R v Merhi - [2020] NSWDC 821

District Court

New South Wales

Medium Neutral Citation: R v Merhi [2020] NSWDC 821
Hearing dates: 30 September 2020; 5-16 October 2020; 5 November 2020
Decision date: 05 November 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
VERDICTS - Guilty to Count 1 & Count 3
Guilty to alternate count to Count 2
Not Guilty – Count 4

Catchwords:
TRIAL BY JUDGE – knowingly take part in manufacture of large commercial quantity of prohibited drug – supply cannabis – consciousness of guilt – circumstantial evidence – admissions – prior inconsistent statements – recent inventions

Legislation Cited:
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Evidence Act 1995

Cases Cited:
Fleming v The Queen (1998) 197 CLR 250
Siafakas v R [2016] NSWCCA 100

Category: Principal judgment
Parties: Regina (Crown)
Joseph Merhi (Accused)
Representation: Counsel:
Mr N Adams SC (DPP)
Mr P Godkin (Accused)

File Number(s): 2018/002923
Publication restriction: No

Judgment

Introduction

The accused was arraigned on 30 September 2020 in respect of four counts to which he pleaded ‘not guilty’. Count 1 is an allegation of, between 1 January 2017 and 29 September 2017 at Galston, taking part in the manufacture of an indictable quantity of a prohibited drug, to wit, methylamphetamine; Count 2 an allegation of, at the same time and place, taking part in the manufacture of a large commercial quantity of a prohibited drug, to wit 3,4-methylenedioxymethylamphetamine (MDMA) and Count 3 is an allegation of, at the same time and place, taking part in the manufacture of a large commercial quantity of a prohibited drug, to wit, Gamma butyrolactone (GBL), each offence being committed on the Crown case in the period of time up to 29 September 2017, the date of the arrest of the accused. Count 4 is an allegation of supply a prohibited drug, to wit cannabis leaf, between 1 January 2017 and 29 September 2017. All charges brought pursuant to the provisions of the Drug Misuse and Trafficking Act 1985 (“the Act” or “DMT”)
The trial is one by Judge in accordance with the relevant provisions at ss 132 and 132A Criminal Procedure Act, 1986 with the consent of the Crown. The trial was delayed a few days after arraignment to permit counsel for the accused the opportunity to obtain instructions having come into the trial at short notice. Judgment was delayed by my requirement to sit in Wollongong for 2 weeks after submissions concluded on 16 October 2020.

Factual background to the issues at trial

All the offences are alleged to have occurred at a property on which is the residence of the prisoner (shared at the time with his mother) at 1 Mansfield Road Galston. The Court conducted a view of the property and all relevant parts of the property on Wednesday 7 October 2020. The property is a semi-rural property. I am informed it is approximately 5 acres in area with a residence facing Mansfield Road, behind which are a number of bird cages of some size occupied by a number of exotic birds owned by the accused, behind which is a building which I will describe for the purposes of this judgment as the “rear shed”, which contained the alleged drug manufacturing equipment, as it is described in Exhibit B. The bird cages were approximately midway between the residence of the accused and his mother (at the time of the police search on 29 September 2017) and the “rear shed”. The accused gave evidence in relation to his care of exotic birds, particularly Macaws that he purchased, bred and sold. The bird ‘cages’, were largish structures, at least 2 were present at the time of the view, perhaps more, and in dimension were each higher than an adult male’s height and varied in length and width, but were each at least three or four metres long and from what I saw approximately a couple of metres wide at least. They were bird enclosures around which I would expect the accused, having gained entry, could walk upright. Although what he specifically did in terms of care and feeding of the birds was not the subject of detailed evidence. Certainly, at one stage his counsel, somewhat over enthusiastically, referred to him being distracted from the illegal activities in the “rear shed” where the Crown alleges prohibited drugs were manufactured, by his “feverish” attention to, and work with, his exotic birds.
The property in topography slopes away from Mansfield Road and is abutted to the western side by Bayfield Road, which runs perpendicular to Mansfield Road. The property is surrounded by similar semi-rural properties. The back part, for two thirds of the property, is occupied by extensive greenhouses which were relevantly leased to a commercial cucumber grower. That person is Salvatore Calacoci. He and Mr McIntyre, an employee of his, gave evidence. Between the “rear shed” and the greenhouses are either a number of adjoining buildings, or one building with a number of sections, which appear to be storage and garage facilities for the lessee of the hothouses and an office occupied by that lessee. Part of that building was also used as storage by the accused. At the time of the ‘view’ the area around the house down to and just behind the “rear shed” appeared more neglected than the aerial photos of the property taken in 2017 reveal. There was present a great deal of material either left, or dumped, in the vicinity of the “rear shed” which apparently was not there when police raided the property on 29 September 2017. Exhibit B and the photographs in Exhibit B1 give a clear view of the entire property and parts of the property from an aerial perspective. But they do not properly reflect the extent of the “dropping away” of the land as it falls away from Mansfield Road.
Mansfield Road runs roughly east-west, Bayfield Road runs north-south. There is a ‘side gate’ on Bayfield Road used by the lessee. All relevant events and significant discoveries by the police occurred on that part of the property occupied by the accused, his mother and occasionally his brother George (although that brother apparently lived in Perth at various times during 2017). The property was owned by the accused’s parents. In 2017 the accused’s father was in a nursing home. I understand that the property was run as a commercial market garden business by the accused’s parents and the accused in years past, but that the greenhouses and attached support buildings were leased in the period between 2013 and 2015 to Mr Calacoci.
Police, after some investigation, attended upon the property on 29 September 2017 with a search warrant. On search of the property it was discovered within the “rear shed” various items consistent with an ongoing process of manufacture of various prohibited drugs, which were identified in due course, that were present on a number of items or in a number of vessels, containers and/or plastic bags. The drugs identified within the premises were methylamphetamine, GBL and MDMA. Also found were a number of precursors for the manufacture of each of these drugs in varying quantities and in a condition reflecting ongoing manufacture of prohibited drugs, past manufacture and future manufacture. For example, clearly marked bags and containers that formerly held within them particular precursors and other items containing such precursors. There were also found various items necessary for the manufacture of the particular prohibited drugs, including storage containers, measuring containers and reaction vessels suitable for chemical distillation, including a beer keg and a large metal cylinder with fittings that would permit the distillation of prohibited drugs. Other artefacts were found consistent with a person or persons involving themselves in the manufacture of prohibited drugs on site, including rubber gloves and latex gloves. No fingerprints or DNA profile of the accused were found on any relevant item.
The Crown case was dependant primarily upon the results of the police investigation from the search of the “rear shed” and the family home and the seizure and scientific examination of various items including samples of waste products and quantities of what turned out to be prohibited drugs, as well as admissions by the accused in his ERISP of 3 January 2018 (Exhibit L) and the proximity of the accused’s residence to the “rear shed”. Although he expressly denied knowledge of the processes of manufacture or that he knew that the “rear shed” was used for those processes, he admitted he had rented the “rear shed” to a person he did not know beforehand some months before. The Crown also relied upon other physical evidence such as the state of particular areas of the property where grass appeared to have been “burnt” or damaged. From an area of such “burning” at the rear of the “rear shed”, soil samples were taken showing the presence of MDMA. Another area to the west of the “rear shed” which had damaged grass was observed both by aerial photography at an earlier time and by Mr Calacoci. Samples were taken of soil from there. Although no prohibited substances were identified the damage was consistent with damage caused by acidic or caustic chemicals.
The analysis of the police discoveries and results of analytical testing by a qualified forensic chemist reached conclusions that the totality of material obtained from the investigation reflected three processes of manufacture of prohibited drugs. That is, the manufacture of methylamphetamine, GBL and MDMA. The forensic chemist also sought to identify and/or estimate from the available physical evidence the quantity of prohibited drugs that were or could be identified as manufactured, either by reference to the presence of particular prohibited drugs within items in the shed, or an analysis of unaccounted for precursors for the manufacture of GBL. The Crown relied upon the presence of containers for the solvent ‘Shellite’ within the garage of the house occupied by the accused and his mother and the accused’s purchase of items from a plastic wares supplier consistent with items found within the rear shed used in the manufacture of prohibited drugs. There was other circumstantial evidence relied upon by the Crown allegedly linking the accused to the manufacture of prohibited drugs which I will detail later.
The accused at no time has identified the person or persons who leased the “rear shed”. From the beginning he denied any knowledge of what was occurring within the shed or any knowledge of any process of manufacture of prohibited drugs on his property. The accused had a key to the padlock of the rear shed on a keyring in his possession at the time of the police execution of the search warrant. The accused said there were “two keys for the shed.” The other key was given to “another guy” whose name he did not know.
With regard to Count 4, concerning the supply of cannabis leaf, during the course of the police search of the premises a quantity of cannabis leaf, ultimately found to weigh 1.391 kg was located by police in a large blue plastic bag found on the rear of a quad bike in the vicinity of the rear shed. In a subsequent electronic interview the accused admitted that the cannabis leaf was his but that he purchased it for personal use. He said he had left it where it was and forgotten about it. As for other aspects of matters arising out of the Crown case, the accused’s responses to questions about those matters will be analysed later. Police had conducted a telephone intercept operation in respect of the accused’s mobile phone in September 2017. Although no incriminating conversations occurred relevant to Counts 1-3, some of the recorded conversations involved conversations in which the accused spoke of suppling cannabis.
The Crown case in relation to Counts 1 to 3 was that the accused “knowingly took part” in the processes of manufacture alleged as defined by s6 (a) and (c) Drug Misuse and Trafficking Act, 1985. That is, that the accused caused, suffered or permitted any step in the relevant process of manufacture to occur and/or provided premises or permitted premises to be used for the purposes of manufacture. It was not the Crown case that the processes of manufacture were conducted by the accused. There is no “direct” circumstantial evidence such as fingerprints or DNA profile evidence to connect the accused with rubber or latex gloves found on the premises obviously related to the process or processes of manufacture. The wearing of gloves being a minimal safety requirement. Nor any evidence directly connecting him with items used in the manufacture of prohibited drugs, other than the use of a number of items in the process that belonged to him or were similar to items earlier purchased by him, such as plastic containers and measuring vessels.
The accused was ultimately arrested and interviewed on 3 January 2018. The accused denied knowledge of what was going on inside the “rear shed”, in other words any process of manufacture of prohibited drugs and also was unable to identify the person to whom he said he had let the rear shed some months before. He admitted having one of the two keys to the padlock or lock of the “rear shed”. He said that he had not been into the rear shed since “a while ago”.
In summary, in the electronic interview, he said the person who leased the shed from him had a Middle Eastern name, that there was a rental agreement with a photocopy of the person’s driver’s licence and Medicare card, but the rental agreement was not lodged with the Rental Board. He had not been able to find the rental agreement. He said inter alia “it’s not a case of protecting him, this man. I don’t know him from a bar of soap. I’m not going to take the rap for him”. He said that the man was not known to him before, just “turning up” while he was mowing. He charged the person $200 a week and the person paid him in cash initially with a one-month payment of $800. He “may” have been in the shed three or four months prior to the execution of the search warrant. However, he may have rented the shed out as long ago as nine months before. He said his mother knew someone was using the shed and he told her he was receiving money. He did not cover up the all windows (which were covered on execution of the search warrant) and did not go into the shed after it was rented out. He acknowledged purchasing items from the business “People in Plastic” which included jugs and containers, but used those to mix up birdseed and for other purposes unrelated to drug manufacture. He said the 200L drum, reflected in the second invoice from that business (Exhibit G2), had not been delivered. He said that the ‘Shellite’ drums in the garage he obtained from a person after seeing them in a driveway of a house, but he could not remember the name of the person from whom he received them. He said the drums were empty when he got them and that he was going to use them to store fuel. He knew that the contents could be used as a solvent, but primarily he thought ‘Shellite’ was used as lighter fluid. He said that he didn’t know that drugs were being manufactured in the shed and did not notice the dead grass or burnt grass at the rear of the shed (Exhibit C). He knew nothing about the “burn” marks to the west of the “rear shed”.
He had no clear memory of the use of the forklift and whilst he admitted owning a couple of 1000 litre “IBC” containers to mix fertiliser, he did not know of those containers being used to store waste fluid from drug manufacture. However he was aware that “those guys” renting the shed out had used Mr Calacoci’s forklift because they had asked him if they could use the forklift, which he got for them. But later it was taken back by the lessee. He corrected himself as to his reference to “those guys”, to say that there was only one person using the shed that he knew of and his communications with that person were by note. He admitted in the interview having money problems, not earning any money apart from Centrelink payments. He admitted that some of the drums found in the shed by the police belonged to him, but they had been outside the shed previously. He had used a number of drums and tubs found in the shed for feeding his birds. As for “blue drums” found in the “rear shed” he said that he probably owned a couple of them in the past.
As to the cannabis leaf found, he admitted it was his; that he left it outside the shed and forgot about it. He wanted to dry it out and smoke it. It was marijuana that was going to be “chucked in the bin” by the persons who gave to him. He thought it was a way for him to get access to some marijuana that was “leafy”, but it was not potent.

