R v Norton-St Clair & Riddle - [2005] SASC 348

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NORTON-ST CLAIR & RIDDLE
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
13 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS
Appeal and additional leave to appeal applications - each appellant was convicted in the District Court for offences contrary to s 32(1)(b) of the Controlled Substances Act 1984 - issues on appeal - admissibility of evidence - directions relating to the use of evidence - directions given on liability for joint enterprise not explicit in prosecution case as presented - directions as to what amounted to the offence - whether the verdict was unreasonable in all of the circumstances - leave applications refused - appeal dismissed.
Controlled Substances Act 1984 s 32(1)(b); Summary Offences Act 1953 s 67; Police Act 1998 (SA), referred to.
R v Long (2002) 137 A Crim R 263; R v Johnson (No 2) (2004) 143 A Crim R 395, applied.

R v NORTON-ST CLAIR & RIDDLE
[2005] SASC 348
Court of Criminal appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: Ms Norton-St Clair and Mr Riddle were tried jointly in the District Court on an Information charging them with taking part in the manufacture of a drug of dependence, namely methylamphetamine, contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA).
Each of them was found guilty by the jury.
They appeal against their convictions. In addition to the grounds on which an appeal is available as of right, or by leave already granted, each of them seeks leave to appeal on certain grounds on which a Judge refused them leave to appeal. That application for leave to appeal was considered at the same time as the hearing of the appeal on the other grounds.
The following issues arise on the appeal.
First, a challenge to the admission of evidence of the finding of a syringe and three tablets containing an illicit drug, commonly called ecstasy, in the bedroom of the house in which the offence was allegedly committed. Second, a challenge to the directions relating to the use of that evidence. Third, a challenge to the directions given by the Judge dealing with the liability of Ms Norton-St Clair on the basis of joint enterprise, and a linked complaint about the directions given by the Judge as to the significance of the fact that she was aware that a step in the manufacture of methylamphetamine was taking place at the house, in the event that such knowledge on her part was proved. Fourth, a challenge to the directions to the jury as to what amounted to taking part in the manufacture of methylamphetamine. Fifth, a submission by each of the appellants that the verdict was unreasonable, meaning that in all of the circumstances it was not open to the jury to be satisfied of guilt beyond reasonable doubt.
An outline of the case
On 3 February 2004 police, including Detective Bartlett, went to a house at 48 Battye Street, Port Pirie. The house was owned by Mr Riddle. They were investigating the stealing of certain whitegoods. The police suspected that Jimmy Riddle, the brother of the appellant Mr Riddle, was involved in that offence.
When the police came to the house, Mr Riddle and Ms Norton-St Clair were both there. The police first spoke to Ms Norton-St Clair at the gate. She went into the house, and Mr Riddle came to the gate and spoke to the police. He gave them permission to enter the house and to look for stolen property. It is relevant to note that it was a small house, comprising only three or four rooms as I understand it.
Detective Mildrum arrived while the search was in progress.
Some of the police searched the land surrounding the house, others inspected the inside of the house. They examined the kitchen area, which they described as quite cluttered. Items were seen on the kitchen table or on shelving that in due course became significant. There was some food in the refrigerator, and cups and other items on the table or on shelving. The kitchen led to a bedroom. There was a bed in the bedroom that was unmade. The police saw male and female clothing in the room. The effect of their evidence was that the house looked as if someone was living in it.
The police noticed a pungent smell in the house. On enquiry, Ms Norton-St Clair said that she and Mr Riddle were stripping wallpaper, and that was the source of the smell. I gather that the smell was said to be caused by methylated spirits sprayed or somehow put on the wall to help remove the wallpaper. There was evidence from some of the police suggesting that the walls looked as if they had been stripped or prepared for painting.
There was a door leading from the kitchen area to another room. A lounge suite was in front of the door. Constable Thompson asked Ms Norton-St Clair what was in the room. He said that she replied it was used for storage, but that she seemed hesitant. She asked Mr Riddle, who said the room was used for storage.
Constable Thompson moved the lounge suite, and opened the door slightly, taking a “quick look inside”. He noticed a very distinct smell, which he described as “acidic pungent”. He saw a “cooker” and some glassware, and immediately thought that this might be a clandestine laboratory for the making of drugs.
