R v Panas
[2022] SADC 149
•16 December 2022
District Court of South Australia
(Criminal)
R v PANAS
Criminal Trial by Judge Alone
[2022] SADC 149
Reasons for the Verdict of her Honour Judge Schammer
16 December 2022
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - MANUFACTURE, PRODUCTION OR CULTIVATION
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW - DISCRETION TO EXCLUDE
On Sunday 19 May 2019, at about 3:00pm, a fire broke out at a property on The Esplanade, Henley Beach (the property).
On 17 May 2019, the accused, Andreas Nikiforos Panas, rented the property through AirBNB for a period of six nights, commencing that day.
The fire came to the attention of neighbours who gained access to the property. They found the accused and another man inside the property and helped them to safety. The accused then left the property prior to the arrival of emergency personnel. The other man attempted to run away from the property, towards the beach, but was followed and apprehended by police.
In the upstairs bathroom of the property was a clandestine laboratory being used to produce methylamphetamine and a total of 1,225 g of pure methylamphetamine (count 1).
Investigators determined the fire emanated from the gas burner being used in the manufacture of methylamphetamine (count 5).
In the rear courtyard of the property, was a clear plastic tub containing a mixed substance of 4-Hydroxybutanoic acid (GHB) and water, with a total weight of 6.49 kg (count 2).
In a drawer in the upstairs bathroom, were two small plastic resealable bags. One bag contained a crystalline substance which weighed 18.5 g and contained 14.7 g of pure methylamphetamine and one bag contained a crystalline substance containing 1.94 g of methylamphetamine (count 3).
A 600 ml plastic Mount Franklin water bottle was found in a public carpark a short distance from the property, in the vicinity of where the other man had been apprehended. In that bottle was a mixture of GHB and water weighing 320 g (count 4).
As to count 1, the prosecution case is that the accused and another man, were engaged in a joint enterprise to manufacture a large commercial quantity of methylamphetamine at the property. In the alternative, it was submitted that the accused had taken part in a step in the process of manufacture in that he had provided or allowed the use of the property for the purpose of the manufacture of methylamphetamine and guarded or concealed equipment substances or materials.
As to count 2, the prosecution case is that the accused was jointly in possession of the GHB found in the plastic tub, being a large commercial quantity, or in the alternative, that the accused had taken part in a step in the process of sale of that GHB, in that he had provided or allowed the use of the property for the purpose of the sale of that GHB.
As to counts 3 and 4, the prosecution case is that the accused was in joint possession with another of the drugs the subject of each count, for the purposes of selling those drugs.
As to count 5, the prosecution case is that the accused knew that there was a substantial risk his actions, in participating in the manufacture of methylamphetamine, and specifically in failing to continually monitor the gas burner, would cause damage to property, but he proceeded to act in any event (count 5).
The accused voluntarily attended the Port Adelaide Police Station at 12:15am on Monday 20 May 2019, during which time he participated in a record of interview. At the very start of the interview and before the police had complied with their obligations under s 79A of the Summary Offences Act 1953, the accused said to the police, ‘I wasn’t even there … I wasn’t there the whole time’ and said ‘… I was at the casino’. At trial, the accused applied to exclude the whole of the record of interview from the evidence. Only a portion of the record of interview was excluded.
The accused gave evidence wherein he denied the offending. He admitted that he was at the property when the fire broke out and that he was, therefore, one of the two men who was assisted from the property by the neighbours. He claimed to have been away from the property for the majority of time he had been renting it and denied any knowledge of the clandestine drug laboratory or of any of the drugs found by police at or near the property.
The prosecution case on all counts was a circumstantial case and included reliance on records relating to the accused’s mobile phone service.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927.
Verdict:
1. The accused is guilty of count 1.
2. The accused is not guilty of counts 2, 3, 4 and 5.
Juries Act 1927 (SA) s 7; Controlled Substances Act 1984 (SA) ss 4, 32, 33; Summary Offences Act 1953 (SA) s 79A, referred to.
R v Scarpantoni [2013] SASCFC 120; Zenuni v The King [2022] SASCA 106; R v Nguyen [2010] SASCFC 23; R v Wood (2017) 131 SASR 291; Harris v The Queen (1990) 55 SASR 321; R v Quist (2017) 127 SASR 471; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Rockford [2015] SASCFC 51; R v Golja [2017] SASCFC 61; Pollard v The Queen (1992) 176 CLR 177; Ridgeway v The Queen (1995) 184 CLR 19; R v Bueti (1997) 70 SASR 370, considered.
R v PANAS
[2022] SADC 149[Criminal]
Introduction
On Sunday, 19 May 2019, at about 3:00pm, a fire broke out at a property located at Unit 2/219 The Esplanade, Henley Beach (the property).
Prior to the fire, the property was being offered for short-term rent and for use as holiday accommodation on the AirBNB platform. On 17 May 2019, the accused, Andrea Panas, rented the property through AirBNB for a period of six nights, commencing that day.
