R v McLEOD
[2013] WADC 11
•23 JANUARY 2013
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: R -v- McLEOD [2013] WADC 11
CORAM: STAUDE DCJ
HEARD: 21 JANUARY 2013
DELIVERED : 23 JANUARY 2013
FILE NO/S: IND 1083 of 2012
BETWEEN: THE QUEEN
AND
CAMERON ALLEN McLEOD
Catchwords:
Criminal law - Evidence - Application to produce propensity evidence pursuant to s 31A of the Evidence Act 1906 - Importation of a bordercontrolled precursor - Intention to manufacture methylamphetamine admitted - Whether evidence of conduct leading to conviction for manufacture of methylamphetamine and related offences in 2007 has significant probative value
Legislation:
Criminal Code Act 1995 (Cth)
Evidence Act 1906 (WA)
Result:
Application dismissed
Representation:
Counsel:
Crown: Mr A Putt
Accused: Mr S Gabriel
Solicitors:
Crown: Commonwealth Director of Public Prosecutions
Accused: Stephen Gabriel
Case(s) referred to in judgment(s):
Bennett v State of Western Australia [2012] WASCA 70
STAUDE DCJ:
Introduction
The defendant is charged with an offence against s 307.12(1) of the Criminal Code Act 1995 (Cth) that on 22 March 2012 at Perth International Airport he imported a substance intended to be used for the manufacture of a controlled drug (methylamphetamine), being a border‑controlled precursor, pseudoephedrine, the quantity imported being a marketable quantity.
The prosecution has applied for leave pursuant to s 31A of the Evidence Act 1906 to lead evidence of prior conduct in relation to the manufacture of methylamphetamine in 2007 in respect of which the defendant was convicted of a number of offences against the Misuse of Drugs Act 1981 (WA).
Section 307.12
Section 307.12 provides:
(1)A person commits an offence if:
(a)the person imports or exports a substance; and
(b)either or both of the following apply:
(i)the person intends to use any of the substance to manufacture a controlled drug;
(ii)the person believes that another person intends to use any of the substance to manufacture a controlled drug; and
(c)the substance is a border-controlled precursor; and
(d)the quantity imported or exported is a marketable quantity.
Penalty: Imprisonment for 15 years or 3,000 penalty units, or both.
(2)The fault element for paragraph (1)(c) is recklessness.
(3)Absolute liability applies to paragraph (1)(d).
(4)Subsection (1) does not apply if:
(a)in relation to conduct covered by subparagraph (1)(b)(i) - the person proves that he or she neither intended, nor believed that another person intended, to sell any of the controlled drug so manufactured; or
(b)in relation to conduct covered by subparagraph (1)(b)(ii) - the person proves that although he or she believed that the other person intended to use the substance to manufacture a controlled drug, he or she did not intend to sell any of the substance to the other person.
Note: A defendant bears a legal burden in relation to the matters in subsection (4) (see section 13.1).
Admissions of fact
The facts of the alleged offence are substantially admitted. At the hearing of the application counsel for the defendant handed up an unsigned document prepared by the Commonwealth Director of Public Prosecutions which set out 13 admissions of fact made pursuant to s 32 of the Evidence Act. The defendant's counsel formally made the admissions in court.
The defendant admits that, as alleged, he imported a quantity of 17.94 grams of pseudoephedrine in the form of 908 tablets in 91 blister packets, 71 of which were marked 'Panadol Cold & Flu' and 20 marked 'Panadol Cold & Flu Night'. He also imported 40 tablets in four vials which were labelled 'Ephedrin'. Pseudoephedrine and ephedrine are prohibited imports under the Customs (Prohibited Imports) Regulations 1956. The defendant did not have permission to import them.
The defendant also admits that he intended to use some of the imported substance to manufacture methylamphetamine. But for his admission, the defendant, having imported the substance without authority, would be taken to have had that intention, and would bear the legal burden of disproving that element (s 307.14).
Issue at trial
It was made clear by defence counsel that the only issue at trial would be the defendant's intention to sell any of the methylamphetamine intended to be manufactured. It was conceded that the defendant bore the onus of proving on the balance of probabilities that he did not intend, and did not believe that another person intended, to sell any of the methylamphetamine so manufactured (s 307.7(4)).
Prior conduct
The Crown seeks leave to adduce evidence of the material facts of a number of offences of which the defendant was convicted related to his involvement in the manufacture of methylamphetamine in July 2007.
On 25 November 2008 the defendant was convicted of manufacturing methylamphetamine between 1 July and 14 July 2007. The facts of this offence were that police executed a warrant at an address in Hilton where the defendant and a co‑offender were staying. The co‑offender's car was found to contain a number of items used in the manufacture of methylamphetamine, including a 9 kg gas cylinder containing ammonia gas, a 25 kg bag of caustic soda, a glass jug with paper towel and white solid residue which was found to contain 17.7 grams of approximately 97% pure ephedrine, a 3‑litre beaker with traces of ephedrine detected on the interior, a 2 1/2‑litre bottle of sulphuric acid, a plastic thermos flask containing a liquid found to be ephedrine and toluene, a large quantity of clipseal bags, 12 blue round tablets of Demazin, and 24 tablets likely to be Demazin, both likely to contain pseudoephedrine, and other items. In a car belonging to the defendant there were found 72 lithium batteries and a container of table salt. At the rear of the premises there was a 44‑gallon drum containing about 100 litres of toluene.
These items were found by a chemist from the WA Chemistry Centre to have been used for the manufacture of methylamphetamine.
