacturing methylamphetamine there; from the telephone traffic between McDonnell‑Smith and Randylle and McDonnell‑Smith and Cosford; from the contemporaneous arrive of McDonnell‑Smith and Randylle at 21 Paula Avenue with pseudoephedrine, amphetamine and methylamphetamine traces on their hands on the day after Cosford’s iodine purchase and with all the equipment needed for such manufacture, albeit that pseudoephedrine was a missing but required chemical component, that the coming together of these people and events was neither accidental nor casual, but an event planned between them and for the purpose of taking part in that manufacture of methylamphetamine.
He invited the court to consider that chemical traces on the hands of McDonnell‑Smith and Randylle were not reasonably explicable in terms of a recent history of handling items found in their respective cars, as scientific examination had not discovered such traces on those items. More significantly, said the prosecutor, the presence of pseudoephedrine traces in conjunction with amphetamine and methylamphetamine pointed not merely to simple use of amphetamine or methylamphetamine, but to deriving methylamphetamine from pseudoephedrine by a manufacturing process.
He suggested that Randylle had, in his original police statement (P3), sought to distance himself from McDonnell‑Smith and the events of that day by saying that McDonnell‑Smith had asked him to help her transport materials from Eudunda to Adelaide and he had simply agreed to do it, albeit that he had later become suspicious as to what they were. I should consider that that explanation was no more than an attempt to divert attention from him, as, indeed, was his initial remark to police officer Copland (P2) whilst his car was being searched and in which he described himself, effectively, as a mere courier.

The prosecutor rightly conceded that the statements made by the accused Randylle are not evidence against the others, and I remind myself of that.
The fact that Cosford was not at the house at the time of the police visit was not of particular moment, said the prosecutor. He knew how to make methylamphetamine and had successfully done so before. The house was plainly his ordinary residence, he had used it previously to manufacture methylamphetamine, it contained some other materials and apparatus commonly used in methylamphetamine production, he had purchased a substantial quantity of iodine on the day before and had, I should infer, taken it to his house before 2 p.m. on 7 January.
Likewise, it was of no particular moment that the only further item required for manufacture, pseudoephedrine, was not found there because the presence of all the other materials and apparatus required for that particular method of manufacture – that is to say, the iodine, hypophosphorous acid and pseudoephedrine method – was compelling evidence that taking part in such a process was then planned.
I should conclude, said the prosecutor, that the arrival of McDonnell‑Smith and Randylle at the premises was neither accidental nor casual. They had arrived together, McDonnell‑Smith’s utility had been reversed into the driveway and she had been guided there by Randylle. That leads to the ready inference that their joint intention was to unload the large wooden box from the rear tray and take it into the premises. Likewise, I should infer that their arrivals and movements were coordinated so as to facilitate moving their cargoes.
That, then, was the circumstantial evidence relied upon by the prosecutor. It pointed, he said, to the conclusion that the house at 21 Paula Avenue was to be the centre of production and that steps in the process of manufacturing methylamphetamine were planned to take place then or shortly after.
I was otherwise addressed by the prosecutor on legal issues, but I will discuss these later.
Accused McDonnell‑Smith Submissions
Mr Dibden for the accused McDonnell-Smith said that his client’s case was not that her visit to the premises was accidental. Her defence was that the evidence simply did not go to prove beyond reasonable doubt that she took part in any relevant process.
He said that the evidence of the witness Christmas as to Cosford’s knowledge of how to manufacture and his experience of previously manufacturing methylamphetamine in the house did not implicate his client, and there was otherwise no evidence tending to show McDonnell‑Smith participated in any such manufacture, whether by herself or as part of a joint enterprise.