The fire came to the attention of neighbours, who gained access to the property. They found the accused, and another man, inside the property and helped them to safety. The accused then left the property prior to the arrival of emergency personnel. The other man, later identified as Mr Linke, attempted to run away from the property, towards the beach, but was followed and apprehended by police.[1]
[1] Linke was charged with the same five counts as the accused.
Investigators identified the source of the fire as being in the upstairs bathroom. That bathroom was being used as a clandestine laboratory to produce methylamphetamine and had produced a total of 1,225 g of pure methylamphetamine (count 1).
In the rear courtyard of the property, police found a clear plastic tub containing a mixed substance of 4-Hydroxybutanoic acid (GHB)[2] and water, with a total weight of 6.49 kg (count 2). In a drawer in the upstairs bathroom, were two small plastic resealable bags. One bagged contained a crystalline substance which weighed 18.5 g and contained 14.7 g of pure methylamphetamine and one bag contained a crystalline substance containing 1.94 g of methylamphetamine (count 3). A 600 ml plastic Mount Franklin water bottle was found in a public carpark a short distance from the property, in the vicinity of where the other man had been apprehended. In that bottle was a mixture of GHB and water weighing 320 g (count 4).
[2] Also known as fantasy.
As to count 1, the prosecution case is that the accused and Mr Linke were engaged in a joint enterprise to manufacture a large commercial quantity of methylamphetamine at the property. In the alternative, it was submitted that at the very least, the accused had taken part in a step in the process of manufacture in that he had provided or allowed the use of the property for the purpose of the manufacture of methylamphetamine and guarded or concealed equipment substances or materials.[3]
[3] Whether the prosecution case as to count 1 was properly a case based on joint enterprise will be addressed in these Reasons.
As to count 2, the prosecution case is that the accused was jointly in possession of the GHB found in the plastic tub, being a large commercial quantity, or, in the alternative, that the accused had taken part in a step in the process of sale of that GHB, in that he had provided or allowed the use of the property for the purpose of the sale of that GHB.
As to counts 3 and 4, the prosecution case is that the accused was in joint possession with Mr Linke of the drugs the subject of each count, for the purposes of selling those drugs.
As to count 5, the prosecution case is that the accused knew that there was a substantial risk his actions, in participating in the manufacture of methylamphetamine, and specifically in failing to continually monitor the gas burner, would cause damage to property, but he proceeded to act in any event (count 5).
The accused voluntarily attended the Port Adelaide Police Station at 12:15am on Monday 20 May 2019, during which time he participated in a record of interview. During the interview, the accused denied the offending and stated, ‘I wasn’t even there…I wasn’t there the whole time’.[4] He said, ‘… I was at the casino’.[5]At trial, the accused applied to exclude the record of interview from the evidence. Only a portion of the record of interview was excluded.
[4] MFI P24 at p 2 lines 10-11.
[5] MFI P24 at p 2 line 15.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927.
The accused gave evidence wherein he denied the offending. He admitted that he was inside the property when the fire broke out and that he was, therefore, one of the two men who was assisted from the property by the neighbours.
He claimed to have been away from the property for much of the time he had rented it. Specifically, he claimed to have been at the Casino between around 12:00am and 9:00am on Sunday 19 May 2019 and to have been in his car, outside of the property, drifting in and out of sleep, from around 9:00am until 1:00pm that day, and that thereafter, he never entered the upstairs floor of the property.
The accused denied any knowledge of the clandestine drug laboratory or of any of the drugs found by police at or near the property.
The Charges
First Count
Statement of Offence
Manufacturing a Large Commercial Quantity of a Controlled Drug. (Section 33(1) of the Controlled Substances Act, 1984.)
Particulars of Offence
Andreas Nikiforos Panas between the 16th day of May 2019 and the 20th day of May 2019 at Henley Beach, manufactured a large commercial quantity of a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
It is alleged that the quantity of pure methylamphetamine manufactured was approximately 1,225 grams.
Second Count
Statement of Offence
Trafficking a Large Commercial Quantity of a Controlled Drug. (Section 32(1) of the Controlled Substances Act, 1984.)
Particulars of Offence
Andreas Nikiforos Panas on the 19th day of May 2019 at Henley Beach, trafficked in a large commercial quantity of a controlled drug, namely 4-Hydroxybutanoic acid (GHB), knowing or being reckless as to the fact the substance was a controlled drug.
Third Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984.)
Particulars of Offence
Andreas Nikiforos Panas on the 19th day of May 2019 at Henley Beach, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Fourth Count
Statement of Offence
Trafficking in a Controlled Drug. (Ibid.)
Particulars of Offence
Andreas Nikiforos Panas on the 19th day of May 2019 at Henley Beach, trafficked in a controlled drug, namely 4-Hydroxybutanoic acid (GHB), knowing or being reckless as to the fact the substance was a controlled drug.
Fifth Count
Statement of Offence
Arson (Section 85(1) of the Criminal Law Consolidation Act, 1935.)