The course of the trial

A large number of exhibits were tendered in the Crown case and the exhibit list for the trial is the annexed to this judgment. All exhibits have been taken into account in the consideration of the issues raised by the parties, although I need only refer to particular exhibits in the context of dealing with specific aspects of the evidence. The Crown case consisted of evidence, both oral and in a statement form, from various police officers who were involved in the execution of the search warrant on 29 September 2017 and the subsequent searches on that date and the following day, as well as the arrest of the accused on 3 January 2018 and the electronic interview that was conducted with him (Exhibit L). In relation to the electronic interview, the accused was accompanied by a solicitor and obviously had advice both from investigators and the solicitor as to his right to silence. The principal police witness was Detective Keary who gave evidence at various points of the trial, either producing or reading statements of police involved in various aspects of the investigation, producing transcripts of at the telephone intercepts operation conducted in September 2017 (Exhibit J – disc of telephone intercepts) or produced the results of downloads of Cellebrite examination of the two phones belonging to the accused, one (an iPhone 6) operated by him up until a few days before the police search as it was “pawned” on 26 September 2017 (Exhibits M3, M4 and P) and the extraction report relating to the Samsung telephone that the accused only operated on 30 September 2017 (Exhibits P1 and P2) which he had obtained from his mother. He received $300 for his iPhone. Another “extraction report” from his iPhone was tendered in cross examination of the accused (Exhibit R1), relating to exchanges of messages with a “Johnny” (Chaloub (sic)) who he admitted in evidence had given the accused the ‘Shellite’ tins or containers.
Mr Calacoci and Mr McIntyre gave evidence about their contact with the accused from the time (Mr Calacoci leased the hot houses and adjoining “green shed(s)”) and their observations of the accused and his parent’s property in 2017.
A significant witness in the Crown case was Dr Daniel Coghlan, a forensic chemist, who examined various photographs taken of the clandestine laboratory and related items, a video of the search of the rear shed and various certificates of analysis prepared by qualified people in respect of the analysis of chemicals and other items relevant to Counts 1 to 3. As a consequence of some evidence given by Dr Coghlan particularly in relation to a 1000 L plastic container that was found to have a percentage of MDMA within its waste material (Exhibit A3 – B045; the basis for the calculation of the quantity of MDMA relevant to Count 2) other experts were called relating to the analysis of the sample taken from that container and in relation to “sampling” procedures by a Crime Scene Officer directing other Crime Scene Officers who attended the “rear shed” on 30 September 2017 at the direction of the investigators. Dr Coghlan was recalled in respect of the issue of the reliability of the calculation of the quantity of MDMA found in the container directly relevant to Count 2 in the indictment. The botanist who examined the cannabis leaf also gave evidence, as with other scientists who tested samples.

The accused gave evidence in his case. There was one exhibit produced on the half of the accused; a letter to the accused from his brother George about police interest in the property (Exhibit 1). The accused commented upon a number of prosecution exhibits both in his evidence in chief and in cross-examination. I will come back to some of the detail of the evidence in the context of the submissions made by the parties upon that evidence. There were “admissions” in Exhibit K made by the accused pursuant to s.184 Evidence Act 1995 as to the integrity of the police search of the rear shed and the recording of the various ‘finds’ as a basis for Dr Coghlan’s conclusions in most instances. Apart from evidence given by the accused about matters germane to the detail of the allegations brought by the Crown, the accused gave evidence of his background. He was one of five children to his parents, with three older brothers (one of whom was called George) and a younger sister, he had effectively grown up on the property which was used by his parents for agricultural purposes, initially as an orchard growing stone fruit, and then from about 2006/2007, when the greenhouses were completed at a cost of $1.5 million, growing vegetables including tomatoes hydroponically and by use of what he described as a “hanging gutter” system.
He and his father stepped away from growing tomatoes in about 2011/2012. He had an injury to his lower back and had to stop working and was on ‘workers compensation’ for three years. He became dependent on pain killers and used cannabis recreationally. Before that however, (he being 46 years of age at the time of giving evidence) he had been involved with and had a great deal of experience of working on the property in various ways, although he also had other employment away from the farm from time to time. He said he had been involved in hydroponic agriculture for 10 years and had a great deal of experience with pesticides, fungicides and herbicides. He had been in a relationship from which a child was born in 2012, but he was separated from the mother. Separation had a great emotional effect upon him. Apart from his interest in greenhouse and other fruit and vegetable agriculture, he also had an interest in exotic birds, particularly Macaws, which he acquired for breeding purposes, commencing that interest in about 2004. At the peak of his involvement with those birds he had 25 pairs, but in 2017 he said he had between 8 and 12, individual birds or pairs. He had paid $7000 at one time for a ‘blue and gold’ Macaw and on another occasion had paid $6000 for a ‘scarlet’ Macaw. These birds lived on a diet that was quite special, with pellets based upon material that came from overseas and also which included compressed vegetables and fresh fruit. As I understood his evidence he purchased containers and measuring jugs from the business ‘People in Plastic’, a manager of which gave evidence for the prosecution of some of his purchases in early 2017, for the purpose of storing and measuring out seed that he purchased for agricultural purposes as well as bird feed. He agreed in evidence that a number of items that were used apparently inside the “rear shed” by the person who leased it in 2017, belonged to him, but had been used without his permission and had been obtained by him for purposes associated with either agricultural work on the property or for storing food for his birds. He explained that invoices issued by ‘People in Plastic’ referred to him as ’Joe Murphy’ because his surname, which is pronounced similarly to Murphy, had been misdescribed. This is an explanation which I accept bearing in mind that those same invoices have upon them the accused’s mobile phone number.

ADDRESSES

Crown Address

Putting aside formal matters, the Crown identified the essential ingredients of Counts 1 to 3, the relevant quantities required for proof of an indictable quantity for methylamphetamine (5 g), a large commercial quantity of GBL (4 kg), and a large commercial quantity of MDMA (500 g). The Crown noted the terms of s 24 of the DMT Act, permitting, in respect of counts two and three, alternative verdicts of knowingly taking part in the manufacture of an indictable quantity of prohibited drugs. The Crown handed up during his address, a chronology of relevant events which is Exhibit S, as an “aide memoire”.
With regard to the process of manufacture, the Crown submitted that the Agreed Facts (Exhibit K) in conjunction with Exhibits A3 and A4 and Dr Coghlan’s evidence, establish beyond reasonable doubt that there were processes of manufacture relevant to Counts 1 to 3 occurring in the “rear shed” in 2017.
The real issue was whether the accused “knowingly took part in manufacture” in respect of those counts. Further, as the accused admitted he was in possession of the cannabis relevant to Count 4, had he discharged the onus on him to establish that he had the cannabis in his possession for purposes other than supply.
With regard to Counts 1-3 the Crown relied upon direct and circumstantial evidence.
With regard to circumstantial evidence the main matters identified by the Crown were:

The proximity of the accused’s home to the rear shed and his opportunity to visit the “rear shed”,

At all times he had one of the keys that could gain access to the “rear shed”,

The accused was seen going into the rear shed by Mr Calococi (page 38, line 45) and saw two unidentified males outside the rear shed about three weeks before he noticed burnt grass, which he noticed between January and March 2017.

There were “burn” marks consistent with the manufacture of prohibited drugs or the disposal of waste product both behind the shed and in the western part of the property which should have been noticed by the accused.

Items found within the shed connected to the process of identification were identical to items purchased by the accused from ‘People in Plastic’ – Exhibits H1, 2, 3, 4.

A number of items used in the processes were admitted by the accused to be his (although used without his permission).

The accused denied ever going into the shed, but in Exhibit M5 communicated on two occasions that he had gone “to the shed”, allowing for the fact that there were a number of sheds on the property only one could reasonably be visited that was the “rear shed” . The accused having no connection with the greenhouse and related structures for a number of years before 2017. The Crown relied upon admissions made by the accused at page 2 and 4 of Exhibit M5 indicating connection with the “rear shed”.

The accused was in possession of 15 empty ‘Shellite’ cans which can be used as a solvent in the manufacture of prohibited drugs, a fact of which the accused was aware.

The accused was connected with the borrowing of a forklift at about the time that there was observed to be burning of grass on the western side of the property consistent with disposal of waste by the use of a forklift, arising from the evidence of Mr Calococi and messages sent by him on 14 and 19 March (Exhibit M3, page 2).

The accused was notified by his brother (Exhibit 1) of police investigations as early as April or May 2017.

The process of manufacture involved heavy equipment being brought to the shed in circumstances where it would be difficult not to notice being delivered or taken to the shed as the accused lived on the property.

The accused told a number of self-admitted “lies” to police in the course of the interview conducted on 3 January 2018, which included “lies” about the circumstances of being notified by his brother of the police investigation, not smelling chemicals when he went to the shed in response to his brother’s letter, the origin of the ‘Shellite’ drums and the person from whom he purchased them, the circumstances of meeting the person who he claimed had leased the shed from him (contradicting that account by acknowledging in evidence that the person was someone referred to him by an associate).