He pointed to the absence of the critical ingredient of pseudoephedrine and to the fact that the wooden box in the utility had been nailed shut. There was no evidence as to who had done that or whether McDonnell‑Smith knew what it contained. Otherwise, the presence of the box, the gas cylinder and the retort stands was unremarkable. There was no evidence, he said, that McDonnell‑Smith knew how to make methylamphetamine and the presence of chemical traces on her hands may well have been consistent with some physical contact by her with the items in her car. Even so, there was no indication of intimate contact with such items because her fingernail scrapings were clear. There were no fingerprints of hers found on any items and the telephone traffic did not prove that his client actually participated in or received any of the calls, only that an attempt had been made by some person holding one mobile phone to contact another mobile phone. Even were it conceded that Cosford likely knew that his client was arriving at the house, that does not prove her knowledge of or participation in any process of manufacture.
He then discussed the decision in Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392 and argued, on the basis of that decision, that I should conclude there was no evidence of any process of manufacture or of any imminent manufacture; indeed, the evidence suggested otherwise as no pseudoephedrine was present. There was no evidence that his client knew of Cosford’s purchase of iodine on the day before.
He contended that the courts had recognised a distinction between acts preparatory to the manufacture and acts intended to culminate in that manufacture. Here, at its highest, the prosecution case against his client established that she was a mere courier of items, perhaps preparatory to manufacture but not a participant in acts intended to culminate in manufacture. Whilst he conceded that proof of the charge did not require proof of a then operating laboratory, it was necessary to infer that his client’s participation in any of the events formed part of or a step in a systematic series of operations intended to culminate in manufacture. There was no such proof.
Hence, he argued, there was no case to answer or, if there was, that the charge against his client had not been proved beyond reasonable doubt.
Accused Randylle Submissions
Mr Charman, for the accused Randylle, adopted those submissions, saying that there was no proof that any process of manufacture had begun or was intended in the future, or if the position were otherwise, there was no proof that his client took part in or knew of it. It was not sufficient for the prosecution to contend that there was some ultimate intention of production (Avory at para. 59/60).
Here, he argued that the premises at 21 Paula Avenue were not, as the prosecutor had contended, an end point in any plan to manufacture; there was no pseudoephedrine present there. Put at its highest, the Crown case against his client established no more than that there were some preparatory steps taken towards possible manufacture, but that was not enough.
He submitted that the evidence of the witness Fielke (P4) was that he did not locate anything in the house relevant to a “clandestine laboratory”. I should say I have some difficulty with that particular submission, because it ignores the evidence of other police officers and experts as to what was found at the house, and indeed elsewhere, and as to its significance.
He argued that the evidence of the witness Christmas was not evidence against his client.
Otherwise, he referred to the statements and evidence of Dr Pigou to the effect that there was no established laboratory in the dwelling at the time he went there and “no clear indications of previous activity of a chemical nature”. I will take some account of that submission, but I note the prosecution case is not based upon an argument that at the time of the police raid there was, or indeed at any recent time had been, an established laboratory there.
Mr Charman contended that the critical ingredient of pseudoephedrine was not present in the cars or at the premises and there was no good evidence that any manufacture was intended to have taken place between the alleged dates or in the foreseeable future. There was no evidence of any imminent production or of any “process” within the meaning of s.32(4).
In particular, Mr Charman argued that there was no evidence of Randylle’s participation in any process. It was not shown that he knew, as opposed to suspected, what he was carrying in his car; indeed, the evidence suggested he was simply transporting items for his friend McDonnell‑Smith. In that respect, he urged I should take account of his police statement where he said he did not know anything about the purpose of the transport or, indeed, at the outset where he was going. At best, he was shown merely to have been suspicious of the materials or their purpose, but that does not mean that he suspected that there was to be a “process of manufacture” at any particular time. At best, his client was a participant in some preparatory act, but not in a process.
It was further suggested, as with McDonnell‑Smith, that the chemical traces on him were consistent with his handling the items in his or McDonnell‑Smith’s car.
There was no evidence he had been to 21 Paula Avenue before, that he was aware of Cosford’s prior purchase of iodine, that he had any money, that his fingerprints were on any item, nor of any relevant telephone contact between him and Cosford prior to his arrest. The presence of the overnight bag did not lead to any particular inference and there were no chemical traces found under his fingernails.
It was urged that the evidence against him did not establish a case to answer or that, if it did, I should not be satisfied beyond reasonable doubt as to his guilt. Again, counsel relied on the case of Avory (supra).