Particulars of Offence
Andreas Nikiforos Panas on the 19th day of May 2019 at Henley Beach, knowing that he had no lawful authority to do so, damaged by fire a house, intending to damage property of being recklessly indifferent as to whether his conduct damaged property, the said damage amounting to less than $30,000.
Elements of the Offences
Count 1: Manufacturing a Large Commercial Quantity of a Controlled Drug
The prosecution must prove each of these three elements of the offence beyond reasonable doubt, namely that:
1.The accused intentionally manufactured a controlled drug.
2.The amount manufactured is or will be a large commercial quantity.
3.The accused manufactured the drug with the intention of selling at least some of it or believing that another person intended to sell at least some of it.
Methylamphetamine is a ‘controlled drug’.
‘Manufacture’ in relation to a controlled drug means:
(a)undertake any process by which the drug is extracted, produced or refined; or
(b)take part in the process of manufacture of the substance.[6]
[6] Section 4 of the Controlled Substances Act 1984.
A person takes part in the process of manufacture of a controlled drug, if the person ‘directs, takes or participates in any step or causes any step to be taken’, in the process of manufacture.[7]
[7] Section 4(4) of the Controlled Substances Act 1984.
A ‘step in the process of manufacture’ of a controlled drug includes, without limitation, any of the following if done for the purpose of manufacture of the drug:
(a)acquiring equipment, substances or materials;
(b)storing equipment, substances or materials;
(c)carrying, transporting, loading or unloading equipment, substances or materials;
(d)guarding or concealing equipment, substances or materials;
(e)providing or arranging finance (including finance for the acquisition of equipment, substances or materials);
(f)providing or allowing the use of premises or jointly occupying premises.[8]
[8] Section 4(6) of the Controlled Substances Act 1984.
A ‘large commercial quantity’ of methylamphetamine, in relation to methylamphetamine contained in a mixture, is a quantity of the drug that equals or exceeds 0.75 kg, or a quantity of the mixture which equals or exceeds 1 kg.[9] A large commercial quantity of methylamphetamine in its pure form is a quantity of the drug that equals or exceeds 0.75 kg.[10]
[9] Section 4 of the Controlled Substances Act 1984; Schedule 1, Part 2 – Drugs of Dependence; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014.
[10] Ibid.
There is no requirement for the prosecution to prove the accused intended to manufacture a large commercial quantity of methylamphetamine, it need only prove that the accused intended to manufacture methylamphetamine.[11]
[11] R v Scarpantoni [2013] SASCFC 120 at [30]-[39], per Kourakis CJ and Sulan J.
As to the third element, if it is proved the accused manufactured a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary, that the accused had the relevant intention or belief concerning the sale of the drug necessary to constitute the offence.[12] A ‘trafficable’ quantity of methylamphetamine, in relation to methylamphetamine contained in a mixture, is a quantity of the drug that equals or exceeds 2 g.[13] The accused bears the onus of proof to rebut that presumption, on the balance of probabilities.
[12] Section 33(4)(a) of the Controlled Substances Act 1984.
[13] Ibid.
Count 2: Trafficking in a Large Commercial Quantity of a Controlled Drug
The prosecution must prove each of these five elements beyond reasonable doubt:
1.The substance is a controlled drug.
2.The accused knew or was reckless as to the fact that the substance was a controlled drug.
3.The accused trafficked in the substance.
4.There is a large commercial quantity of the substance.
5.The accused intended to traffic a quantity which is, in fact, a large commercial quantity.
4-Hydroxybutanoic acid (otherwise known as GHB) is a ‘controlled drug’.
A person ‘traffics’ in a controlled drug if they:
(a)sell the drug;
(b)have possession of the drug intending to sell it; or
(c)take part in the process of sale of the drug.[14]
[14] Section 4 of the Controlled Substances Act 1984.
A person takes part in the process of sale of a controlled drug, if the person ‘directs, takes or participates in any step or causes any step to be taken’, in the process of sale.[15]
[15] Section 4(4) of the Controlled Substances Act 1984.
A ‘step in the process of sale’ of a controlled drug includes, without limitation, any of the following if done for the purpose of sale of the drug:
(a)storing the drug;
(b)carrying, transporting, loading or unloading the drug;
(c)packaging the drug, separating the drug into discrete units or otherwise preparing the drug;
(d)guarding or concealing the drug;
(e)providing or arranging finance (including finance for the acquisition of the drug);
(f)providing or allowing the use of premises or jointly occupying premises.[16]
[16] Section 4(5) of the Controlled Substances Act 1984.
A ‘large commercial quantity’ of 4-Hydroxybutanoic acid, in relation to 4-Hydroxybutanoic acid which is contained in a mixture, is a quantity of the mixture which equals or exceeds 2 kg.[17]
[17] Section 4 of the Controlled Substances Act 1984; Schedule 1, Part 1 – Controlled Drugs other than Drugs of Dependence; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014.