In this latter regard, the Crown submitted that the accused also told a number of other lies when giving evidence. That is, lying to the court about the existence of any lease and the lack of knowledge of the identity of the person who used the shed. It was submitted that many of these matters went to the credibility of the accused as a witness. It was acknowledged that the Court could completely reject the accused’s evidence upon the critical matters requiring proof by the Crown. It is also conceded that I would still need to be satisfied beyond reasonable doubt of the reliability and truthfulness of evidence relied upon by the Crown to prove his guilt even if the accused’s critical evidence was rejected.
The Crown also identified the accused as a most unsatisfactory witness who in various ways was evasive, prevaricated it with his answers, or was otherwise untruthful.
With regard to the quantity of the MDMA pleaded in relation to Count 2, the Crown said that the Court could assume that there had been a proper process undertaken by the Crime Scene Officers because of their “usual practice”. Whilst the expert forensic chemist acknowledged the variables involved (page 204 – 207) when he was recalled (particularly at page 346 – 347) he gave evidence that confirmed, notwithstanding those variables, the conclusion could still be reached beyond reasonable doubt that more than 500g of MDMA was to be found in the waste material. Otherwise it was the still open for the Court to return a “guilty” verdict in respect of the alternative count available under s24 of the Act.
As to Count 4, possession of the cannabis was admitted. The accused admitted supplying cannabis in September 2017 as recorded in the telephone intercepts (Exhibits J, J1). The accused had not discharged his onus in respect of that count because his explanations for possession were unworthy of acceptance and he was to be heard (in September 2017) arranging to sell cannabis to others in Exhibit J.

Defence Submissions

It was submitted that the accused has consistently denied knowledge of what was involved within the shed in relation to Counts 1-3 from the time he was first spoken to by police on 29 September 2017.
With regard to Count 4, the accused relied upon the evidence of Mr Indsto (p 341) concerning the quality of the cannabis leaf, the different types of cannabis and their effect, and the saleability of the cannabis leaf that was found by the police. Further, he relied upon the text message in Exhibit J1, on 9 September 2017, concerning not being able to find suitable marijuana and everyone being “out of stock” at the time that he had the cannabis in his possession. It was acknowledged that the accused was involved in small-time drug supply. But in September, bearing in mind he was in possession of the cannabis, he did not offer it for sale when he had the opportunity to do so. He had forgotten about it on his account and it was of poor quality.
With regard to Dr Coghlan’s evidence in relation to the projected weights of drugs of particularly GBL and MDMA, counsel for the accused noted his evidence in paragraph 20 of Exhibit A1 as to the possibilities that might affect the accuracy of these estimations. They included the “quality of the materials” and the “skill of the operator” of which little or nothing was known.
In relation to the prohibited drug GBL it was submitted that it was a possibility that was reasonable, in the circumstances, that empty bags of pre-cursors were not full when they arrived at the premises, thus the calculations of the chemist from the physical evidence may be unreliable.
He particularly referred to p 195 lines 25 to 38 (relevant to GBL and MDMA) and p 202 from the transcript (lines 35 – 40) and p 204 (line 45) as particularly relevant to MDMA and the accuracy of the readings. So far as the estimate of the quantity of MDMA is concerned, he also referred to the evidence of Mr Paul the analyst at p 335 (lines 30 – 45). He submitted the Court could not be “sure” that the sample taken was indicative of the mass of liquid. As to the homogeneity of the liquid waste in the IBC 1000 litre container, he drew attention to Crime Scene Officer Watton’s evidence that whilst he didn’t see what was done and cannot give direct evidence of what was done, he relied upon his colleagues to act in accordance with their training. It was submitted there are difficulties in relying upon evidence of ‘best practice’ and the Court must be careful in the absence of direct evidence. With regard to his evidence of “homogenising” the waste material it was important to note his idea of what a “good stir” was. At page 361 he said it involved stirring for “a minute or two”. Whereas Dr Coghlan had pointed out at p 348 the requirement for mechanical stirring, and also at p 348 pointed out that best practice would involve “multiple samples from different places”. This definitely was not done. There was also evidence from the accused about the time and method of homogenising chemicals in agriculture of which he had experience
Furthermore, his calculation regarding production of purity by a factor of 10 would by definition take the purity level below 0.1, which suggests little value in the waste material.
With regard to the letter received by the accused from his brother (Exhibit 1), Counsel for the accused noted that the accused’s version in the interview of speaking to his brother could be other than verbal communication, and his conduct on receiving the letter was consistent with not knowing. That is going down to the shed not seeing anything wrong and not reporting the matter to the police. If he was involved, or had knowledge of the activities in the “rear shed”, given that he was put on notice of the police investigation, one would have thought that he would have taken steps to stop the production or remove items from the shed. There is no evidence of him taking any such steps. Or taking steps to move the production ‘off site’.
The texts sent in Exhibit M5 relating to working “all night” and the like, had to be seen in the wider evidence of the absence of any fingerprints or DNA in places where they would be expected to be found if he had been working in the shed. He knew the importance of protecting his skin from chemicals from his agricultural experience, and therefore the significance of no DNA or fingerprints was enhanced. He submitted that it was implausible that the accused was working in the laboratory having regard to the physical evidence (see page 294 lines 25 – 45)
As to the Crown submission that the accused’s account was implausible as to how he met the lessee and his contact with the shed, he noted that the accused was only seen going into the shed on the one occasion. It was conceded that the men that he was seen with by Mr Calacoci could have been the men who set up the lab which was consistent with the accused telling them not to touch his property inside the shed, and could have occurred before the laboratory was set up. There was no direct evidence of what he was doing inside the shed.
Any “lies” the accused told, it is submitted that these matters were only relevant to his credibility. The Court should take into account in assessing his demeanour and the detail of what he said in Exhibit L that it was his first police interview, he had no prior criminal convictions, did not understand the implications of being interviewed, took an unsophisticated approach to the interview, the interview was not on oath, he was nervous and was having tough times in his personal life.
As to the evidence concerning “People in Plastic” and their products it was noted that the woman who gave evidence said that they had 20,000 customers and the items bought could be used for agricultural use. Further, there was no way of determining that items identical to those found in the “rear shed” were the same items. The accused had said that he didn’t know how to make drugs and the expert opinion was that people with a ‘Year 10’ education (similar to the accused’s education) would not be able to perform the chemical tasks to manufacture drugs.
It was also noted the Crime Scene Officer said the site was “inactive” and that was a possibility that it could have been “transferred” from somewhere else.
Dealing with some of the circumstances identified by the Crown. With regard to “proximity” it was noted that other people were just as proximate and that the accused was only seen inside the shed once. It was submitted that the accused was fully occupied, like Mr Calococi, “working feverishly with his birds” and too busy to go to the shed.
As for Exhibit M5 (the text messages), bottom of p 2, where the accused discussed the risk of “going to gaol”, it was submitted that the accused had explained what he was talking about in that message, about taking risks and alternatives such as going to gaol, at p 489 line 45 of the transcript where he said he was concerned about driving to Queensland, not anything to do with manufacturing drugs.
With regard to the use of the forklift it was submitted he did not know what the forklift was being used for, acknowledging though that he did organise it for use by the lessee of the shed.
It was submitted that if people were manufacturing drugs in the early hours of the morning it would be difficult for him to know what was happening if he was in bed or absent from his home.
In respect of the alleged lies told it was submitted that he was recounting from memory what he’d been told by his brother (see pages 409-14) and the smell of the chemicals, which he did not refer to in the record of interview was not significant. With regard to telephoning Recochem (Exhibit R) there is no direct evidence that he did ring that number, or that his account of how it appears on his phone is deliberately untruthful.
It was submitted that in his evidence in court he was “totally honest” about “the lies” he told police. It was submitted that just because his version does not agree with the Crown case does not make his version a “lie”. He gave plausible explanations for his untruths and the evidence is not available as “consciousness of guilt”.
As to Count 4, the accused has discharged the defence under s 29 of the Act given the fact that he had not used any of the cannabis in his possession at the time that he was selling and supplying other cannabis. Given the condition in which it was found, he had obviously “forgotten” about it. It was not suitable for sale in any event.
It was finally submitted that in respect of Counts 1-3 the Crown had not proven beyond reasonable doubt that the accused was “knowingly” involved in the manufacture of prohibited drugs

LEGAL PRINCIPLES TO BE APPLIED

The matters outlined below are primarily related to matters addressed upon. Not a great deal of attention was taken by the parties to legal issues as most legal issues appeared to be agreed amongst the parties at the end of the evidence, particularly on fundamental issues, although, of course, a number of legal issues arose during the trial. The legal principles set out below and elsewhere referred to in the judgment on discrete evidentiary matters have to be considered along with the rulings made in the course of the trial.

Onus and standard of proof of guilt

The prosecution bears the burden of proving the guilt of the accused. That burden or onus rests with the prosecution throughout the trial in respect of matters regarding proof by the prosecution. The accused bears no onus of proof in respect of these matters. The accused is presumed to be innocent until such time as the prosecution can prove his guilt.
The prosecution must prove each and all essential ingredients of a relevant charge for consideration ‘beyond reasonable doubt’. The accused bears no onus in relation to any matters requiring proof by the prosecution. If any reasonable doubt exists in relation to matters which the prosecution must prove, then I must acquit the accused. In this matter the accused gave evidence. He was under no obligation to give evidence, or prove anything. His evidence forms part of the totality of evidence upon which a determination of guilt, or otherwise, is made. If I reject his evidence in respect of particular matters relevant to proof of guilt in respect of any one of the counts I must still be satisfied beyond reasonable doubt of matters required to be proved by the Crown from the remaining evidence that I accept relevant to those matters.

Elements of the Counts in the indictment

In respect of Counts 1, 2 and 3 the prosecution must prove, in the context of the case that it has outlined that the accused,

took part in the manufacture of a prohibited drug by participating in any step, or causing any step to be taken, in the process of that manufacture, or provided the premises in which any such step in that process is taken, or suffered or permitted any such step in that process to be taken in premises of which he was the occupier or participated in its management.
On the relevant premises there was a process of manufacture of methylamphetamine (in respect of Count 1) MDMA (in respect of Count 2) and GBL (in respect of Count 3).
…

in respect of methylamphetamine manufacture concerned with Count 1, the prosecution must prove the manufacture of at least an indictable quantity, that is a quantity greater than 5g and less than 250g.

in respect of MDMA manufacture concerned with Count 2 the prosecution must prove the manufacture of a large commercial quantity , that is a quantity greater than 500g.

in respect of GBL manufacture concerned with Count 3, the Crown must prove manufacture of a large commercial quantity, that is a quantity greater than 4 kg.

As to Element 1 (above) the prosecution must prove that the accused “intentionally” did those acts in the knowledge that the “rear shed” was to be used for the manufacture of a prohibited drug (Siafakas v R [2016] NSWCCA 100 at [27]-[51]; [134]-[147]).
In respect of Count 4 the prosecution must prove that the accused,

possessed a prohibited drug, to wit cannabis leaf,

not less than the traffickable quantity of that prohibited drug (traffickable quantity of cannabis leaf being 300g).

It is a defence to this charge if the accused proves on the balance of probabilities that he had the prohibited drug in his possession otherwise than for supply. Here the accused admits possession of the relevant cannabis leaf. He admits knowledge of its presence on the property and intentionally exercised control and custody of it upon the property.