Accused Cosford Submissions
Mr Love, for the accused Cosford, adopted the prior defence submissions on the law and evidence.
He contended that the evidence of Christmas did not relate to the charge under consideration, that her contact with his client had been at an earlier time and that her evidence was of limited value and weight. He said there was insufficient evidence excluding the possible involvement of the witness and co‑tenant Lewis, with the items found in the house, in particular the manufacturing recipes. It was a matter of significance that his client was not at the premises when police came there and I might infer, from the fact his bedroom was locked, that he was intending to be away from the premises for some hours or days.
He urged that I should not readily conclude that it was his client who purchased the iodine on the day before the raid and that I should note that it was found in an open position in the house and not in his client’s room. He said I should also consider that iodine has other applications, although he did not advance that submission.
He said there was no evidence that his client had handled any items used in the manufacture of amphetamines or amphetamines themselves. I had some trouble with that submission because the evidence of police officer Greenlees (P17) identified Cosford’s fingerprints on a glass jar containing iodine found at the house (PAW2). Further, there was plain evidence of items containing amphetamine or methylamphetamine in the numerous plastic bags found in his locked room.
Mr Love submitted that on the basis of all the evidence, I should find no case to answer or, alternatively, I should not be satisfied beyond reasonable doubt as to his client’s guilt.
Legal Issues and Discussion
Much of the discussion and submissions centred upon Re Avory (supra) and the cases referred to therein.
In that case, the accused’s car had been stopped and searched. It had been found to contain various flasks, cylinders and jars containing hypophosphorous acid, iodine crystals and a cutting agent. No pseudoephedrine was found, nor was there, on the case stated:
evidence that the accused had taken part in the completed manufacture of any methylamphetamine or that what was found in the accused’s car was part of any larger, current or future operation for the manufacture of methylamphetamine.
The prosecution case rested upon the finding of the above materials and the opinion of Dr Pigou that a common method of manufacturing methylamphetamine was to combine hypophosphorous acid and iodine to convert pseudoephedrine to methylamphetamine.
The case stated was whether the words in the relevant section of the Controlled Substances Act 1984 (there and here, s.32(1)(b)) “take part in the manufacture”, included:
(1) acts preparatory to the manufacture of a drug of dependence or a prohibited substance where those acts are done for the purpose of manufacture, and are necessary for such manufacture, but where no subsequent steps in the process of manufacture occur?
(2) the transportation of all, or some of the materials, required for the manufacture where they are knowingly intended for manufacture?
Subject to certain other observations, those questions were respectively answered “no” and “yes”.
In his leading judgment, Perry J first discussed earlier references to the Court concerning the similar offence of taking part in the sale of a drug: see DPP Reference (No 2 of 1995) (SA) (1995) 65 SASR 508 and Question of Law Reserved on Acquittal (No 1 of 1996) (1997) 68 SASR 117.
On the basis of those decisions, the prosecution in Avory (supra) had argued that:
… absent any evidence of an established process of manufacture of illicit drugs, evidence of the taking of an initial preparatory step such as buying equipment of [sic] chemicals with a view to utilising them in a manufacturing process would be sufficient, provided that the intention was ultimately to use the articles in such a manufacturing process.
His Honour rejected that contention, observing:
Pausing there, it seems to me that in both the 1995 reference and the 1996 reference the conclusion that the accused was participating in a sale for the purposes of s 32 was predicated upon proof of facts capable of sustaining the inference that the relevant conduct occurred in the course of a sale which was under way, or in the course of an existing trading operation directed towards effecting a sale or sales.
He went on to discuss authorities in other jurisdictions. He noted the New South Wales Court of Criminal Appeal conclusion in R v Thomas (1993) 67 A Crim R 308, quoted at para. 66, that:
Where, as the Crown alleged to be the case here, a person manufactures something with a view to going on to use it in the manufacture of a desired end product then it is normally proper to regard that as a step in the process of manufacturing the end product. The fact that the process is interrupted at an intermediate stage does not take the case outside the terms of … the Act.