Constable Thompson called Detective Mildrum. He went into the room briefly, observed what was in the room, picked up a black suitcase that was in the room and then left the room. He looked in the case and saw that it contained glassware. In the room he had seen a portable gas burner, a number of stands for holding glassware and other items that he thought amounted to a clandestine drug laboratory. He also noticed a strong chemical smell in the room.
Detective Bartlett and Detective Mildrum then directed all persons present to leave the house, for safety reasons. The house was closed up and guarded by the police.
The police arrested the appellants and took them to the local police station, where they interviewed them. The following day Detective Mildrum returned to the house. With him were Mr Stanley, a police officer from the Drug and Organised Crime Branch, Dr Cox, a civilian employed in the Forensic Science Centre, and some other police officers. Detective Mildrum held a general search warrant.
The house was searched, relying on that warrant. Detective Mildrum did not enter the house. He said that he was in overall charge of the search. He remained outside while Dr Cox conducted a search, in conjunction with Mr Stanley and at least one other police officer. Detective Mildrum assigned to himself the role of photographer, and photographed items seized by the others when they were brought outside and produced to him.
As I understand it, Dr Cox decided what would be seized. Mr Stanley recorded the progress of the search using a video camera, and directed Constable Dewar to record the location of each item seized.
Dr Cox had qualifications in science, and expertise in relation to the scientific issues that arose in the case.
He gave evidence describing how methylamphetamine could be produced from pseudoephedrine, using what was called the hypophosphorous acid method. That method involves three steps. The first is to extract pseudoephedrine from commonly available pharmaceutical products. That is usually done by crushing the relevant tablets and placing the crushed material into a solvent into which the pseudoephedrine will dissolve. The pseudoephedrine is then extracted from the solvent. The second step is the conversion of pseudoephedrine to methylamphetamine using hypophosphorous acid and iodine as reagents. The third step is purification, by adding caustic soda to convert the methylamphetamine salt to methylamphetamine base or oil.
Dr Cox described items found in the house, and in particular in the kitchen and storage room, that could be used to produce methylamphetamine. Among the items found was a glass jar containing Sudafed tablets, which tablets contain pseudoephedrine. Glassware and other items found in the house were suitable for use in producing methylamphetamine by the method described by him. An item of particular importance that he found was a bottle containing liquid. The liquid was ethanol. The ethanol was found to contain dissolved pseudoephedrine and could have been the result of adding methylated spirits to crushed Sudafed tablets.
He did not find any red phosphorus or hypophosphorous acid at the premises. That meant that the process of manufacturing methylamphetamine could not have been completed at the house using the chemicals and other substances found there.
However, he also gave evidence that there was no reason or purpose that he could suggest to explain the extraction of pseudoephedrine from pharmaceutical tablets, other than as a step in the process of manufacturing methylamphetamine.
In the kitchen he found a Coca-Cola bottle, the base of which was cut off so that when inverted the neck could be used as a funnel. He found a cotton wool like substance on the kitchen table. The bottle was sitting in a glass jar. The jar contained a liquid, which was found to be ethanol. This combination of items was what he would expect to observe or find if one were filtering insoluble solid material from a solvent into which pseudoephedrine had been dissolved.
On the bed in the bedroom he found a syringe containing traces of heroin. On a wardrobe in the bedroom he found three tablets that contained an illicit drug commonly known as ecstasy.
He gave evidence that the bottle found in the bedroom, that contained ethanol and dissolved pseudoephedrine, was the result of, or amounted to, the taking of a step in the process of producing methylamphetamine. Putting it slightly differently, the effect of his evidence was that the process of producing methylamphetamine by the hypophosphorous method appeared to have been instituted in the manner described by him.
He said that he noticed a distinct smell in the storage room. He described the smell as methylated spirits or ethanol. He agreed that the application of methylated spirits to the walls could cause the same smell.
That is an outline of the Prosecution evidence. I have omitted a good deal of detail.
The Prosecution case was a circumstantial one. I will now summarise the main elements of it.
First, the fact that Ms Norton-St Clair and Mr Riddle were at the house on the day in question. It was a small house. The so-called storage room could not be described as a room that might have gone unnoticed in a large house.
Second, the house looked as if it was occupied. The bed was unmade and there was male and female clothing in the bedroom. There was food in the refrigerator. There were cups and saucers and other domestic items in the kitchen. There were toiletries in the bathroom. If Ms Norton-St Clair and Mr Riddle were living there, it would be surprising if they had not entered the storage room, and were unaware of what was in it.