A further offence was that on 30 July 2007 the defendant attempted to manufacture methylamphetamine. On that occasion the police executed a search warrant at Karnup where the defendant and a co‑offender were present. A large stainless steel toolbox was located which contained precursor chemicals used to manufacture methylamphetamine. Ephedrine weighing 19.2 grams had been extracted.
It was not an element of either of the offences of which the defendant was convicted on 25 November 2008 that he intended to sell any methylamphetamine which had been manufactured or which he intended to manufacture. Nor did the statement of material facts disclose any such intention.
On the defendant's behalf it was submitted that he, then aged 25, had been a methylamphetamine user since age 19 or 20 and had developed an addiction. He acquired a substantial drug debt. In order to discharge his debt he provided services to his dealer. Initially he stored chemicals for his dealer who was a manufacturer and later he learned to manufacture methylamphetamine and did so, or attempted to do so, on the occasions in respect of which he was charged. It was submitted that the defendant had committed the offences under a degree of duress.
The learned sentencing judge found that the defendant was under some pressure from the person who had supplied him with drugs, but did not accept that it amounted to duress. He found that the fact that he engaged in manufacturing in order to repay a person for drugs could not be said to be unusual and was not greatly mitigatory. No other findings were made in relation to the defendant's intention with respect to the methylamphetamine manufactured by him.
The Crown's submission
It is apparent that the Crown's written submissions were lodged prior to the defendant giving notice that he would admit that he intended to manufacture methylamphetamine. According to the written submissions, the purpose of admitting the evidence of the prior conduct would be to establish a propensity to manufacture in order to disprove an innocuous intent in relation to the imported substance. There being no issue as to the defendant's intention to manufacture, this basis for the application falls away.
Nevertheless, the Crown maintains that the evidence of the prior conduct in 2007 has significant probative value and that the prosecution should be allowed to adduce evidence of the relevant conduct in order to disprove any assertion by the defendant that he did not intend to sell any methylamphetamine manufactured using the imported substance. Evidence of the convictions (and of related convictions for possession of pseudoephedrine, ammonia gas and lithium) would prove the material facts on which they were based: Bennett v State of Western Australia [2012] WASCA 70 [66]. From these facts the jury could find that the defendant's prior conduct evinced an intention to sell.
Elaborating on this submission, Mr Putt explained that evidence would be given by a chemist that the quantity of methylamphetamine capable of being manufactured with the imported substance is 20 grams at a purity of up to 80%. He said there would be evidence that methylamphetamine of this purity could be bulked using a cutting agent. There would also be evidence as to the street value of methylamphetamine sold in various quantities. This evidence, he submitted, would support an inference that at least part of the quantity of methylamphetamine capable of being manufactured using the pseudoephedrine was intended to be sold by the defendant.
The Crown submitted that, similarly, the evidence of the quantities of chemicals used in the manufacturing offences committed in 2007 would demonstrate a level of manufacturing from which it could be inferred that it was intended that the methylamphetamine so produced would be sold to others. In this respect it was submitted that the evidence of the prior conduct had significant probative value in that it could rationally affect to a significant extent the jury's assessment of the probability that the defendant intended to sell the methylamphetamine which he intended to manufacture.
Significant probative value
As I have noted, the issue at trial will be whether the defendant intended to sell the methylamphetamine which he intended to manufacture with the imported substance. The defendant bears the burden of proving to the jury on the balance of probabilities that he did not have that intention and that no other person who intended to use the substance to manufacture methylamphetamine had that intention.
Evidence given at the trial of the amount of methylamphetamine capable of being manufactured using the imported substance is circumstantial evidence upon which the Crown may rely to rebut the defendant's contention. Arguably, it may be inferred from evidence of the quantity and value of the potential product that it was unlikely that the defendant had no intention to sell any of the methylamphetamine so manufactured. That will be a matter for the jury to decide on the evidence as a whole.
In my view no such inference can be drawn from the prior conduct. The 2007 offences have no significant probative value with respect to the issue of whether the defendant intended to sell any of the methylamphetamine which he intended to manufacture using the imported substance.
The defendant was sentenced on the earlier occasion on the basis that he became involved in the manufacture of methylamphetamine at the behest of his drug supplier to whom he was heavily indebted. He was not proved to be a dealer. Whilst the manufacture of methylamphetamine at that time may have had a commercial element, it was not found to be a fact by the learned sentencing judge that the defendant was involved in selling the drug or had an intention to do so.
Conclusion
It follows that the threshold of admissibility has not been crossed. It will not assist the Crown to disprove the defendant's contention that he had no intention to sell to prove that he participated in manufacturing methylamphetamine on a prior occasion. The prior conduct is not relevant evidence of propensity for the purposes of s 31A(1). Therefore, it cannot have significant probative value as such: s 31A(2)(a).
Even if the evidence of the prior conduct were capable of proving a propensity to manufacture methylamphetamine for sale, which I have found it does not, I am not satisfied that the probative value of the evidence compared with the risk of a fair trial is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial, the risk being that the jury might particularly overvalue the probative effect of the evidence and conclude that the accused must have had the requisite intention simply because he has previously been convicted of manufacturing offences.
There is another obvious risk in this case. The jury may be unduly distracted by an enquiry into the circumstances of the prior conduct from the real issue of the defendant’s intention at the time of the importation. The potential for an unfair trial is unacceptable.
Having said that, it seems to me that whilst the evidence of the defendant's prior conduct may not be adduced in the Crown's case on the issue of his intention to sell (in respect of which he bears the legal burden), it is foreseeable that circumstances could arise at trial where, depending on the evidence given by the defendant, it may be appropriate for the Crown to be given leave to cross‑examine as to credit by reference to that conduct. Those circumstances cannot be anticipated at this stage.
For these reasons the application is dismissed.
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