In R v BD (2001) 122 A Crim R 28 the facts were somewhat similar to those in Avory. The accused had been stopped for a random breath test, his car was searched and a bag containing quantities of Sudafed and, as well, a bottle of ortho phosphoric acid and a quantity of red phosphorous, together with various items of laboratory equipment and some weapons were found. It was common ground that the chemicals and equipment found comprised some but not all of the chemicals required to convert pseudoephedrine to methylamphetamine. Bell J, in that case, expressed the opinion of the court that:
The Crown submitted that Judge Graham erred in that he construed the terms of s 6 of the Act restrictively. I do not agree. I consider there is force to his Honour’s observation:
The statute does not refer to acts “leading to, preparatory to, or with a view to” the process of manufacture. The words of the statute themselves, in s 6, refer to taking or participating in any step or in causing any step to be taken in the process of that manufacture …
To my mind the acquisition and/or the transport of chemicals or equipment do not, without more, constitute steps in the process of manufacture. They are steps preparatory to the process of manufacture.
Further, in R v Marchione (2002) 128 A Crim R 574, Bell J approved a primary judge’s direction as follows:
… if the evidence is capable of establishing that the accused provided Sudafed or some other drug to another person, in the knowledge that there was a process in course, either by way of experimentation or trial and error, with the intention that the material he was supplying would or could in due course lead to the production of methylamphetamine, then there is a prima facie case for the accused to answer …
In my view what the Crown would need to establish is knowledge on the part of the accused of a contemporaneous process, which was part of a process of manufacture …
In R v Spicer [2003] NSWCCA 108, the appellant had also been stopped for a random breath test. In his car was a container of methylamphetamine oil, along with items of equipment, some of which contained traces of chemicals commonly used or produced in the course of manufacturing that product. It was accepted that the production of methylamphetamine oil is an intermediate step in the process of producing crystalline methylamphetamine and it was common ground that materials found in the car comprised nearly all apparatus necessary to convert the oil to crystalline form, save for the chemical hydrochloric acid.
The Court of Appeal, per Smart AJ, held that the jury should have been instructed that they had to be satisfied of more than the mere fact that the accused was transporting those materials. At para. 43:
The Crown had to establish that the appellant was aware that he was taking part in the process of manufacture. That is not established by proving that the appellant knew that prohibited drug was being transported. It is one matter to know that a prohibited drug is being transported and quite another to knowingly take part in the process of manufacture.
In Avory, Perry J followed those decisions and supported the view that it was necessary to draw a distinction between mere preparatory acts and acts which could properly be regarded as evidence of participation in a process. He accepted the appellant’s argument that “one cannot be held guilty of participating in a step in the process of manufacture if that process has not, in the relevant sense, commenced” and further submissions (at para. 96) that:
If it were shown … that the laboratory although fully established and operational was not then in operation, but that the accused was transporting the items found for the purpose of supplying the laboratory, that too may constitute participation in, or taking a step in, the process of manufacture of methylamphetamine in that laboratory.
If, on the other hand, it were shown only that the accused was transporting the ingredients found on the search of the vehicle from one storage depot to another, with a view to their use at some indefinite time in the future in a laboratory for the manufacture of methylamphetamine yet to be set up, that act of transporting would not constitute participation in, or taking a step in, the process of manufacture of methylamphetamine. It could not be said that the process had been so established and made operational that the act of transportation could be taken as directed towards the purpose of feeding that process, either immediately or in due course as required.
Even so, His Honour went on to say that it had to be made clear that (para. 97):
… to take part in the manufacture, or to take or participate in a step in the process of manufacture of an illicit drug, does not necessarily mean that there must be an existing laboratory, established for that purpose. The process of manufacture … may be constituted by a variety of means. It would be unwise to attempt in advance to define what might constitute such a “process”.