Third, at one stage on the day in question Ms Norton-St Clair said that she lived there, but at another stage she said that she lived in Port Pirie at Mr Riddle’s parents’ home.
Fourth, the finding in the house of equipment that could be used to produce methylamphetamine by the hypophosphorous method, and the finding in particular of the solution containing pseudoephedrine. That solution was said to be the result of, or evidence of, the taking of a step in the production of methylamphetamine.
Fifth, the finding on the kitchen table of the Coca-Cola bottle being used, apparently, as a funnel. The fact that it was in full view was said to be significant.
Sixth, the hesitation by Ms Norton-St Clair in saying what the storage room was used for.
Seventh, the pungent smell in the house, and in the storeroom in particular. This was linked to the fact that, on the Prosecution case, the only methylated spirits found in the house was in the storeroom. The police did not find a spray that could have been used to spray methylated spirits on the wall. If the smell was coming from the storeroom, a person in the house could not fail to be aware of it.
Eighth, also on the table Dr Cox had found an electronic probe that could be used to check the acidity of the liquid, something that would be done in the course of producing methylamphetamine.
Ninth, the fact that Mr Riddle owned the house and that he and Ms Norton-St Clair were apparently living together.
Tenth, the fact that Mr Riddle said he had never looked into the storeroom and, I gather, that each of the accused denied any knowledge of what was in the storeroom.
As I understand the case, it could hardly be denied that the glassware and other items found in the house were suitable for producing methylamphetamine by the method described by Dr Cox, and that the combination of these items suggested that they were intended for that use. Nor could it really be disputed that the solution containing pseudoephedrine was a solution that one would produce at an early stage in the process of producing methylamphetamine by the method described by Dr Cox.
The central issue in the case was whether the Prosecution had established that Ms Norton-St Clair and Mr Riddle were in fact using the equipment with a view to producing methylamphetamine, or whether (at least as to what was in the storeroom) they had no knowledge that the equipment was in the house, and had nothing to do with it. Linked to this issue was the question of whether the solution containing pseudoephedrine might have been the product of activities by some other person, perhaps some time earlier, left by that person at the house, and with which the appellants had nothing to do.
Mr Riddle’s evidence was that the house had been unoccupied for some months. He and Ms Norton-St Clair were living at his father’s house elsewhere in Port Pirie, and were getting the house in question ready for occupation. Various other people, family members in particular, had had access to the house. Other people stored things at the house. Family members kept food in the freezer. Mr Riddle said that he and Ms Norton-St Clair were removing wallpaper on the day in question. They were spraying chemicals on the wall, including methylated spirits, to assist with that process. The methylated spirits was producing a strong smell. Mr Riddle said that he had not looked inside the storeroom for some time, and not since tenants in the house had left. He denied that the cut down Coca-Cola bottle was on the kitchen table. Whether the police had moved items from the storage room to the kitchen was a matter of dispute at the trial.In effect, he denied all knowledge of the clandestine laboratory. He maintained that he was not occupying the house at the time.
Mr Riddle gave evidence that Ms Norton-St Clair was ill on the day the police came to the house. She was very confused. He said that she suffered from a mental condition, for which in the past she had been admitted to hospital. He denied that she was living at the house. He said that she had been living with him at his father’s house for some weeks. He said that when the police came to the house she was in a confused state. He denied that any clothing in the bedroom was his or Ms Norton-St Clair’s.
Ms Norton-St Clair’s case was that she was an innocent bystander, who happened to be at the house when the police arrived. She had nothing to do with any of the items found in the house. She was not living there.
The evidence of finding a syringe and tablets – was it relevant and admissible?
Mr Niarchos, counsel for Mr Riddle, submits that the evidence of the police finding the syringe and three ecstasy tablets in the bedroom should not have been admitted. Mr Stokes, counsel for Ms Norton-St Clair, supports this submission.
Mr Niarchos submits that the evidence was irrelevant. Alternatively, it should have been excluded because its prejudicial effect substantially outweighed any probative value it had.
I do not accept that submission.
If the jury was satisfied that the syringe and tablets were the property of the accused or one of them, or in their possession or that of one of them, or had been or were to be used by the accused or one of them, then these items were capable of being probative of guilt. The use of illicit drugs by one or other of the accused could provide a motive or reason why that person took part in the manufacture of methylamphetamine. It might have been done to raise money to purchase drugs, or with a view to using the methylamphetamine for the purposes of the accused. It is not uncommon for this kind of link to exist in cases such as the present one.