Trial by judge alone

The trial is a trial by judge alone in accordance with the provisions of the Criminal Procedure Act (see s 132, 133 Criminal Procedure Act 1986). The election was made by the accused, consented to by the prosecution, on or before 21 September 2010. A trial by judge alone in accordance with the relevant provisions of s 132, 133 Criminal Procedure Act1986 requires the trial judge not just to state bare principles of law that are applied and findings of fact that are made, but also to expose the “reasoning process” justifying the findings of fact and ultimately the verdict.
All principles of law which are relevant and required to be applied and considered should be identified in the judgment, including any necessary warnings that the trial judge is required to apply in the assessment of the evidence. Where particular warnings are applied a judge must state why, if appropriate and applicable and notwithstanding the appropriate warnings or the consequences of it, a particular verdict has been reached (Fleming v The Queen (1998) 197 CLR 250 (at 261-264)).

Lies as evidence of consciousness of guilt

The Crown submits that the accused told “lies” to investigating police during the course of their investigation, particularly in the electronic interview on 3 January 2018 and also told lies when giving evidence in the trial. A number of ‘lies’ in the electronic interview were admitted by the accused to be such in his evidence. These included, in no particular order of importance, claims in his interview, firstly, that on an occasion that he went down to the “rear shed’ having been told there was a police investigation occurring he did not smell any chemicals, secondly, that he did not know the reason that the person who leased the “rear shed” approached him and thirdly, that he did not know the identity of the person who gave him the ‘Shellite’ containers. In evidence he admitted these versions were untrue. The Crown also submitted that the accused did not tell the truth in his interview with police and in evidence when he said he did not know the name of the person who leased the “rear shed” from him. In respect of these lies either admitted by the accused or demonstrated to be untrue by other evidence, the Crown submits that I should regard all those lies as evidence of consciousness of guilt on the part of the accused. Other untruths were submitted to be relevant to the assessment of his credibility.
In relation to this submission, I note that a lie is something that is said by a person that is untrue, knowing at the time of making the statement that it is untrue. However an untruth may be told without realisation of that fact that the time is not a lie. People can be mistaken or confused in recounting relevant events and if it a later time a witness realises that what he or she said was incorrect it does not transform the statement earlier made into a lie. Consideration of lies requires a careful approach in deciding their significance in any court case. However, a lie can be taken into account as evidence of the accused’s guilt but cannot prove his guilt by itself. Proven lies in this context can be considered with other facts and circumstances in determining whether the prosecution has proved its case beyond reasonable doubt.
In order to rely upon lies as evidence of consciousness of guilt the Court must find, firstly, that the relevant lie relates to an issue that is relevant to the offence alleged against the accused as having been committed by him. It must relate to a significant circumstance or event connected to the alleged offences. The Crown submits that these lies are relevant because they go to the issue of the accused seeking to distance himself from the people involved in the manufacture of prohibited drugs, and/or distance himself from the knowledge of the fact that there were processes of manufacture occurring within the “rear shed”. The Crown submits that lies of their character are relevant to proof of guilt in respect of Counts 1 to 3 in the indictment.
Secondly, I must find the reason the accused told a relevant lie was because he feared that telling the truth might reveal his guilt in relation to the charge or charges he now faces. That is, he feared that telling the truth would implicate him in the commission of the offences for which he is now on trial.
I am to remember that people do not always act rationally and that telling a lie may sometimes be explained in other ways. A person may have a reason for lying apart from trying to conceal his guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence unrelated to the offence. If I think that a relevant lie may have been told for some other reason other than to avoid being implicated in the commission of the offences for which the accused is now on trial, evidence of lies cannot be used as evidence of his guilt. In those circumstances it may be put aside in that regard and I should focus my attention upon the other evidence in the case. In this matter where untruths were admitted by the accused it is submitted on behalf of the accused having regard to his evidence that there were a number of reasons for him not telling the truth to the police, including events occurring on the accused’s personal life, fear of being wrongly implicated in matters with which he had no connection, possible “repercussions”, amongst other matters.
This Crown also submits that if these lies identified by it as evidence of “consciousness of guilt” are not available for that purpose, they are still relevant to the assessment of the accused’s credibility as are other alleged untruths told by the accused either in his electronic interview or his evidence. If the court is satisfied that a lie has been told, that is I am satisfied that the accused said something that was untrue and at the time of making the relevant statement he knew it was untrue, I cannot use that fact in support of the conclusion that the accused is guilty. But the relevant lie can be taken into account in the assessment of the accused’s credibility, both in relation to the versions that he gave the police when interviewed in January 2018 and/or in considering his evidence in the trial. If I was satisfied that the accused told a lie or lies then that all those matters can be considered as having a bearing upon whether I believe other things that the accused has said in his electronic interview and/or his evidence at trial.

Separate consideration of counts

Each count requires separate consideration by regard to the evidence relevant to that particular count. A finding of guilt in relation to one count does not necessarily mean that findings of guilt will follow in relation to other counts. In this matter the evidence and issues in relation to Count 4 are completely separate and apart from the relevant evidence in relation to Counts 1 to 3. These latter counts have much common evidence although matters such as identifying the precise process of manufacture occurring in the “rear shed” in relation to one particular prohibited drug can only be relevant in relation to the count concerned with that particular drug. Likewise specific evidence relating to quantities of particular prohibited drugs alleged to have been manufactured can only be relevant to the particular count concerned with that particular prohibited drug.
The Crown does not have to prove that the accused knew a particular prohibited drug was being manufactured in the “rear shed” (Siafakas v R [2016] NSWCCA 100 at [27]-[28] and [51]). But it must prove beyond reasonable doubt that the accused was “knowingly take part in” the manufacture of a prohibited drug as defined in s 6 Drug Misuse and Trafficking Act 1985. Thus, the evidence in the trial concerned with the accused’s knowledge and/or intentions in respect of activities in the “rear shed”, including evidence concerning his connection with either precursors for manufacture of prohibited drugs and/or implements or objects used in the manufacture of prohibited drugs, is common to all three counts as is evidence of acts done by the accused to permit use of the “rear shed” by others and evidence of actions of the accused relating to the enforcement, supervision or execution of any agreement with persons having access to and making use of the interior of the “rear shed”.

Circumstantial evidence

The Crown case in relation to Counts 1-3 is based upon direct and circumstantial evidence.
The defence also relies upon other circumstantial evidence as well as the direct evidence of the accused in his denials and as to relevant events and circumstances relied upon by the prosecution
My function as the judge of the facts in this case extends beyond coming to a conclusion as to whether you find that any particular fact has been established by the evidence. My function also extends to drawing reasonable inferences or conclusions from the facts I find established. “Inference” and “conclusion” mean the same thing.
In this case, the Crown relies partly upon “circumstantial evidence” to implicate the accused in respect of Counts 1-3 as being “knowingly take part in” the manufacture of prohibited drugs. In relying upon circumstantial evidence, the Crown asks me to find certain basic facts and then from those facts to draw a conclusion as to the existence of further facts on this issue. This is also the case in relation to establishing that a process of manufacturing prohibited drugs relevant to Counts 1, 2 and 3 were occurring in the “rear shed”.
Circumstances relied upon by the Crown in relation to “knowingly take part in manufacture” (re Counts 1-3).

In summary from the main matters from the evidence and submissions:

The expert evidence of Dr Coghlan in conjunction with the physical evidence (including results of prohibited drug analysis and/or analysis of precursors to particular types of prohibited drug manufacture) and the agreed facts (Exhibit K) demonstrate that three separate processes of manufacture of prohibited drugs occurred within the “rear shed” before the police search.
The accused had control of and access to the “rear shed” during the period of time that the processes of manufacture occurred.
The accused “leased” the “rear shed” to a person or persons who could have been the only people to have set up and conducted the processes of manufacture, apart from an immediate member of the accused’s family. However, the only person regularly residing on the premises, the accused’s mother, was not such a person (Exhibit N – tendered without objection), the accused’s father was in a nursing home and the accused’s brothers were not residing on the premises.
The accused met and knew the name of the person who leased the “rear shed”. He had possession of documents of identification, a driver’s licence and a Medicare card on his own admission.
The accused’s residence was approximate to the “rear shed” (no more than 50m away) and he had ample opportunity over many months after the shed was leased (most likely in mid-January 2017 but before April 2017) to visit and inspect the shed.
The accused’s bird cages which he regularly visited were even closer, no more than 30m from the “rear shed”.
When the “rear shed” was leased the accused had property within it of value which he had taken the trouble to photograph in mid-January and which was not to be used by the lessee.
The accused was seen by the neighbour to go into the shed at the time that the neighbour identified two males outside the “rear shed” about three weeks before he noticed burnt grass behind the “rear shed” between January and March 2017.
There were burn marks in grass behind the “rear shed” and in the western area of the property that ought to have been noticed by the accused that are consistent with either the disposal of waste products from the manufacture of prohibited drugs (MDMA found in soil samples from behind the “rear shed”).
The accused’s neighbour saw waste products coming out of a hose connected to the “rear shed” into the area where the burnt grass was seen.
The accused denied to police ever going into the “rear shed” after he leased it, but this claim was contradicted by communications to others in text messages (Exhibit M5) and by the observations of neighbours.
At the time of the police search of his family premises he was in possession of 15 ‘Shellite’ containers, that chemical being a solvent connected to the manufacture of a prohibited drug. The accused knew it was “solvent”.
The accused was involved in arranging the borrowing of a forklift used by neighbour about the time that burnt grass stains were seen on the western side of the property consistent with the disposal of caustic waste from a large container by the use of a forklift.
The accused was notified by his brother of police investigations as early as April or May 2017, but admitted not going inside the shed to investigate but smelling chemicals obviously not connected with agricultural use.
The processes of manufacture included the use of heavy equipment that would be difficult to take onto the property without the knowledge of the accused.
The accused told police in the course of the interview conducted on 3 January 2018 a number of lies which he admitted were lies. These lies are available as evidence of consciousness of guilt and were as follows:

No smelling chemicals when he went to the “rear shed” to investigate in response to his brother’s letter (Exhibit 1)

Not knowing the identity of the person who gave him the ‘Shellite’ canisters

The circumstances of first contact with the person who leased the “rear shed”.

More centrally, the accused both to police when spoken to on 29 September 2017, when interviewed by police on 3 January 2018 and in his evidence in the trial denied knowledge of the name of the person to whom he leased the “rear shed” and failed over many months of reflection to remember that name. This failure to remember the identity of that person, or to supply anything other than general information is incapable of acceptance as truthful, and must therefore be a lie reflecting consciousness of guilt on his part. This failure of memory as he describes it is central to his denial of guilt.
Further, in a related way, he in evidence gave excuses for not doing things because of fear of ‘repercussions’ which might only reasonably arise from disclosure of information which he knew would implicate persons concerned directly with the processes of manufacture.
Particular items found in the “rear shed” that were associated with processes of manufacture of prohibited drugs were identical to or very similar to particular items purchased by the accused on 14 February and 2 March 2017 from “People in Plastic”.