In that same case Besanko J, whilst concurring as to the response to the case stated, commented at para.105:
In my opinion, the critical question will be whether the accused’s acts are part of, or a step in, a systematic or planned or pre-arranged series of actions or operations which involve the making of a substance or material which is different from the substances or materials out of which it is made. Clearly, purchasing the substance or materials out of which the relevant drug is to be made and/or transporting the same may be acts which satisfy that description if they are part of a systematic or planned or pre-arranged series of actions or operations of the relevant type. On the other hand, merely purchasing … will be insufficient …
Here, defence counsel urged upon me that the factual situation was similar in many respects to that in Avory, or more particularly Spicer, and on that footing I should find there is no case to answer or otherwise that the prosecution case had not been proved beyond reasonable doubt.
I should say that I am not persuaded as to the extent of that similarity and, ultimately, my decision must be based upon the particular facts which I find.
Findings of Fact
Here, there was no dispute over the facts which were placed before me. The nub of the dispute is really as to what inferences should be drawn from those acknowledged facts and then as to whether the circumstantial evidence presented against each separate accused is sufficient that a jury, properly instructed, might lawfully convict and, ultimately, if I find the evidence sufficient for that purpose, whether or not each accused should indeed be found guilty.

In approaching those questions, I have considered whether the evidence admissible against each particular accused can properly be regarded as amounting to a step taken in the process of manufacturing within the meaning of that expression identified in Avory.
I have already outlined the uncontested prosecution evidence and I have already spoken of certain inferences which I am satisfied arise from the evidence.
I should then consider those items of circumstantial evidence said to be inadmissible against each particular accused.
As to the accused McDonnell‑Smith and Cosford, I should say that I take no account against them of the evidence of the out-of-court statements made by the accused Randylle.
But it was further urged upon me by McDonnell‑Smith and Randylle that I should disregard, as against them, the evidence of the witness Christmas and the inferences I have already drawn from it. I am not prepared to do that. Evidence that Cosford was interested in making methylamphetamine, knew how to make it, had previously made it and had done so at 21 Paula Avenue is, as I apprehend it, circumstantial evidence which I may take into account in considering the case against each of the accused. It also has the capacity to rebut any defence claim of innocent association. It does not emerge from an out‑of‑court statement, but constitutes proven facts, albeit that I accept that there was no direct proof that McDonnell‑Smith and Randylle were aware of them. It is evidence no different in character from the police observations that McDonnell‑Smith and Randylle arrived at Cosford’s house at about 2 p.m. that afternoon with specific materials and with traces of drugs on their hands – themselves facts Cosford cannot have directly known about, but which are nonetheless part of the circumstantial case against him.
For much the same reasons, evidence of the purchase of iodine by Cosford on 6 January is, as I apprehend it, properly admissible in the circumstantial case against each accused.
As to the evidence of Cosford’s possession of the weapon, for much the same reasons I am satisfied it is also admissible against McDonnell‑Smith and Randylle as an objective fact tending to support Cosford’s interest in possessing and manufacturing drugs, but I do not attach any significant weight to it; indeed, my decision would stand whether or not that evidence was available.
I turn then to the evidence generally admissible against all accused.
Plainly, the prosecution has shown that McDonnell‑Smith and Randylle were transporting items commonly associated with the production of methylamphetamine and containing residues of materials also associated with that production, and that they drove to 21 Paula Avenue, but on the authorities discussed, that of itself could not amount to participation in or taking a step in the process of manufacture of methylamphetamine. I say that because, taken at face value, those facts would not, on the basis of Avory (supra) prove any plan or intention to take any step in the actual process of manufacturing methylamphetamine, they would not disclose any systematic or planned or pre‑arranged series of actions involving such manufacture. If that was all the prosecution case amounted to against them, it would inevitably fail.
The same could also be said about a case against Cosford based solely upon the evidence of what was found in his house and on his purchase of iodine on 6 January.
But the prosecution evidence here goes much further than that, and I am satisfied beyond reasonable doubt that the evidence establishes that there was, indeed, a joint enterprise, involving all three accused, to knowingly take part in the manufacture of methylamphetamine. I say so for these reasons:
(1)In the first place, the arrest occurred not just during the course of transportation, but when the vehicles driven by McDonnell‑Smith and Randylle contemporaneously arrived at a particular destination, namely, 21 Paula Avenue. That destination was significant because it happened to be the residence of Cosford, a place where other items used in the manufacturing of methylamphetamine were found and a place to which a substantial quantity of iodine had been delivered within the past day or so. Further, Cosford lived there and he was a person who had the knowledge of and experience in manufacturing methylamphetamine, and at those very premises.