No fingerprints or DNA evidence were proved to link either of the accused to the syringe or to the tablets. As well, the conclusion that the accused were living in the house and using the bedroom in which the items were found itself depended on circumstantial evidence. But to say that merely demonstrates that the case as a whole was a circumstantial one. These points go to the weight of the evidence, not to its admissibility.
Accordingly, the evidence was admissible. It required appropriate directions from the Judge.
The Judge gave the jury a clear direction on the required topics. He told the jury that these items assisted the prosecution case only if the jury was satisfied that the accused were “associated” with them. He told the jury to “completely disregard” the evidence if they were not so satisfied. A short explanation of what the Judge meant by “associated” would have been helpful, but in all the circumstances I am satisfied that the jury would have understood it to mean that they had to be satisfied of the matters to which I referred above.
The Judge told the jury that the relevance of these items, if the accused were associated with them, was that they might indicate a reason for the accused taking part in the manufacture of methylamphetamine.
The Judge warned the jury in clear and firm terms against reasoning that if the accused were associated with the syringe and tablets, they were of bad character or were persons likely to have committed the offence charged. That led to the Judge emphasising that the only use of the evidence was to provide a reason or motive for the manufacture of methylamphetamine.
The directions and warnings were adequate. The Judge drew a clear distinction between the appropriate and inappropriate use of the evidence.
The grounds of appeal raising these issues are not made out.
Should the evidence relating to the syringe and tablets have been excluded in the exercise of the Judge’s discretion?
Mr Niarchos submits that the syringe and ecstasy tablets were seized by the police in the course of an unlawful search of Mr Riddle’s house. Accordingly, in the exercise of his discretion, the Judge should have excluded the evidence. The submission is supported by Mr Stokes.
The submission, if sound, would apply to all of the items seized by the police on the second visit to the house.
The Judge considered a submission to this effect during the course of the trial and rejected it.
The submission that the search was illegal rests on two bases.
The warrant in question, a general search warrant issued under s 67 of the Summary Offences Act 1953 (SA), authorised Detective Mildrum
… with such assistants as you think necessary, to enter into and search any house, building, or place where you have reasonable cause to suspect that –
(i) an offence has been recently committed …:
see s 67(4) and the Schedule to the Act. The warrant also conferred power to seize goods which might afford evidence as to the commission of an offence.

The first submission is that Detective Mildrum did not exercise the power conferred by the warrant that he held. He remained outside the house. He delegated the task of searching the house and seizing goods to others, and to Dr Cox in particular. The submission is that he did not supervise or control the search of the house or seizure of evidence. It is submitted that Dr Cox could not be described as an “assistant” to the warrant holder. Accordingly, Mr Niarchos submits, the search was unlawful. The search and seizure were carried out by persons not holding a search warrant.
The second basis for the submission is that an “assistant” for the purposes of s 67 must be a police officer. Dr Cox was not a police officer, and accordingly, even if the search was conducted by Detective Mildrum, it was unlawful because of the involvement of Dr Cox.
In summarising the submission, I have also summarised the thrust of the evidence in relation to the search. I add that Detective Mildrum gave evidence that he gave directions to the persons involved in the search as to the tasks to be performed. He said that he remained on the front veranda of the house during the search. As items were brought out from the house he photographed them. He said that he directed Dr Cox and Detective Stanley to enter the premises and to search for evidence.
It was open to the Judge to find, on this evidence, that the search and seizure was carried out by Detective Mildrum, in the exercise of the powers conferred on him by the warrant.
Detective Mildrum was at the house. He claimed to exercise the power conferred by the warrant. On the evidence it was open to the Judge to find that the others involved in the search and seizure acted under his general direction. He assigned tasks to them, or to most of them, and remained present to deal with any issues that might arise.
In my opinion, in those circumstances, the search was lawful: see R v Long [2002] SASC 426, (2002) 137 A Crim R 263 at [27] Doyle CJ; R v Johnson (No 2) [2004] SASC 11, (2004) 143 A Crim R 395 at [68]-[70] Sulan J.