A ‘large commercial quantity’ of 4-Hydroxybutanoic acid, in relation to 4-Hydroxybutanoic acid which is not contained in a mixture, is a quantity of the drug that equals or exceeds 2 kg.[18]
[18] Ibid.
As to the third element, in a case where it is alleged the accused is taking part in the process of sale of the drug, if it is proved the accused had in his possession a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary, that the accused was acting for the purpose of sale of the drug and had the relevant belief concerning the sale of the drug necessary to constitute the offence.[19] A ‘trafficable’ quantity of 4-Hydroxybutanoic acid, in relation to 4-Hydroxybutanoic acid contained in a mixture, is a quantity of the drug that equals or exceeds 50 g.[20] The accused bears the onus of proof to rebut that presumption, on the balance of probabilities.
[19] Section 32(5) of the Controlled Substances Act 1984.
[20] Section 4 of the Controlled Substances Act 1984; Schedule 1, Part 1 – Controlled Drugs other than Drugs of Dependence; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014.
Section 4(1) of the Controlled Substance Act 1984 (CSA) defines ‘possession’ as including:
(a)having control over the disposition of the substance or thing; and
(b)having joint possession of the substance or thing;
As observed by the Court of Appeal in Zenuni v The King,[21] this statutory definition does not appear to add to or confine the common law meaning of ‘possession’.
[21] [2022] SASCA 106 at [49]-[51].
A person has possession of an item if they have physical custody or control of the item or of the place in which the item is located, knowledge that the item is in their custody or control, and an intention to control the item.[22] However, mere knowledge of an item’s existence and whereabouts will not constitute possession. Physical control does not require immediate control. Nor does a person need to own an item to be in possession of it.
[22] R v Nguyen [2010] SASCFC 23 at [96] per White J.
A person is in joint possession of an item if he and another person or persons each have knowledge of the location of an item and intend, between them, to exercise control over the item to the exclusion of any other persons.[23] There must be some form of express or tacit agreement before an item could be in the joint possession of two or more people.[24]
[23] R v Nguyen [2010] SASCFC 23 at [26] per Vanstone and Kelly JJ.
[24] R v Wood (2017) 131 SASR 291 at [12], [14] per Vanstone J (with whom Kourakis CJ and Nicholson J agreed).
Counts 3 and 4: Trafficking in a Controlled Drug
The prosecution must prove each of the three elements of the offence beyond reasonable doubt:
1.The substance is a controlled drug.
2.The accused knew or was reckless as to the fact that the substance was a controlled drug.
3.The accused trafficked in the substance.
As to the third element, if it is proved the accused had in his possession a trafficable quantity of the controlled drug, it is presumed, in the absence of proof to the contrary, that the accused was acting for the purpose of sale of the drug and had the relevant belief concerning the sale of the drug necessary to constitute the offence.[25]
[25] Section 32(5) of the Controlled Substances Act 1984.
As stated earlier, ‘trafficable’ quantity of methylamphetamine, in relation to methylamphetamine contained in a mixture, is a quantity of the drug that equals or exceeds 2 g. A ‘trafficable’ quantity of 4-Hydroxybutanoic acid, in relation to 4-Hydroxybutanoic acid contained in a mixture, is a quantity of the drug that equals or exceeds 50 g.
Count 5: Arson
The prosecution must prove each of the four elements of the offence beyond reasonable doubt:
1.The accused damaged property.
2.The property is a building or a motor vehicle.
3.The accused caused the damage using fire or explosives.
4.The accused intended to damage property or was recklessly indifferent as to whether his conduct would damage property.
‘Damage’ is defined as including:
(a)to destroy the property;
(b)to make an alteration to the property that depreciates its value;
(c)to render the property useless or inoperative.
The accused will be recklessly indifferent as to whether his conduct would damage property if the prosecution proves beyond reasonable doubt that he knew there was a substantial risk that his actions would cause damage to property, but he proceeded to so act, in any event.
Witnesses
The prosecution called evidence from the following witnesses:
1.Detective Sergeant N Schollar (Officer Schollar), a member of the Police Processing Team who attended at the property the day after the fire and performed the role of exhibits officer within that specialist team.
2.Brevet Sergeant S White (Officer White), a member of the Police Processing Team who attended at the property the day after the fire and performed the role of crime scene examiner.
3.Mr B Painter, team leader of the Illicit Drugs and Clandestine Laboratory groups within the Chemistry Section of Forensic Science South Australia (FSSA).
4.Detective Sergeant J Byers (Officer Byers) of the South Australia Police Telecommunications Date Evidence Unit.
5.Detective Brevet Sergeant N Blandford (Officer Blandford) who was present at the fire as part of the initial police response team and conducted the record of interview with the accused, the following day.
6.Detective Brevet Sergeant N Porter (Officer Porter), who attended at the property both on the day of the fire, and the next day, and performed the role of exhibits officer.