There is a separate ‘circumstantial evidence’ aspect of the matter. In order to prove the accused’s guilt in relation to Count 3 as to the existence of a “large commercial quantity” of GBL, the Crown relies upon the conclusion reached by Dr Coghlan by way of deduction having regard to the existence of unaccounted for quantities particular precursors, or packages for relevant precursors, for the manufacture of the prohibited drug GBL. Those matters are outlined in specific detail in the statement of Dr Coghlan in Exhibit A2. I will deal with the respective cases in relation to this aspect later.

Circumstances relied on by the accused in respect of “knowingly take part in manufacture”

In summary from the submissions of the accused in relation to knowledge of the processes of manufacture they include:

The accused has consistently denied knowledge of the existence of any processes of manufacture of prohibited drugs or agreeing to that manufacturing occurring in the “rear shed”.

The accused conduct after receipt of his brother’s letter was consistent with him not knowing or recently suspecting a process of manufacture of prohibited drugs. He had nothing to lose by reporting the matter to the police if he did not know, and if he did have knowledge of the processes of manufacture he did nothing either to stop production or to remove items from the shed in the knowledge that the police had an interest in the property.

In all the items that were examined particularly gloves found at the premises consistent with involvement in the processes of manufacture there was no DNA profile of the accused found on any item nor any fingerprints of the accused found on relevant items.

Being seen to go into the shed on only one occasion by the neighbour given the very approximate timing of that observation did not establish an occasion when any drug laboratory was set up. Given that there were other people present it was consistent with the accused showing people the property belonging to him that was not to be touched.

The purchase of items from “People in Plastic” by the accused, similar to or identical to those found inside the “rear shed” and used in processes of manufacture of prohibited drugs, was not necessarily consistent with knowledge of the processes of drug manufacture. The items found by police, if they are the same purchased by the accused, may have been used without his permission, could be purchased for innocent purposes such as matters related to storage for agricultural purposes or for storage and transfer of bird food from one place to another. In any event, the item purchased on 2 March 2017 was not delivered.

The site when inspected was “inactive” and the Crime Scene Officer agreed that there was a possibility that the laboratory set up could have been transferred from another site.

Any reference by the accused in communications concerning going into a shed could not necessarily refer to the “rear shed” as there were a number of sheds on the property to which the accused had access.

An alleged admission by the accused about taking risks and not wanting to go “to gaol” (Exhibit M5, p2) was explained by the accused as referring to refusing to drive up to Queensland at the request of a friend.

Where circumstantial evidence, such as here, is considered with direct evidence, no individual fact established can prove the guilt of the accused.
Where the Crown’s case depends on circumstantial evidence, then the Court is asked to reason in a staged approach. The Crown first asks the Court to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the accused. The Court is then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks the Court to find based upon the basic facts established from the circumstantial evidence and the direct evidence is that an accused person is guilty of any particular offence charged.
A case based in part on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation). It will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important that I approach a circumstantial case by considering and weighing, as a whole, all the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused’s guilt.
The correct approach is first to determine what facts I find established by the evidence. Any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt except here in two respects.
If such a conclusion does not reasonably arise in relation to a particular count in the indictment, then the Crown’s circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt. Of course, it follows that I must find the accused “not guilty” of the relevant count to that evidence.
But if I find that such a conclusion is a reasonable one to draw, based upon a combination of those established facts then, before I can find the accused guilty I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused the circumstantial case fails, because I am not satisfied beyond reasonable doubt of the accused’s guilt.
I understand that drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition.
In order to satisfy the Court beyond reasonable doubt of the accused’s guilt of a particular offence where circumstantial evidence is relied upon, the Crown must first persuade me that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find established by the evidence. It then must prove to me that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole is that the accused is guilty of the particular offence I am considering. In other words, the ultimate inferences to be drawn to prove particular elements of a particular charge are to be proved beyond reasonable doubt. If a reasonable possibility exists inconsistent with guilt in relation to a matter requiring proof by the prosecution then the prosecution has failed to prove that matter beyond reasonable doubt. In other words, if there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks me to find, then the Crown’s case has failed in respect of the particular count I am considering.

Expert evidence

In this case witnesses has given opinion evidence upon matters relating to the character of the items seized from the “rear shed” and their relationship to matters requiring proof by the Crown, such as whether there were processes of manufacture to be found, whether there were prohibited drugs present, their quantity, quality and purity amongst other matters.
The opinions expressed constitute “expert opinion” and findings. An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express their opinions.
Of course, the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion including the reliability of any history given by the complainant. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’ specialised knowledge.
I should bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the expert I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates, but not displace uncontroverted opinions or opinions accepted as correct by the parties.
I should remember that the expert evidence relates only to part of the case, and that while it may be of assistance to me in reaching a verdict, I must reach my verdict having considered all the evidence. The opinion of the experts is not determinative of the guilt of the accused. It is part of the evidence relied upon to prove the guilt of the accused.
If an opinion is based upon facts which I am satisfied have been proved, or assumptions that I am satisfied are valid, then it is a matter for me to consider whether the opinion that is based upon those facts or assumptions is correct. On the other hand, if I decide that the facts have not been proved, or the assumptions are not valid, then any opinion based upon them is of no assistance because it has no foundation. If that is the case, the opinion should be disregarded.

Prior inconsistent statements

Prior inconsistent statements are statements made by a witness about relevant events before giving evidence that inconsistent with the evidence of the witness in the trial.
If there is an inconsistency between a previous statement and evidence in this Court, or an inconsistency between the accounts of different witnesses who observed the same event, that may be taken into account in either assessing the credibility of the particular witness in relation to that particular matter or in assessing the credibility of the witness generally. In considering such inconsistencies I may, if I am satisfied that there are inconsistencies, regard those matters as reflecting adversely upon the truthfulness of a particular witness. The significance of these matters in relation to a particular witness will depend upon the significance of the inconsistency, the number of inconsistencies and of course the significance of the witness in the case.
A ‘recent invention’ is a suggestion that something said in evidence has been made up, is false or unreliable because it was not mentioned or detailed beforehand when the witness had an opportunity to give a full account of relevant events. Whether such a matter is a ‘recent invention’ or not is a matter for the court to decide. Whether it reflects adversely upon the credibility and/or truthfulness of the witness again is a matter for the court.

Admissions

An admission is a representation made orally or in writing by a defendant in a criminal proceeding asserting facts, or a fact, relevant to the facts in issue in relation to the matter or matters with which he or she is charged.
An admission is a representation adverse to the interests of a defendant. But it may be inculpatory or exculpatory. An admission may not be a confession. It may inculpate a person on a minor or peripheral matter which is not of any significance or is not disputed, but if proven not is not necessarily consistent with guilt.
It may be an admission to the fact that does not of itself prove guilt, or of a matter that is entirely neutral in the case. It may be made either before, during or after the commission of a particular offence. Most admissions are made after relevant events giving rise to a particular event. An admission may be express or implied. But an “implied” admission will by its nature be equivocal in its meaning. It may have other meanings inconsistent with a meaning that constitutes an admission adverse to the interests of the person making the relevant admission.

Evidence of good character

The accused has adduced evidence to establish that he has no prior convictions, or charges, known to the police at the time of the search in late September 2017. There is other evidence available as to his background and upbringing. This evidence is not challenged by the prosecution and thus I should accept the fact that the accused is a person of good character in that he has no convictions previously. I am prepared to accept that he has worked industriously on his parent’s property and cared greatly for his parents.
I am entitled to take evidence into account of an accused’s good character in this respect, in favour of him on the question of whether the prosecution has proven the accused’s guilt beyond reasonable doubt. The fact that the accused is found to be a person of good character in a material respect is relevant to the likelihood of his having committed the offences alleged.
I can take into account the accused’s good character by reasoning that such a person is unlikely to have committed the offences charged by the prosecution. Whether I reason in that way is a matter for me.
Further, I can use the fact that an accused is a person of good character in this respect to support his credibility in his denial of guilt. I may reason that a person of good character is less likely to lie or give a false account of his conduct in any interview he gave to the police. Whether I reason in that way is a matter for me to determine.
None of this means that good character provides the accused with some kind of defence. Evidence of good character is only one of a number of factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of the accused. What weight I give to the fact that the accused is a person of good character in a material respect is completely a matter for me. But I should take that fact into account in the ways I have indicated.