The question raised under this ground of appeal is ultimately one of fact. Often a warrant holder who is searching premises will require assistance. The warrant holder might need assistance because of the size of the premises, because of the amount of material to be seized, or because deciding what to examine or to seize might require an expertise that the warrant holder does not have. Bearing those practical considerations in mind, it is reading s 67 too narrowly to suggest that an assistant is limited to a person in a subordinate position, who acts entirely, or even substantially, under the direct instruction of the warrant holder. An assistant for the purposes of s 67 can include a person who acts under no more than general directions from the warrant holder, and a person who has knowledge or skills not possessed by the warrant holder that will enable that person to decide on aspects of the scope of the search, and to decide what should be seized. In the end, as I have already said, the question of whether a search is conducted by a warrant holder using assistants, or whether in the circumstances the warrant holder has failed to exercise the powers conferred by the warrant and allowed other persons to conduct a search, is one of fact.
What has to be considered is whether the warrant holder purports to exercise the power conferred by the warrant on the holder, and exercises overall control. A test in some situations may be whether the search is initiated at the direction of the warrant holder, ends at the direction of the warrant holder, and whether the warrant holder determines the place to be searched, who is to do the searching and in general terms the nature of the search. That test is premised on the assumption that an assistant may exercise a considerable degree of autonomy, or have expertise that the warrant holder does not have and must rely on.
I reject the submission that an assistant must be a member of South Australia Police for the purposes of the Police Act 1998 (SA). Had Parliament intended to require that an assistant be a police officer, I would have expected it to indicate such an intention by using words of limitation.
For those reasons I reject the submission that the search was unlawful. That makes it unnecessary to consider the Judge’s decision that, in any event, he would not have exercised his discretion to exclude the evidence obtained as a result of the search.
The Judge’s directions on joint enterprise
Mr Stokes submits that the Judge erred in directing the jury that they could convict the accused if satisfied that there was an agreement between them jointly to participate in the manufacture of methylamphetamine, and one of them took steps or a step in the process of manufacturing methylamphetamine, pursuant to that agreement.
The complaint is not about the adequacy of the direction on joint enterprise. The complaint is that it should not have been given at all. Mr Stokes correctly points out that the prosecutor did not open the case to the jury on the basis of joint liability. Nor did the prosecutor raise joint liability in the closing address. Mr Stokes complains that Ms Norton-St Clair was unfairly prejudiced by the Judge introducing this approach to the case, for the first time, in the course of summing up to the jury. Mr Stokes submits that the unfairness was compounded by the failure of the Judge to remind the jury that mere knowledge by Ms Norton-St Clair that Mr Riddle was engaged in the manufacture of methylamphetamine, if that were proved, was not sufficient to make her guilty of the offence charged.
Although the prosecutor did not refer to joint enterprise as a basis for criminal liability, liability on that basis was implicit in the prosecution case.
The prosecution case was that the circumstantial evidence, summarised above, when taken as a whole led to the conclusion that the accused were together involved in the process of manufacturing methylamphetamine, as evidenced in particular by the presence of the liquid containing dissolved pseudoephedrine in the house that, on the prosecution case, they were occupying.
The prosecutor made no attempt, and had no basis for making an attempt, to assign any particular role or step in the process to either accused. The prosecution case was that they were acting together, and implicitly was that they were doing so pursuant to an express or tacit agreement.
I consider that the Judge did no more than make explicit what was implicit. It would have been better if the prosecutor had referred to this in opening the case, and in the closing address. But to do so added nothing new as a matter of substance. It was necessary for the Judge to explain to the jury issues of law that arose from the prosecution case as presented to them. That is what the Judge did. If the Judge had not given the direction that he gave, there would have been a danger of the jury convicting Ms Norton-St Clair in particular on the basis of nothing more than her presence in the house and knowledge, if established, that Mr Riddle was involved in the manufacture of methylamphetamine there.
There was no unfairness to Ms Norton-St Clair in what the Judge did.
Perhaps not surprisingly, the jury asked a question on this topic, after they had been deliberating for some time. The question was whether, if an accused knew of the manufacture of illicit drugs, without “physically taking part”, that constituted taking part in the manufacture of the illicit drug.
The Judge gave the jury a further direction. He dealt first with the position of Mr Riddle. He directed the jury on the basis that the jury might have had in mind that Mr Riddle allowed the house (that he owned) to be used by someone else to manufacture methylamphetamine, and acquiesced in that person doing so. He explained what he meant by that.