7.Mr M Hogben, who was previously employed as a firefighter with the South Australian Metropolitan Fire Service (SAMFS) and attended at the property at the time of the fire.
8.Detective A O’Malley (Officer O’Malley), a member of the Serious and Organised Crime Branch, whose evidence related to the nature, manufacture and sale of methylamphetamine and GHB.
9.Officer T Singh, whose evidence was relevant to aspects of the investigation pertaining to Mr Linke and the identification procedures conducted with civilian witnesses.
10.Ms E Walker, a civilian witness to the fire.
11.Ms B Shields, a civilian witness to the fire.
12.Mr A Eikmeier, a civilian witness to the fire, who entered the property and assisted the two male occupants who were inside, to safety.
13.Mr M Armfield, an off-duty firefighter and witness to the fire, who entered the property and assisted the two male occupants who were inside, to safety.
14.Ms L Bosworth, the manager of the property.
In addition, numerous exhibits were tendered by the prosecution, including a portion of the record of interview conducted between the accused and police on 20 May 2019 (Exhibit P23) and tables produced from various records provided by Optus for a mobile service number ending 635, being a mobile service registered to an account in the accused’s name (Exhibit P21).[26]
[26] See Exhibit P33 at [10].
The accused gave evidence but tendered no exhibits.
A list of Agreed Facts was tendered as Exhibit P33.
Issues in Dispute
Much of the evidence was not disputed.
There was no real dispute that on Sunday 19 May 2019, the property was damaged by a fire, that the fire started in the upstairs bathroom, and/or that there was a clandestine drug laboratory in that upstairs bathroom, being used to manufacture methylamphetamine.
The Agreed Facts included the nature and weight of the substances forming the basis of counts 3 and 4.
The primary issues in dispute were:
1.Did the accused know that the property was being used to manufacture methylamphetamine and specifically a large commercial quantity of methylamphetamine.
2.Was the accused in joint possession, with Mr Linke, of the GHB found in the plastic container in the courtyard and/or in the Mount Franklin water bottle, and the methylamphetamine found in the drawer in the upstairs bathroom. As to count 2, if the accused was not in joint possession of the GHB found in the plastic tub, did the accused take a ‘step in the process’ of sale of any of those drugs by his actions, in renting the property and/or guarding or concealing the drugs.[27]
3.If the accused manufactured methylamphetamine at the property:
(a)did the process of manufacture being undertaken at the property pose a substantial risk of fire and, therefore, a substantial risk of causing damage to the property; and
(b)did the accused know this and proceed in any event.
[27] At no stage during the trial did the prosecution rely upon this same line of reasoning as an alternative pathway to guilt as to counts 3 and 4.
There was no dispute that in the absence of a verdict of guilty to count 1, the accused could not be found guilty of count 5.
Summary of Prosecution Case
The prosecution case relied, substantially, on a combination of the following evidence:
1.Alleged lies told by the accused to police, namely that he was not at the property, and was at the casino, said to demonstrate his consciousness of guilt; and
2.Circumstantial evidence:
(i)the accused hired the property through AirBNB;
(ii)the accused was identified as being one of the two men inside the property at the time of the fire, who was assisted from the property by Mr Eikmeier and Mr Armfield, and gave evidence admitting he was one of those two men;
(iii)the location of the various items of equipment and chemicals used in the production of methylamphetamine found throughout the property – such that it was inconceivable the accused did not know what was occurring in the upstairs bathroom, even if he never entered that room;
(iv)the accused’s demonstrated interest in methylamphetamine having regard to the results of the blood test taken following his arrest, which were positive for methylamphetamine and his evidence attesting to that interest;
(v)the proximity of the plastic tub containing GHB to the downstairs sitting room, where the accused was at the time of the fire and the fact that numerous plastic and other bottles were found strewn throughout the property; and
(vi)the accused’s phone records which were said to be consistent with the phone being used to receive data and to send and receive SMS messages and voice calls using cell towers located in the vicinity of the property from approximately 12:00am on Sunday 19 May 2019 to 3:42pm that same day.
Defence Case
The defence position was that another person or persons (such as Mr Linke and/or Mr Linke’s friend) took advantage of the opportunity created by the accused’s absence from the property, to transport to the property, and set up at the property, the various constituent parts of the clandestine drug laboratory and then commenced using the laboratory to manufacture methylamphetamine, unbeknownst to the accused.
Further, the accused claimed to have no knowledge whatsoever of any of the methylamphetamine and/or GHB found in (or near) the property. Similarly, the accused’s position was that another person, probably Mr Linke, was in sole possession of those drugs.
It was the defence case that the evidence fell short of demonstrating that the process being undertaken in the upstairs bathroom, or anything being undertaken at the property (let alone being undertaken with the accused’s knowledge and/or participation) posed a substantial risk of fire in any event.
Legal Directions
General
The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything and in particular it is not for the accused to prove that he did not commit the offence or offences as charged. [28]
[28] The accused did not seek to rebut the presumption created by s 32(5) CSA with respect to any of counts 2, 3 or 4.