Consideration

Re Counts 1-3 – Processes of manufacture of particular prohibited drugs

A starting point is the expert evidence that was given by Daniel Coghlan, a Forensic Chemist in the employ of the Department of Health, in relation to the issues of what if any processes of manufacture of prohibited drugs were conducted at the premises, particularly the “rear shed”, what prohibited drugs were manufactured, what those processes involved, what quantities of particular prohibited drugs were manufactured and the bases of those calculations.
This witness was a thoughtful considered witness, whose qualifications to reach the conclusions he did in his two expert reports prepared pursuant to s.177 Evidence Act 1995 (Exhibits A1, A2) and in his evidence were not in doubt. Ultimately, having regard to the cross-examination of the witness, he was unshaken in respect of his respective opinions, but fairly made allowance for matters that were raised with him that he had not previously been expected to consider. His evidence on recall was of some assistance to the accused in respect of whether the prosecution has proven a relevantly “large commercial quantity” of MDMA was manufactured. The overall circumstances establish beyond reasonable doubt that there are, at various times before 29 September 2017, processes of manufacture in the “rear shed” consistent with what is alleged in Counts 1-3.
His oral evidence and his reports included consideration of photographic evidence of items seized in the course of the police investigations on 29 and 30 September 2017 (see Exhibits A3, A4), particularly the police examination of the “rear shed” and its environs, the search video (which was not tendered) and Analyst Certificates (Exhibits O, O1) regarding items seized, examined or sampled. It is clear from the detail of the police evidence of their respective examinations and searches, the records kept of items seized and inspected and the photographic evidence produced, for example in Exhibits A3 and A4, that the integrity of the search and examination of the “crime scene” was not compromised in any way. Those photographic exhibits reflect the accuracy of the description of them contained within the forensic chemist’s reports. In fact in one particular instance handwritten markings on an item are misdescribed in the photographic exhibit but accurately described by the forensic chemist in his report.
There is no need to repeat chapter and verse the detail of his observations, examinations and findings having regard to the detail of his evidence and the relationship of his evidence to the physical evidence. Of course all this is to be considered in the context of what is clearly his extensive expertise having regard to his educational qualifications, his training and his specific experience. His key findings relevant to identifying processes of manufacture, the precursors required and found, were not seriously challenged.
One matter that emerged from the evidence of the Crime Scene Officer was a concession in cross-examination that it was “possible” that what he examined of the “laboratory” in the “rear shed” which he described as “inactive”, had been “transferred” from elsewhere. As I understand the matter as it was submitted to me, I could act upon this “possibility” to conclude that there had been no process of manufacture occurring within the “rear shed”. Or, to put it more accurately, I could not be satisfied beyond reasonable doubt of such a matter given that possibility.
This was a matter that was not raised with the person best qualified to express an opinion about the matter. It is quite clear from Dr Coghlan’s evidence, which I accept to be accurate and fair in all respects (subject to analysis of some of his conclusions as to weights of drugs manufactured), that the evidence available to him from the sampling, the video and the photographic record, represented a place where processes of manufacture had occurred. To the extent that there is some conflict between him and the Crime Scene Officer, I accept his evidence. The qualifications of the Crime Scene Officer to express an opinion about whether a particular laboratory had been transferred are not abundantly clear to me. In any event if there was a possibility that a “laboratory” concerned, it should be noted, with three different processes of drug manufacture, had been “transferred” from elsewhere, that did not mean necessarily that when transferred the processes of manufacture did not continue at the new location. In any event, if the submission is that no process of manufacture actually occurred within the “rear shed”, there is ample evidence beyond the mere presence of the prohibited drugs and the means of manufacturing them of the processes of manufacture in all respects relating to Counts 1 to 3 occurring within the “rear shed”. Including the use of items that belonged to the accused (he admitted a number were apparently used though without his consent) in the processes. Those items had been in the shed before it was leased to a third person.
There is also the evidence of used containers of pre-cursors within the shed. If someone had taken the trouble of moving processes of manufacture to the shed for storage one would scarcely expect to find empty or part empty containers of chemicals required for the manufacture of the various drugs. There was also present in the shed discarded rubber gloves and latex gloves consistent entirely with use of those items within the shed in the handling of chemicals for the purposes of manufacture. Further, there is the evidence of the completed product of manufacture such as the presence of the methylamphetamine relevant to establish an indictable quantity, the various remnants of MDMA and GBL on various items particularly items directly associated with manufacture. As well there is evidence of the presence of all relevant pre-cursors for manufacture and reaction vessels and other implements necessary for manufacture within the shed. One can never say that much of what was found within the shed had not been “transferred” from another place of manufacture. But that does not mean that this location, that is within the “rear shed”, was not itself a place of manufacture. It was an ideal location. Secluded, on a large private property away from public gaze. The shed‘s contents may have represented an “inactive” manufacturing location, or a location for manufacture of prohibited drugs that had ceased to function as such, but the evidence is overwhelming that the process of manufacture of particular prohibited drugs as identified in the indictment had occurred within the shed. It is to be borne in mind that the processes identified within the shed may have existed there for up to 8 to 9 months before the police investigations in late September.
The evidence of Dr Coghlan was that the processes for manufacture of each of the prohibited drugs could only take hours, or up to a week to manufacture the MDMA. There was ample time for a number of processes to have occurred in respect of each of the prohibited drugs manufactured and for there to have even been a break of weeks or months between the last process and the police search.
I am unable to conclude how many processes of manufacture occurred in relation to a specific drug other than the fact there has been proven beyond reasonable doubt there was at least one process completed in relation to each of the three separate processes producing three separate prohibited drugs is particularised in Counts 1, 2 and 3.

Re: Count 1

With regard to Count 1 in the indictment, on the basis of Dr Coghlan’s examinations, conclusions and related opinions, I am satisfied beyond reasonable doubt that within the shed before the police search there had been undertaken a process of manufacture of methylamphetamine from ephedrine. This process involves the reaction of ephedrine with hypophosphorus acid and iodine.
By reference to the photographic evidence identified in his statement and in Exhibit A3 there was found from various items identified, and recovered from the “rear shed”, the various chemical components required for the production of methylamphetamine, both within containers for the holding and/or handling of relevant chemicals and in containers or items directly concerned with the process of manufacture. There were also found various items that had attached to them or contained within them the prohibited drug methylamphetamine in distribution consistent with their presence being associated with a process of manufacture of that particular drug. This evidence was unchallenged in any event. A reflection of the fairness of the expert’s assessment is that in his first report he left open a conclusion that there had been a manufacture of methylamphetamine from ephedrine consistent with quantity greater than an indictable quantity. The count I am considering alleges not less than an indictable quantity. The second expert report specifically addresses the precise quantities that can be calculated from the methylamphetamine and admixture located at the site, particularly in a plastic bag, a plastic jug, a plastic bottle, a plastic “cube” (like a container for water or petrol) and a plastic drum. By regard to the specific exhibits (that is the specific items photographed by investigating police and identified by the expert) the forensic chemist calculates the total amount of methylamphetamine present in the shed as 26.4g. That is based upon a calculation of the pure quantities of methylamphetamine after scientific measurement of the percentage of methylamphetamine within a particular substance or item including admixture. That finding is also unchallenged.