Then the Judge turned to the position of Ms Norton-St Clair. He explained that this approach was not open on the facts in relation to her. She was not an owner of the house. There was no suggestion that she had made the house available to anyone. He told the jury that if Mr Riddle was the one who was taking the active role in the manufacture of methylamphetamine, Ms Norton-St Clair could be liable if he did so pursuant to an agreement between them. He repeated his directions on joint enterprise. He emphasised several times the need for a joint agreement.
I consider that no complaint can be made about this further direction. It emphasised to the jury that knowledge by Ms Norton-St Clair that someone was manufacturing methylamphetamine was not enough.
A separate complaint is made that the Judge should have reminded the jury that it was not enough to prove guilt that Ms Norton-St Clair knew that Mr Riddle was manufacturing methylamphetamine, if there was no arrangement or agreement between them. I consider it was not necessary to do so. The Judge’s clear emphasis on the need to establish an agreement was sufficient. He did so in response to a question that was premised on mere knowledge, and no participation. His answer to the jury stressed that Ms Norton-St Clair was guilty only if there was an agreement. The directions could not have been misunderstood.
The Judge’s directions relating to the requirement to prove that the accused took part in the manufacture of methylamphetamine
Mr Riddle seeks leave to appeal (leave having been refused by the single Judge) on a ground that complains that the Judge erred in his directions about proof that the accused took part in the manufacture of methylamphetamine.
The complaint arises from the Judge’s treatment of evidence about the bottle containing ethanol, in which was dissolved pseudoephedrine.
In light of the evidence, the jury could readily have decided that the bottle and its contents were the result of someone taking the first step in the process of producing methylamphetamine by the hypophosphorous method described by Dr Cox. The solution in the bottle evidenced the taking of the first step of dissolving pharmaceutical tablets in a solvent so as to enable the pseudoephedrine to be extracted from the solvent.
Dr Cox was questioned at some length about the solution. On occasions, on my reading of the evidence, there was some confusion as between Dr Cox and the questioners, and some of the evidence is not altogether clear.
However, as I read the evidence, Dr Cox was not in a position to say that the process of dissolving pseudoephedrine into the solvent was still continuing when he found the bottle and the solution. Indeed, on my reading of the evidence, it is probable that the process was complete. There was no way of saying just when the process had begun or when it had finished, if it had finished. Theoretically it was possible that the process had taken place elsewhere, and that the bottle containing the solution had been brought to the house. It was theoretically possible that the process of dissolving the tablets in the solution had taken place some days before, or even some weeks before.
The submission advanced by Mr Niarchos at times seemed to be that the Judge had to direct the jury that they could convict the accused only if the jury was satisfied that the process of dissolving pseudoephedrine into the solvent was underway or continuing when the police came to the house. I reject that submission. The accused could be found guilty if they had completed the relevant step of the process one day before the police arrived, one week before the police arrived, and so on. The issue of whether, when the police arrived, the process of dissolving the pseudoephedrine was still continuing was a false one. It did not matter if it was complete.
It was necessary, having regard to the manner in which the prosecution case was conducted, to prove that the accused had taken part in dissolving the pseudoephedrine into the ethanol, in the bottle found at the premises, and that they were intending in due course (had they not been interrupted) to take the further steps necessary to manufacture methylamphetamine. That point was adequately brought to the jury’s attention. If the jury thought it was a reasonable possibility that someone else had left the bottle containing the solution in the house, and that the bottle and the solution were not connected with the accused, then having regard to the Judge’s directions they would have acquitted the accused. I am equally satisfied that if the jury thought it a reasonable possibility that the accused were responsible for the solution in the bottle, but were not satisfied (unlikely as it might seem) that the accused intended to proceed to the next stage of the process, then the accused would have been acquitted.
I am equally satisfied that the Judge drew to the jury’s attention the need to be satisfied that whatever had happened, it had gone beyond the merely preliminary or preparatory steps of preparing to undertake the process of manufacture.
I can find no flaw in the Judge’s directions on the law in this respect.
The Judge rightly focussed to some extent on the bottle containing the solution. That bottle was evidence that someone had taken the first step in the relevant process. The Judge rightly told the jury that. The question for the jury was whether it was the accused who had done so, whether they had done so in the period covered by the charge, and whether they intended (if not interrupted) to proceed to the manufacture of methylamphetamine. There is no basis for the suggestion that the jury was told that the mere fact that pseudoephedrine had been dissolved in the solution was proof of the charge. The Judge made it clear that the prosecution must prove that this was intended to lead on to the manufacture of methylamphetamine.