The accused is presumed by law to be innocent of each charge unless and until the evidence that I accept satisfies me that each and every element of the offence as charged has been proven beyond reasonable doubt.
If, however, the evidence that I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged, then the accused remains innocent and I must return a verdict of not guilty to that charge.
There are five charges on the Information. I must assess these charges separately and only take into account the evidence that is relevant and admissible to the count under consideration.
With respect to each charge, if I am satisfied that there may be a rational explanation consistent with the innocence of the accused or I am unsure where the truth lies then I must find that the charge has not been proven to the standard required by the law and I must find the accused not guilty of that charge.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.
The accused elected to give evidence. He was under no obligation to do so. I must assess his evidence in the same way as I assess that of any other witness. In presenting a case, the accused has not assumed any burden of proof, that burden always remains with the prosecution.[29] I remind myself that even if I reject the accused’s evidence in its entirety, that fact does not bolster, nor strengthen the prosecution case. As to each count, it remains for the prosecution to prove each element of the offence charged beyond reasonable doubt.
[29] Save and except that as required by virtue of the operation of s 32(5) of the Act.
The accused was not obliged to answer the questions directed to him by police in a record of interview, but he chose to do so. The statements or expressions of opinion made by a police officer to the accused during the record of interview are not evidence. Only the answers given by the accused are to be used as evidence in this case, although of course the questions that were asked of the accused may provide a context or assist to explain his answers.
In this case, evidence was heard from a number of experts. The ordinary rule is that a witness may speak only to the facts and not express opinions. An exception to that rule is that persons who are qualified in a particular area may express an opinion. That opinion must be relevant to their particular areas of expertise and that opinion must be based wholly or substantially on their knowledge, training or experience. As I am a sole judge of the facts, I am entitled to accept or reject any opinion evidence as I see fit. Before rejecting that evidence, I must give it consideration, and consider how it fits with any other evidence that I have heard and accepted on that topic.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and not influenced by public opinion in relation to this matter.
Circumstantial Evidence/Inferences
The prosecution case rests substantially upon circumstantial evidence. I cannot return a verdict of guilty on a charge against the accused unless the circumstances exclude any reasonable explanation consistent with his innocence with respect to that charge. Further, I must be satisfied not only that his guilt is a rational inference but that it is the only rational inference I can draw from the circumstances I find proved.
In approaching circumstantial evidence there are two steps. First, I must look at the facts on which the prosecution relies as circumstantial evidence in the case and decide which facts are established by the evidence. I must then consider what inference or inferences I am prepared to draw from those facts. This step requires me to consider the combined strength of all the relevant and established facts.
To properly draw an inference of guilt from the facts, it is not necessary that those facts be proved beyond reasonable doubt. However, insofar as it is necessary for me to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt.
Identification Evidence
Mr Eikmeier gave evidence identifying the accused as one of the two men that he helped drag from the property at the time of the fire.
Although the accused gave evidence that he was, in fact, one of those two men, in the absence of such evidence, identification evidence, such as that given by Mr Eikmeier, should be approached with caution. Honest witnesses can be mistaken in their recollections pertaining to identification and miscarriages of justice have occurred as a result. The ability to form and retain an accurate impression of an offender may be affected by many factors, including the frailty of human observation and memory and a tendency to reconstruct events in the mind over a period of time.
Consciousness of Guilt
During his closing address, the prosecutor relied upon out of court statements made by the accused during his record of interview with police as being lies told out of a consciousness of guilt.
I remind myself that it is rare that lies told after the accused knows he is under suspicion for a relevant crime can be used as probative of a consciousness of guilt, because of the tendency for any person under suspicion to distance themselves from the relevant events.[30]
[30] Harris v The Queen (1990) 55 SASR 321, 323; R v Quist (2017) 127 SASR 471 at [104], [309].
If I find that the accused lied to the police, I may only use that lie or lies as demonstrating evidence of consciousness of guilt if I accept:
·the lie (or lies) was about a material issue; and
·the accused told the lie or lies because he knew that the truth of the matter about which he lied would implicate him in the offence or an element of it; and
·the possibility that the accused told the lie or lies for some other reason, such as out of panic or to escape an unjust accusation, or because of guilt of some other lesser wrongdoing, to protect some other person or to avoid a consequence extraneous to the offence (or offences) is excluded.
An accused person may make an untruthful statement but not be lying, for example, if they are confused or have a mistaken recollection.
There may be many reasons why an accused person may lie, other than out of consciousness of guilt with respect to an offence or offences. If I am satisfied a lie (or lies) was told by the accused, but may have been told for another reason, I cannot use the lie or lies as evidence of guilt.
If I am not satisfied that the accused has told a lie or lies out of a consciousness of guilt, but I am satisfied that he has lied, this is relevant to my assessment of the accused’s credibility. However, I cannot use this as evidence of his guilt and this does not add to the prosecution case. It remains for me to determine, having regard to all of the evidence, whether the evidence, in the case of each count, considered separately, is sufficient to satisfy me beyond reasonable doubt as to the accused’s guilt of that count.