There is also the central issue of the initial claim of the accused that only one person approached him for the purposes of leasing the “rear shed”. Frequently he referred to the “people” using the “rear shed” both in his interview with the police (Exhibit L) and in his evidence. In that regard the accused’s initial position was effectively that from the time the shed was leased he did not see or have any contact with the lessee or lessees. Mr Calacoci saw 2 strangers standing outside the shed during daylight hours in April/May 2017. They appeared “Mediterranean” in appearance. He also, as earlier pointed out, claimed initially that he was only paid one month’s rent (although that changed to “possibly” another month’s rent during his evidence). Although the accused’s evidence about the commencement of the lease is extremely rubbery it is open to conclude based upon photographs taken by the accused (dated by metadata from the accused’s phone) and some concessions by the accused in his evidence that the lease of the “rear shed” commenced as early as January 2017 .
The accused’s account is that he was both ignorant of, and disinterested in, what the lessee was doing with the “rear shed”. In this regard Mr Calacoci gave some important evidence. He had an agreement related to his leasehold of the rear hothouses that he had access to a forklift which apparently was owned by the accused’s family. There is evidence that the forklift in effect went missing at some point in 2017, while the “rear shed” was “leased”, and that Mr Calacoci had to chase it up and almost demand its return on the basis that the accused’s borrowing of the forklift was so unreasonable that he, Mr Calacoci, was not prepared to allow the accused to “borrow” the forklift again. This occurred as I understand the oral evidence in April/May 2017. In fact there is objective evidence of demands made for the return of the forklift from the accused by that lessee in May 2017. The accused in his interview with the police on 3 January 2018 admitted agreeing to a request by the unnamed lessee of the “rear shed” to borrow the forklift from a note that was left in the accused’s letterbox. The accused claimed that he left a note on the door of the “rear shed” requesting from the lessee, the return of the forklift to Mr Calacoci, consistent with the evidence of that man that he was frustrated with the failure to return the forklift.
It seems very strange that bearing in mind the accused lived in a house barely 50 m or so from the “rear shed”, making allowance for his claim that he spent a lot of time away from home staying in other people’s houses such as his girlfriend’s and the like, that the accused did not seek out the lessee of the rear shed personally to arrange the return of the forklift. Then, of course, there is the issue of what purpose was served by the lessee of the “rear shed” borrowing a forklift given what the accused claimed to police and this Court were the different explanations given to him by the lessee for the use of the “rear shed”. That is, “consumables” or “crockery” or the like. This reflects in part the lack of credibility in the accused’s evidence on the critical issues. There is evidence from the accused’s drug dealing in cannabis (Exhibits J, J1) that he was not immune from staying up all hours of the night. If the “rear shed” was being used only at night, then he had the capacity to be aware of this either by reason of his nocturnal activities and/or his proximity to the shed.
There is the issue of the damage done on the western side of the property by unidentified chemicals, but consistent with waste chemicals from the processes of drug manufacture going on in the “rear shed”. The suggestion was put to the accused that in fact that damage done to the grassed area to the west of the “rear shed”, which in the aerial photographs is very noticeable and quite extensive, had been occasioned by the use of the forklift to dump waste material out of a large container such as the IBC containers that can be seen in a photograph taken by the accused in January 2017 in the “rear shed”. They are identical to the “IBC” container in which was found the waste holding the quantity of MDMA relevant to Count 2. I asked the accused had he noticed that damage. He said whilst it was very noticeable with the aerial photographs, on the ground he did not notice it, notwithstanding at various times he had crops of ‘taro’ growing adjacent to the area. Mr Calacoci who had no direct interest in that area noticed it. I accept that the accused by reason of his family relationships and growing up on the property was a person well familiar with the processes of agriculture for which the property was used. The lessee of the hothouses told the Court that when he took over them the accused was very helpful in setting up the system of cultivation of cucumbers above the ground in a range of ways. In the context of his father being in a nursing home, his brothers living away from the farm, one would have thought, given the accused’s familiarity with the use of the property, that he would be very astute to identify any damage to areas of the property that were cultivatable as no doubt that area was. In my view, as he did in so many instances, the accused sought on this matter to downplay or even deny knowledge of events occurring on the property that were associated with the manufacture of prohibited drugs, both within the shed and outside the shed.
There was as well, the evidence of damage to the grassed area on the northern side of the “rear shed” about which the accused was not perturbed, but clearly had been caused at the relevant time by the escape of contaminated liquid from inside the “rear shed” with no known explanation at the time. Mr Calacoci saw liquid coming from a hose that came out of the shed consistent with damaging the relevant area. Soil in that area was tested and was found to have MDMA in it.
Whenever an issue arose as to matters that might be expected to be within the knowledge of the accused about the activities in the “rear shed” or around the “rear shed” by the so-called “lessee” who, on one version, just appeared “out of the blue” and approached the accused while he was “mowing the lawn”, the accused in his evidence and of course in his less inculpatory interview with the police, either sought to distance himself, feign ignorance or, as he clearly did when confronted with his admission of smelling chemicals in the “rear shed” having been put on notice of a police investigation into activities within the “rear shed”, effectively “washed his hands of it”. Indicating that he did not want to find out what was happening for fear of being implicated in “something”. This last fall-back position in explaining his conduct, as he articulated in his evidence, reflected the fact that he did know what was going on inside the shed and not being able to do anything about removing the evidence, wanted to pretend that there was nothing there or that he should not involve himself. Obviously the accused did not have an understanding of the wide definition of “taking part in the manufacture of prohibited drugs” provided for in s.6 Drug Misuse and Trafficking Act, 1985. The issue of the relevance of “wilful blindness” to proof of guilt was not raised by either party so has not been considered.
In relation to the issue of untruths or lies told by the accused both out of Court and in Court there were quite a number, many of them significant in the context of the Crown case against the accused in respect of the issue of him “knowingly taking part” in the various processes of manufacture. As I point out at the end of this judgment not everything said by the accused was untruthful and there are a number of things said by him relevant to each of the charges that I accept. In part, in relation to counts 1 to 3, because he made a number of representations out of Court and in his evidence that were relevantly ‘admissions’ in respect of facts in issue in the case, although not necessarily wholly inculpatory.
Of the various matters identified by the Crown the three particular lies told by the accused in his record of interview I earlier identified could well qualify each in themselves as evidence of consciousness of guilt in the manner in which I have directed myself. But, I act upon them as being relevant only to the assessment of the credibility of the accused’s account specifically in relation to relevant knowledge and awareness of matters concerning Counts 1 to 3.
There were some particular matters referred to in the Crown’s address arising out of the evidence that I could not conclude were relevant lies. Whilst I do not accept the accused’s evidence that he was in some way intimidated by “Johnny” I cannot conclude that he is untruthful when he denies that he rang Recochem, a chemical company capable of providing chemicals that could be precursors in the manufacture of particular prohibited drugs, or of a particular prohibited drug, despite the fact that there is evidence of a voice call being made to that business on the accused’s phone in early May 2017. The accused’s explanation as to the circumstances of the call is unlikely, given evidence that contradicts his claims as to the nature of his relationship with “Johnny”, which I refer to elsewhere. But, in the circumstances, even rejecting his explanation, it may be that his phone was used by another person, even “Johnny”, with his permission in circumstances where the accused was not aware of the character of the call.
As to out of Court and “in” Court lies on the same topic, the claim of the accused that he did not know the name of the person to whom he leased the shed, even the first name, is a claim that must be untrue for reasons I have set out above in part. The untruthfulness of that claim made on a number of occasions is further shown by the change in the accused’s account of how it was that he came to first deal with the person who leased the shed. The vague references to a “person” or “people” in the same context, although not critical, to my mind confirms knowledge about the person or persons renting the shed more than the accused is prepared to disclose. In relation to this particular lie, that he does not know the name of the person who leased the shed (accompanied by a very vague and general description of that person inconsistent with having met the person, discussed the terms of the arrangement, and then entering into or settling an agreement with that person supported by documentations of identification), I conclude it is a deliberate lie (told repeatedly). It is relevant to the offences the Crown alleges the accused committed in relation to Counts 1 to 3 in respect of a significant circumstance connected with the alleged offences. It is a “lie” told because the accused feared that telling the truth might reveal his guilt in respect of the charges, it was told because he feared the truth of his knowledge of the identity of the person would implicate him in the commission of the offence for which he is now on trial. This is primarily so, apart from its real significance in the scheme of things, because the accused’s position throughout has effectively been (to paraphrase his account): “I rented the shed to a person I didn’t know and what he did after that I was disinterested in because he was a person with whom I had no connection and had no reason to be aware or familiar with his personal affairs”. In other words, not knowing who the person was and having no connection with him was a justification for not making any enquiry about what he was doing in the shed because what he did was of no interest to the accused. Furthermore, not knowing who “he” was prevented the accused providing information that might lead the authorities to that person. If it was true it prevented the accused chasing up substantial rent owing, which is unlikely given his financial position.
I have considered the issue of whether the lie was told to prevent an unintended consequence or out of fear of retribution or repercussions. But I conclude that the accused’s determination to maintain this lie, in the face of a strong Crown case and with no valid reason not to know a name, is a determined attempt to avoid implication, rather than avoid retribution.
One of the interesting features of the position of the accused about this matter is the fact, as he demonstrated emotionally in evidence when he discussed his father’s health, that as the only son living on the property, I am assuming living with his parents most of his life (he certainly had never been in gaol before with no prior convictions), he claimed to be disinterested as to what was going on in the “rear shed” clearly at the risk of peril to his mother’s welfare and the safety of the property. Drug laboratories are inherently unsafe. Explosions, fires, chemical spills (as occurred here) are commonplace. Having regard to the DNA evidence, the character of the equipment that must have been introduced to the “rear shed” (that is, not already there when the agreement was entered) and the character of the processes of manufacture would have required the work of at least more than one person from time to time.
The movements of these people, or this person, even at night could not have occurred without notice. The accused said he did not see any people coming and going, but Mr Calacoci saw two men who were strangers to him in the vicinity of the “rear shed” consistent with their connection to an ongoing or impending process of manufacture. They were there it would seem at the time that the accused was seen to enter the shed. Yet, the accused possessed no information or memory to explain their presence. The accused’s account is, in effect, that he was oblivious to the activities within the “rear shed” and thus the comings and goings from the shed and activities related to the processes of manufacture such as the disposal of waste chemicals, or waste materials containing a prohibited drug, as occurred in the area to the west of the “rear shed” and at the rear of the “rear shed”. This oblivious attitude of the accused sits at odds with the financial arrangement he made, on his version, the absence of proper payment to fulfil the agreement and the personal interest the accused must have had for the welfare of his family and his family’s property. Also, his family had a commercial arrangement with Mr Calacoci which might have been imperilled by tell-tale signs such as what he claimed to be the smell of unusual “chemicals” coming from the shed, when he claimed he made the one visit to it to enquire as to what was going on. That account is frankly an unlikely account, because nothing he did afterwards is consistent with what he said he observed. His claim of not observing the damage to the land to the western side of the shed given photographic evidence of damage to that area well before the police executed the search warrant, in my view, is untruthful given the interest the accused must have had in the property. That is an issue only relevant to credibility of the accused’s evidence.
With regard to his lack of interest in the goings-on around the “rear shed” I note that in closer proximity to it, than his own home were the bird cages I earlier described, approximately 25 to 30 metres from the “rear shed”, with very expensive exotic birds which on his own account he visited regularly because of his considerable interest in their welfare and their considerable value to him. Although I could not conclude that he was at the property every day, it is quite clear that he had a much greater attachment to the property than he was prepared to concede given the need for him on a regular basis to care for the birds and attend to some of his smaller scale agricultural pursuits, such as growing taro in the area adjacent to where the burnt grass was shown in the aerial photographs taken by the police. Further, his lack of action on his claimed smelling of chemicals on the one occasion that he admitted visiting the shed for an inspection is difficult to understand, if the inspection occurred, given the potential risk to the welfare of his birds by those chemicals. Though I note this latter aspect of the matter was not the subject of questioning of him.
Even if the specific lie as to the identity of the ‘lessee’ I have identified is not available as evidence of consciousness of guilt, there are so many significant untruths told by the accused that in respect of central issues as to his denial of what the Crown’s case otherwise is capable of proving, that the accused’s denials of relevant matters are devoid of credibility. Only one person, having regard to all the other evidence, could have, at the very least, permitted the use of the “rear shed” for the purpose of manufacturing drugs and that was the accused. The suggestion that it is a reasonable possibility that other people were responsible with a connection with the property is without foundation and contrary to the accused’s own admissions.
The accused’s possession of a large quantity of “Shellite” containers links him to knowledge of the activities in the “rear shed”. That he was to use them for an “innocent purpose” is neither here nor there. He told a deliberate lie to investigating police about the identity of the source of the cans and then lied to this Court as to the character of his relationship with that person as the Crown demonstrated in cross-examination. There is a probability that the containers came from the “rear shed”. But the evidence by itself, or in conjunction with other evidence, is not sufficient to show that the accused physically took part in the manufacture of prohibited drugs. His purchase of plastic containers and a measuring jug to my mind is coincidental. They may have been used without the accused’s permission.
In assessing the accused’s credibility I have taken into account his “good character” as I have in relation to the issue of the likelihood of him having committed all and/or each of the offences charged. I have also taken into account the absence of potentially incriminating evidence in the house (apart from the “Shellite” cans which were not hidden) such as prohibited drugs, the subject of manufacture in the “rear shed”. Further, although not raised in submissions, I have taken into account the absence of any evidence of “enrichment” or “indicia” of commercial supply of prohibited drugs in the possession of the accused.

Re: Count 4

I am satisfied the accused has discharged the onus upon him (s 29 DMT) and established on balance that the drugs were in his possession for purposes other than supply.
He maintained that he had obtained the cannabis for free, that it was of poor quality, that he had discarded it either in or outside the “rear shed” a short time after bringing it to the property about a year before the police search and that he had no intention of selling it or giving it to others. He said that in fact he had forgotten about it. In September 2017 when he was supplying cannabis to other people, as indicated by the telephone intercepts (Exhibit J), he said that cannabis was of a higher quality. Thus he did not consider it as something he could supply to others when he could not obtain cannabis from other sources. As to the quality of the cannabis, the botanist who issued the Analyst’s Certificate (Exhibit O2), Mr Indsto, gave the contents of the bag a proper examination and was satisfied, having taken a representative sample for testing, that the cannabis was in an homogenous state, and although dry, had not deteriorated in quality. He said that it would take only several days to dry cannabis. He accepted that it was a “low grade” of drug by comparison to “head” or “floral structures”. He accepted that leaf cannabis has a lower active ingredient than that found in cannabis “heads”. Given the accused’s personal use of cannabis (also reflected in Exhibit J) the failure to take the opportunity to use the cannabis leaf when he had the discussions about supplying cannabis to others is consistent with it not being considered appropriate for supply. I appreciate claiming that he “forgot” about it may be ostensibly inconsistent with this position. But given the quantity, that he may have forgotten about it reflected the low esteem in which it was held and/or the circumstances in which he claimed that he gained possession of it; ie. it was given away because it was not valuable or prized.

This reasoning, of course, reflects acceptance of parts of the accused’s evidence. I am entitled to accept some and reject other parts of the accused’s evidence, as I may, on rational grounds, with any witness. The reality is that the cannabis allegation is a far less serious charge than the other charges and it seems to the Court, having regard to the manner of giving evidence, that the accused realises that.

CONCLUSION

I am satisfied beyond reasonable doubt that all the elements required to be established by the Crown in relation to Counts 1 and 3 have been established. I am satisfied beyond reasonable doubt that the accused provided the premises in which processes of manufacture of prohibited drugs occurred and permitted any such step in that process be taken in those premises (the “rear shed”) in respect of which he participated in its management. I propose to find the accused “guilty” of those counts.
In respect of Count 2, whilst I am satisfied beyond reasonable doubt that the accused, on the same basis as set out above, knowingly took part in the manufacture of the prohibited drug MDMA. I am not satisfied beyond reasonable doubt that the Crown has established the manufacture of a large commercial quantity of the prohibited drug MDMA. Pursuant to s.24 Drug Misuse and Trafficking Act, 1985 I propose to find the accused “guilty” of an alternative charge available under the Act, of knowingly take part in the manufacture of not less than an indictable quantity of the prohibited drug MDMA, which is not less than 1.25g and not greater than 125g. In this regard I note the mathematics of Counsel for the accused and referencing the purity of MDMA in other waste products as demonstrating, given the volume of the material in the 1000L “IBC” container, that there must have been more than 1.25g of MDMA within that waste material. I have considered whether the evidence permits the finding of guilt in relation to a charge of taking part in the manufacture of a commercial quantity of the prohibited drug MDMA. However, the unsatisfactory state of the evidence relating to the sampling from the 1000 litre IBC container does not permit me to be satisfied beyond reasonable doubt that the quantity of the prohibited drug was greater than 125g but less than 500g.

I propose to find the accused “not guilty” of Count 4.

**********

EXHIBIT No.