(2)Cosford was not at the premises at the time of the arrival of McDonnell‑Smith and Randylle, but I am satisfied he was acquainted with them, and they with him and with each other, because of:
(a)the timing and circumstances of the arrival at the premises of McDonnell‑Smith and Randylle, their telephone contacts and the complementary nature of their loads leading to the inescapable inference they knew each other;
(b)evidence that Cosford’s licence details and address and the address given by him to Chem-Supply match the address of McDonnell‑Smith at Eudunda;
(c)the telephone communications I have spoken about between Cosford and McDonnell‑Smith ;
(d)Randylle’s own acknowledgment that he knew Cosford and McDonnell‑Smith and, indeed, followed McDonnell‑Smith to 21 Paula Avenue at her request. That is not, however, evidence admissible against Cosford or McDonnell‑Smith;
(e)whilst there is no evidence of telephone or other contact between Cosford and Randylle prior to the time of arrest, I am satisfied that arrangements for Randylle’s arrival at the premises were concluded between him and McDonnell‑Smith and between McDonnell‑Smith and Cosford, that it was part of an arrangement or plan involving all three persons.
(3)I am satisfied, on the evidence, that the circumstances of the arrival of both vehicles at 21 Paula Avenue, the telephone contacts which preceded it and the participation of both drivers in seeing the utility reversed into the driveway, lead to the inference that it was intended to unload their contents there. It brought together at the premises all the materials and apparatus and experience required to manufacture methylamphetamine, save for pseudoephedrine.
(4)I was invited by Randylle’s counsel to take account of remarks he made at the scene and in his witness statement, as indicating that he was, at worst, a courier who suspected, but did not know of, a planned manufacture. I reject that as a rational explanation consistent with innocence because:
(a)of the presence, unexplained as I find it, of amphetamine, methylamphetamine and, in particular, pseudoephedrine on his hands, the latter strongly suggesting an involvement well beyond his claimed level of participation;
(b)of his frequent contact or attempts at contact with McDonnell‑Smith and she with him over a period of 14 hours before the arrival at 21 Paula Avenue and from which I infer a greater level of involvement than mere assistance in cartage;
(c)whilst his remarks at the scene, in some respects, seek to cast suspicion upon McDonnell‑Smith, they also suggest “us” (as I apprehend it, he and McDonnell‑Smith) as being on the periphery of what was occurring. In other words, he appears to be ready to associate himself with her situation and that, I infer for reasons above, is more than that of being a mere courier;
(d)of the fact that he knew Cosford and, on his own account, suspected his previous association with manufacturing methylamphetamine;
(e)given what he had, on his own account, helped load and was carrying and, as well, the residues on his hands and his claimed knowledge of Cosford, I am satisfied he knew, not merely suspected, what the materials were for;
(f)it may be that his role was to play a lesser part in the process than the others, but I am nevertheless satisfied he was part of a joint enterprise with McDonnell‑Smith and Cosford in the proposed manufacture.
(5)I was invited by Cosford’s counsel to consider the possible implication of Cosford’s co‑tenant, Lewis, in these events in place of his client, but I reject that as a rational explanation consistent with Cosford’s innocence, and for these reasons:
(a)there is no evidence whatsoever of any acquaintanceship between Lewis and either of McDonnell‑Smith or Randylle;
(b)no items potentially connected with the manufacture of methylamphetamine were found in Lewis’ bedroom in the house, whereas the same were found in Cosford’s locked room;
(c)whilst items so connected were also found in common areas of the house, my finding as to the provenance of the five kilograms of iodine and Cosford’s demonstrated interest in methylamphetamine and in producing it, satisfy me that they were connected with Cosford and not Lewis.