There was evidence that the accused left the property, after the fire. However, the prosecution did not submit that that his actions in doing so amounted to flight, out of a consciousness of guilt. I have not used the evidence to reason in this way.
Discreditable Conduct
The prosecution filed a s 34P notice outlining their intention to adduce discreditable conduct evidence, namely evidence of the accused having committed each count, and to use that evidence in proof of each other count.
If I am satisfied beyond reasonable doubt, that the accused is guilty of any of counts 1-4, I am permitted to use evidence in proof of the proven count or counts, to reason that the accused was in the business of drug dealing, being circumstantial evidence relied upon to prove the accused’s possession and/or connection with the drugs being the subject of the other count(s) and to prove that connection and/or possession was for commercial purposes.
However, it is impermissible for me to reason that because the accused is guilty of a count or counts, he must therefore be guilty of another count or counts. It is impermissible for me to reason that the accused is of bad character and therefore more likely to have committed the offences.
It was an agreed fact that following the accused’s arrest on 20 May 2019, a urine sample was taken from him and analysed at FSSA. The urine was found to contain traces of methylamphetamine and amphetamine.[31]
[31] Exhibit P33 at [13].
Further, the accused gave evidence that he had consumed methylamphetamine in the days immediately prior to the fire and that he had consumed methylamphetamine at the property using a glass pipe. There was evidence a glass pipe was located in the master bedroom of the property. The accused gave evidence that he also occasionally used fantasy.
This evidence is evidence of discreditable conduct.
The evidence as to the accused’s drug use can be used for several permissible purposes. The accused claimed that he spent much of the morning of Sunday 19 May 2019 either asleep or drifting in and out of consciousness, in his car, as a result of having consumed methylamphetamine and of having very little proper sleep the night before. He gave evidence he was confused, not only in the immediate aftermath of the fire, but at the time he presented to police in the early hours of 20 May 2019, again, due to the effects of having consumed methylamphetamine.
The prosecution sought to use the accused’s use of methylamphetamine and fantasy to prove that the accused had an interest in such substances and a propensity to possess such substances in furtherance of that interest. The fact a glass pipe was found in the master bedroom, near the upstairs bathroom, was relied upon by the prosecution as an item of circumstantial evidence to support a finding that the accused had gone upstairs, at the property, and therefore must have known of the existence of the clan lab in the upstairs bathroom, only a short distance away.
If I accept this evidence, it is permissible for me to use the evidence for these purposes. However, I must not use the evidence to reason that because the accused was a user of illicit drugs and therefore prepared to act contrary to the law, that he is a person of bad character and therefore he is more likely to have committed an offence or the offences as charged and/or that he is the type of person who may engage in such offending.
The prosecution led evidence that several traffic infringement notices in the name of the accused were found in the Audi. Again, this is evidence of discreditable conduct. The prosecution relied on the evidence to support a finding that the accused had used the Audi, which, as it was found at (or near) the property, after the fire, supported the prosecution case that the accused was one of the two men who was inside the property at the time of the fire.
I am permitted to use the evidence for this purpose. However, it is impermissible for me to reason that because the accused had, in the past, driven contrary to law, that he is more likely to have committed an offence or the offences as charged and/or that he is the type of person who may engage in such offending.
Prosecution Evidence
The Property
The property is depicted in various photographs[32] and in the recording made of a ‘walk through’ conducted at the property on 20 May 2019.[33]
[32] Exhibit P10.
[33] Exhibit P8.
The property is a semi-detached two storey townhouse at Henley Beach, with dual access – the front of the property faces The Esplanade and a carport at the rear of the property is accessible from Seaview Road.
On the ground floor, there is a sitting room at the rear of the property (the sitting room). A sliding door leads from that room to an open plan kitchen/hallway, and to a further dining/sitting room (the dining room) located at the front of the property, that is, overlooking The Esplanade. There is also a bathroom, toilet and laundry on the ground floor.
A staircase adjacent to the kitchen leads from the ground floor to the first-floor hallway. Off that hallway are three separate bedrooms, with the master bedroom located at the west (front) of the building, with a balcony overlooking the beach. The first floor is serviced by an upstairs bathroom and adjacent separate toilet, both of which are accessed off the hallway.
It was an Agreed Fact that the accused booked the property for rental via an AirBNB account between 17 May 2019 and 22 May 2019.[34]
[34] Exhibit P33 at [1], there were also documents tendered through Officer Singh provided by AirBNB to confirm that this; Exhibit P31.
The property’s property manager, Ms Bosworth gave evidence, which was not challenged. I accept her evidence.
Ms Bosworth explained that on 17 May 2019 she received an alert to notify her that a booking had been made for the property on that day. The booking was for six nights, with a check-in date of Friday 17 May 2019, and a check-out date of Thursday 23 May 2019, at a total cost of $1,069.50.[35]
[35] Exhibit P20 at pp 6-7.