Date

Tendered

Tendering Party

Tendered Through

Description

A1

06/10/2020

Crown

Expert certificate of Daniel Richard Coghlan dated 31 May 20129

A2

06/10/2020

Crown

Expert certificate of Daniel Richard Coghlan dated 19 July 2019

A3

08/10/2020

Crown

Daniel Richard Coghlan

Folder containing expert report of witness

A4

08/10/2020

Crown

Daniel Richard Coghlan

Supplementary report of witness

B

06/10/2020

Crown

Aerial view of 1 Mansfield Road Galston

B1

06/10/2020

Crown

6 photographs taken from POLAIR of buildings on the property at 1 Mansfield Road Galston

C

06/10/2020

Crown

Salvatore Calacoci

Photo of damage caused by runoff of liquid from shed

C1

06/10/2020

Crown

Salvatore Calacoci

Photos taken by witness of burnt areas of runoff

C2

06/01/2020

Crown

Salvatore Calacoci

2 photos of bulk chemical containers similar to ones seen in shed on property

D

06/10/2020

Crown

DSC Timothy Keary

Photo of tax invoice from the bedroom of Joseph Merhi

E

06/10/2020

Crown

DSC Timothy Keary

Disc of search warrant being executed at 1 Mansfield Rd Galston 29-30/09/2017

E1

08/10/2020

Crown

DSC Timothy Keary

Handwritten list of phone numbers found in accused’s room during search

F

06/10/2020

Crown

DSC Luke Middleton

Statement of witness dated 25/01/2019

G

07/10/2020

Crown

Diedre Grace

Tax invoice 00186353 from People in Plastics dated 14/02/2017

G1

07/10/2020

Crown

Diedre Grace

Website catalogue description of items on invoice 00186353

G2

07/10/2020

Crown

Diedre Grace

Tax invoice 00186355 from People in Plastics dated 02/03/2017

G3

07/10/2020

Crown

Diedre Grace

Website catalogue description of items on invoice 00186355

H1

08/10/2020

Crown

Photo of clear plastic measuring jug found in shed

H2

08/10/2020

Crown

3 photos of 100L black plastic drum found in shed

H3

08/10/2020

Crown

2 photos of 200L blue plastic drum 60% full found in shed

H4

08/10/2020

Crown

2 photos of 200L blue plastic drum 75% full found in shed

H5

08/10/2020

Crown

Statement of DSC Ziebots dated 24/11/2020

J

09/10/2020

Crown

DSC Timothy Keary

Disc of edited phone calls from Joseph Merhi’s phone

J1

09/10/2020

Crown

DSC Timothy Keary

Transcript of phone calls from Joseph Merhi’s phone

K

09/10/2020

Crown

Admissions document signed and dated 07/10/2020

L

09/10/2020

Crown

DSC Timothy Keary

Disc of ERISP of accused dated 03/01/2018

L1

09/10/2020

Crown

DSC Timothy Keary

Transcript of ERISP of accused dated 03/01/2018

L2

09/10/2020

Crown

DSC Timothy Keary

Photos shown during ERISP of the accused

M

12/10/2020

Crown

DSC Timothy Keary

Statement of Leonardo Castro dated 20/07/2020

M1

12/10/2020

Crown

DSC Timothy Keary

Photo of Iphone 6 seized from Cash Stop Merrylands

M2

12/10/2020

Crown

DSC Timothy Keary

USB containing Cellebrite download from Joseph Merhi’s Iphone 6

M3

12/10/2020

Crown

DSC Timothy Keary

Cellebrite extraction report from Iphone 6 on 24/09/2018

M4

12/10/2020

Crown

DSC Timothy Keary

Cellebrite extraction report of messages between accused and George Merhi, Joe Spare, Joe Khoury and Sam Calicoci

M5

12/10/2020

Crown

DSC Timothy Keary

Cellebrite extraction report of messages between Joe Merhi and Joe Khoury

M6

13/10/2020

Crown

USB containing Cellebrite download of Iphone 6 (EX M3)

N

12/10/2020

Crown

DSC Timothy Keary

Statement of Josephine Merhi dated 22/12/2017

O

13/10/2020

Crown

Matthew Paul

Analysist’s Certificate of witness dated 08/01/2019

O1

13/10/2020

Crown

Matthew Paul

Analysist’s Certificate of witness dated 05/07/2019

O2

13/10/2020

Crown

James Indsto

Analysist’s Certificate of witness dated 13/10/2017

O3

13/10/2020

Crown

Steven Watton

‘Clan Lab’ Job Summary dated 30/09/2017

P

13/10/2020

Crown

DSC Timothy Keary

Pawn slip from Cash Stop Merrylands for I phone 6S Plus

P1

13/10/2020

Crown

DSC Timothy Keary

Cellebrite Extraction Report from Samsung GT phone belonging to accused

P2

13/10/2020

Crown

Disc of Cellebrite analysis of Samsung GT phone belonging to accused

Q

13/10/2020

Crown

DSC Timothy Keary

Letter from Fair trading re: registration of rental agreement

R

15/10/2020

Crown

Joseph Merhi

3 business related documents for Recochem Inc

R1

15/10/2020

Crown

Joseph Merhi

Extraction report from accused’s phone 24/09/2018

S

16/10/2020

Crown

Merhi Chronology document

T

16/10/2020

Crown

Photos of bag of cannabis leaf found during search of the rear shed

1

15/10/2020

Defence

Joseph Merhi

Copy of letter sent from George Merhi to accused re: phone call from Hornsby police

EXHIBIT No.	Date Tendered	Tendering Party	Tendered Through	Description
A1	06/10/2020	Crown	Expert certificate of Daniel Richard Coghlan dated 31 May 20129
A2	06/10/2020	Crown	Expert certificate of Daniel Richard Coghlan dated 19 July 2019
A3	08/10/2020	Crown	Daniel Richard Coghlan	Folder containing expert report of witness
A4	08/10/2020	Crown	Daniel Richard Coghlan	Supplementary report of witness
B	06/10/2020	Crown	Aerial view of 1 Mansfield Road Galston
B1	06/10/2020	Crown	6 photographs taken from POLAIR of buildings on the property at 1 Mansfield Road Galston
C	06/10/2020	Crown	Salvatore Calacoci	Photo of damage caused by runoff of liquid from shed
C1	06/10/2020	Crown	Salvatore Calacoci	Photos taken by witness of burnt areas of runoff
C2	06/01/2020	Crown	Salvatore Calacoci	2 photos of bulk chemical containers similar to ones seen in shed on property
D	06/10/2020	Crown	DSC Timothy Keary	Photo of tax invoice from the bedroom of Joseph Merhi
E	06/10/2020	Crown	DSC Timothy Keary	Disc of search warrant being executed at 1 Mansfield Rd Galston 29-30/09/2017
E1	08/10/2020	Crown	DSC Timothy Keary	Handwritten list of phone numbers found in accused’s room during search
F	06/10/2020	Crown	DSC Luke Middleton	Statement of witness dated 25/01/2019
G	07/10/2020	Crown	Diedre Grace	Tax invoice 00186353 from People in Plastics dated 14/02/2017
G1	07/10/2020	Crown	Diedre Grace	Website catalogue description of items on invoice 00186353
G2	07/10/2020	Crown	Diedre Grace	Tax invoice 00186355 from People in Plastics dated 02/03/2017
G3	07/10/2020	Crown	Diedre Grace	Website catalogue description of items on invoice 00186355
H1	08/10/2020	Crown	Photo of clear plastic measuring jug found in shed
H2	08/10/2020	Crown	3 photos of 100L black plastic drum found in shed
H3	08/10/2020	Crown	2 photos of 200L blue plastic drum 60% full found in shed
H4	08/10/2020	Crown	2 photos of 200L blue plastic drum 75% full found in shed
H5	08/10/2020	Crown	Statement of DSC Ziebots dated 24/11/2020
J	09/10/2020	Crown	DSC Timothy Keary	Disc of edited phone calls from Joseph Merhi’s phone
J1	09/10/2020	Crown	DSC Timothy Keary	Transcript of phone calls from Joseph Merhi’s phone
K	09/10/2020	Crown	Admissions document signed and dated 07/10/2020
L	09/10/2020	Crown	DSC Timothy Keary	Disc of ERISP of accused dated 03/01/2018
L1	09/10/2020	Crown	DSC Timothy Keary	Transcript of ERISP of accused dated 03/01/2018
L2	09/10/2020	Crown	DSC Timothy Keary	Photos shown during ERISP of the accused
M	12/10/2020	Crown	DSC Timothy Keary	Statement of Leonardo Castro dated 20/07/2020
M1	12/10/2020	Crown	DSC Timothy Keary	Photo of Iphone 6 seized from Cash Stop Merrylands
M2	12/10/2020	Crown	DSC Timothy Keary	USB containing Cellebrite download from Joseph Merhi’s Iphone 6
M3	12/10/2020	Crown	DSC Timothy Keary	Cellebrite extraction report from Iphone 6 on 24/09/2018
M4	12/10/2020	Crown	DSC Timothy Keary	Cellebrite extraction report of messages between accused and George Merhi, Joe Spare, Joe Khoury and Sam Calicoci
M5	12/10/2020	Crown	DSC Timothy Keary	Cellebrite extraction report of messages between Joe Merhi and Joe Khoury
M6	13/10/2020	Crown	USB containing Cellebrite download of Iphone 6 (EX M3)
N	12/10/2020	Crown	DSC Timothy Keary	Statement of Josephine Merhi dated 22/12/2017
O	13/10/2020	Crown	Matthew Paul	Analysist’s Certificate of witness dated 08/01/2019
O1	13/10/2020	Crown	Matthew Paul	Analysist’s Certificate of witness dated 05/07/2019
O2	13/10/2020	Crown	James Indsto	Analysist’s Certificate of witness dated 13/10/2017
O3	13/10/2020	Crown	Steven Watton	‘Clan Lab’ Job Summary dated 30/09/2017
P	13/10/2020	Crown	DSC Timothy Keary	Pawn slip from Cash Stop Merrylands for I phone 6S Plus
P1	13/10/2020	Crown	DSC Timothy Keary	Cellebrite Extraction Report from Samsung GT phone belonging to accused
P2	13/10/2020	Crown	Disc of Cellebrite analysis of Samsung GT phone belonging to accused
Q	13/10/2020	Crown	DSC Timothy Keary	Letter from Fair trading re: registration of rental agreement
R	15/10/2020	Crown	Joseph Merhi	3 business related documents for Recochem Inc
R1	15/10/2020	Crown	Joseph Merhi	Extraction report from accused’s phone 24/09/2018
S	16/10/2020	Crown	Merhi Chronology document
T	16/10/2020	Crown	Photos of bag of cannabis leaf found during search of the rear shed
1	15/10/2020	Defence	Joseph Merhi	Copy of letter sent from George Merhi to accused re: phone call from Hornsby police

Decision last updated: 01 February 2021

Medium Neutral Citation:	R v Merhi [2020] NSWDC 821
Hearing dates:	30 September 2020; 5-16 October 2020; 5 November 2020
Decision date:	05 November 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	VERDICTS - Guilty to Count 1 & Count 3 Guilty to alternate count to Count 2 Not Guilty – Count 4
Catchwords:	TRIAL BY JUDGE – knowingly take part in manufacture of large commercial quantity of prohibited drug – supply cannabis – consciousness of guilt – circumstantial evidence – admissions – prior inconsistent statements – recent inventions
Legislation Cited:	Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Evidence Act 1995
Cases Cited:	Fleming v The Queen (1998) 197 CLR 250 Siafakas v R [2016] NSWCCA 100
Category:	Principal judgment
Parties:	Regina (Crown) Joseph Merhi (Accused)
Representation:	Counsel: Mr N Adams SC (DPP) Mr P Godkin (Accused)
File Number(s):	2018/002923
Publication restriction:	No