There is no substance in this point. I would refuse leave to appeal.
Mr Riddle seeks leave to appear on a linked ground. The jury asked a question about the significance of the fact that the charge alleged that the accused had taken part in the manufacture of methylamphetamine between 1 January 2004 and 4 February 2004. The Judge directed the jury to focus on what the police found at the house on the two days in question. He told them, in effect, that to convict the accused they had to be satisfied that what the police found at the house established that the accused were then taking part in the manufacture of methylamphetamine.
I accept that there was an element of imprecision in this. It might be said, what if the accused had dissolved the tablets into the solution a week before? But considering how the case was presented, there is no risk of any miscarriage of justice as a result of this. I am satisfied that the jury would have approached the case on the basis, as it was put to them in substance, that the accused were at the time in question involved in the manufacture of methylamphetamine and were actively involved in that process at the time the police came to the house, or had been actively involved a short time before.
Mr Niarchos submits that the Judge should have reminded the jury that there was no evidence to prove that the extraction of pseudoephedrine from pharmaceutical tablets was in process when the police came to the house. The process might have been complete. But this is the point with which I have just dealt, in a different guise. There was some confusion surrounding how this topic was put to the jury. It did not matter that the process of dissolving pseudoephedrine was complete. The issue was whether the accused were involved in the process, at about the time the police came to the house, with a view to proceeding to manufacture methylamphetamine. In the context of how the case was fought, the Judge’s directions were sufficient.
I would refuse leave to appeal on each of these grounds.
Is the verdict unsafe?
Mr Stokes submits that the verdict is unsafe. Mr Niarchos seeks leave to argue that the verdict is unsafe, leave having been refused to his client on this ground.
I have summarised the prosecution case. It was a circumstantial case. Much simplified, it is as follows. The police found a bottle containing a solution that would be the result of taking the first step in the process of manufacturing methylamphetamine; they found equipment of a kind that could be used to produce methylamphetamine, although not all of the chemicals required were at the house, and although not all of the equipment was set up; there was evidence that the accused lived at the house; there was evidence (by smell) that the process of dissolving pseudoephedrine was in train, or had recently taken place; the accused were associated with other illicit drugs.
The submission by Mr Stokes is that, taken as a whole, the evidence could not give rise to proof beyond reasonable doubt. He made the following points. Ms Norton-St Clair was in a confused state, and at one stage said that she lived at the house in question, and at another stage said she lived at Mr Riddle’s parents’ home. There was no fingerprint evidence to confirm that either of the accused had used any of the items said to indicate the house was lived in. There was no fingerprint or DNA evidence to link either the accused to any of the incriminating items. There was no proof that the clothing in the house belonged to Ms Norton-St Clair, or even was her size. The pungent smell described by the police could be due to the removal of wallpaper. There was nothing at all to link either of the accused to the items found in the storeroom. It was part of the defence case that certain incriminating items that the police said were found on the kitchen table, for example, the probe and funnel, were removed by the police from the storeroom and put on the kitchen table. There was no evidence linking the accused to the syringe or the tablets. There was no evidence that notes relating to the manufacture of methylamphetamine were written by either accused. There was no evidence that traces of relevant chemicals were found on the person or clothing of the accused. There was evidence from Mr Riddle that other persons had occupied the house. These were the main points made.
Individually and taken together these are reasonable points. There are gaps in the prosecution case. In my view there was ample evidence on which it was open to the jury to be satisfied of the guilt of the accused beyond reasonable doubt. In particular, if the jury did not accept the explanation offered by the accused for the pungent smell, then having regard to the fact that it was a small house, and to the almost inevitable conclusion that the source of the smell was the bottle in the storeroom, and taking into account the evidence suggesting that the house was occupied, there was a very solid basis for the jury to conclude that the accused had recently set about dissolving pharmaceutical tablets containing pseudoephedrine into a solvent.
I do not accept the submission by Mr Stokes that the verdict is unsafe.
I would refuse leave to Mr Riddle to appeal on this ground. The argument that he advances is, in substance, a repetition of the argument relating to the Judge’s directions about proof that the accused were engaged in the production of methylamphetamine.
Conclusion
For those reasons I would dismiss the appeal by each accused against their respective convictions.
BLEBY J: I agree that both appeals should be dismissed for the reasons given by the Chief Justice.
GRAY J: I would dismiss these appeals. I agree with the orders proposed by the Chief Justice. I agree with his reasons.