(6)The evidence reveals that within the two vehicles were all the items of equipment required to manufacture methylamphetamine by the iodine/hyposphorous acid/pseudoephedrine method. As well, within those vehicles were quantities of hypophosphorous acid, ethanol, caustic soda, acetone and residues of the substance iodine. On the evidence of Dr Pigou, it is apparent that all that was needed to complete the manufacture of methylamphetamine, apart from the materials in the car, were quantities of iodine and pseudoephedrine, and iodine was, of course, found at the house.
(7)21 Paula Avenue was the residence of the accused Cosford. That emerges from other witnesses and from his own record of interview. I am satisfied, for the same reasons expressed above, that he was at his premises on 6 or 7 January, because I infer from the evidence of his five-kilogram iodine purchase on 6 January, that he took that purchase there.
(8)As I have discussed above, I am satisfied from the evidence of the witness Christmas and the evidence as to materials otherwise found in the premises that Cosford knew how to manufacture methylamphetamine, that he had had the experience of making it before, that he was interested in the product and that he was prepared to manufacture it in that house.
(9)Whilst no pseudoephedrine was located in the cars or the house, I infer from the presence of all the remaining materials and apparatus required for production, that it was intended to bring that substance to the premises for the manufacture to begin and, in this respect, I take account of the pseudoephedrine traces found on the hand swabs of McDonnell‑Smith and Randylle and of the by-products found in the jar in Cosford’s bedroom.
(10)I turn then to the evidence of Cosford’s prior possession of methylamphetamine (the remains found in plastic bags and the evidence of Christmas) and his earlier manufacture of it (the residues found in his room) and to the evidence of amphetamine, methylamphetamine and pseudoephedrine traces on the hand swabs of McDonnell and Randylle.
It was argued that an explanation for the latter, consistent with innocence, is that those two parties had previously been handling the cargoes found in their respective cars and that this had likely deposited the traces on their hands. I do not regard that as a rational hypothesis. There was evidence of scientific testing carried out by Dr Pigou on all of those items yet none of it revealed the presence of amphetamine or pseudoephedrine on them.
I am satisfied that all three accused had at or prior to the time of arrest been in possession of methylamphetamine. I do not infer from this that each therefore committed the offence charged, but I take account of it as an item of circumstantial evidence disclosing that each of them had an interest in the substance (see R v Long, supra, at paras 76 & 97).
(11)In summary, it is then the convergence of all those pieces of evidence which I regard as significant:
(a)the fact that, absent pseudoephedrine, on 7 January there were assembled at the premises at 21 Paula Avenue, all the materials and equipment required to manufacture methylamphetamine, at the residence of a person who knew how to do it and had previously used the premises to do it;
(b)there is then a chronological convergence: on 6 January Cosford had purchased five kilograms of iodine and on the following day, and pursuant to an arrangement between them, McDonnell‑Smith and Randylle had arrived at his premises with all the remaining materials and equipment required to produce methylamphetamine, save for pseudoephedrine;
(c)there is then the fact that the accused knew each other and each had an interest in methylamphetamine.
The evidence does not prove there was an existing laboratory at the Paula Avenue premises established for the purpose of manufacturing methylamphetamine, but I am satisfied that it shows there was a plan to set up that laboratory and to take steps in the process of manufacturing methylamphetamine within a very short time of 2 p.m. on 7 January. It was not a case, as I find it, of there being mere preparatory steps towards that goal with no knowledge of or specific intention to then manufacture or with a vague intention to manufacture at an indefinite time in the future.
Having regard to my above conclusions and excluding those items of circumstantial evidence inadmissible against particular accused, I am nonetheless satisfied beyond reasonable doubt that between 1 and 8 January 2005 at Windsor Gardens, each of the accused was part of a joint enterprise, whether or not each knew of the entire role to be carried out by the others, to knowingly take a step in the process of manufacturing methylamphetamine, a process that was then planned and imminent. I am not persuaded that in respect of any one of the accused, there is any reasonable hypothesis consistent with his or her innocence.
By reason of those conclusions, the accuseds’ no case submissions must fail and I find the accused McDonnell‑Smith, Randylle and Cosford each guilty of the offence as charged.