Thereafter, Ms Bosworth communicated with the accused via the AirBNB application. She later took screenshots of those communications. The accused told Ms Bosworth, in those communications: [36]
Hi Lucy I’ll be staying with my girlfriend and my good friend and his girlfriend were here from Melbourne.
[36] Exhibit P20 at p 1.
Ms Bosworth sent the accused details of how to check in to the property and also informed him of the house rule of no parties. The accused replied, ‘Definitely not those days are long gone for me’ and said he would message once he had checked in and everything was okay.[37]
[37] Exhibit P20 at p 2.
Ms Bosworth gave evidence that in addition to communicating with the accused via the app, he rang her prior to him checking in, as he was confused about how to access the property. She said she verbally walked him through in terms of where the place was and how to use the lock box.
Sunday 19 May 2019 – The Fire
The fire at the property first came to the attention of several neighbours during the middle of the afternoon on Sunday 19 May 2019.
Mr Eikmeier was living on the Esplanade several doors down from the property. He heard the sound of an alarm outside and went to investigate. He approached the property from its front (that is, The Esplanade). He saw smoke coming from the eaves. The curtains were drawn, the house was all locked up and he spent some time banging on the front door, trying to alert the occupants.
Mr Armfield lived across the road from the back of the property on the other side of Seaview Road. He had only recently commenced work as a fireman with the SAMFS. He was at home, watching television with his partner, when he saw smoke coming from the eaves of the property. He ran to the front of the property, where he saw Mr Eikmeier knocking on the front door. He told Mr Eikmeier to call the fire brigade.
Mr Armfield and Mr Eikmeier both spent some time trying to gain access to the property and were able to do so via a side laneway. Mr Eikmeier continued towards the back of the property and found that a glass sliding door was open. He entered the property through that door, followed by Mr Armfield. They both described seeing two men, in their underwear, on the couch.[38]
[38] T 93.21; T 101.32; T 103.6.
Mr Eikmeier described this as an L shaped couch, in the back with a coffee table and said the men were lying face down, as if they were either passed out or asleep.[39]
[39] T 93.21-25.
It was apparent to both Mr Eikmeier and Mr Armfield that the smoke was coming from upstairs. They tried to access the upper floor but the smoke was too thick. They then focussed their attention on trying to wake the two men by shaking them and clapping in their faces, to rouse them.[40]
[40] T 94.4-9; T 103.2-4.
As to what happened then, Mr Eikmeier gave the following evidence:[41]
A.We sort of led them - they were pretty groggy so we sort of led them outside to the back to - I was asking 'Is there anyone upstairs, is there anyone upstairs?', that was my main concern, and they eventually said no, there wasn't, so we accepted that and took them outside.
Q.What did you do next.
A.So there was a bit of gathering of stuff, like shoes and things, and one of the guys was gathering a bunch of bottles, like plastic bottles, like drink bottles, which I thought was odd, anyway, there was a lot of gathering stuff and then we sort of tried - I think one of the guys tried to run upstairs and we sort of grabbed him and convinced him not to, dragged him back outside and then we were standing out there waiting for the fire brigade to arrive, I guess.
[41] T 94.11-25.
Mr Armfield said that he asked the men if there was anyone else in the house and they said no.[42] He got the men to open the garage roller door which opened onto Seaview Road. He said by this time he could hear sirens approaching so he went out onto the road to direct emergency personnel to the property.
[42] T 103.12-13.
Mr Eikmeier gave evidence that after taking the two men outside of the property, they stood at the back of the property, in a shared drive area, waiting for emergency services to arrive. He gave the following evidence:[43]
A.So, from memory, the one gentleman said that he had to go and grab - get - move his car, I think, from memory, and he sort of started backing away and I think I told him 'Don't run from this', like, you know, 'You've got to stay'. He said 'Yeah, no worries' and then he left down Seaview and the other guy was still with me and he was getting a bit edgy and I was telling him not to leave. He sort of started walking off the other way down Seaview when the fire engine approached, I called him back and he was good enough to come back.
[43] T 94.38-95.9.
While giving this evidence, Mr Eikmeier gesticulated towards the dock when describing his interactions with that particular man and pointed to the accused. The gesture was spontaneous and Mr Eikmeier’s demeanour was akin to someone having a conversation with a friend about something that had happened to them both in the past and seeking a response from them by way of confirmation that they remembered that happening.
As to that man, Mr Eikmeier was asked if he remembered what he was doing when he was out on the footpath. He gave the following evidence:[44]
A.He left or he started backing up, so we were all out there, he started backing up and I said 'Don't go anywhere', I think I said 'I know the landlords, just stay'. He said 'No, I've just got to move the car' and I couldn't sort of do anything about it and then he turned and left.
Q.Do you remember what he was wearing.
A.No. Look, to be honest, from my statement you know yes, but I think it was tracksuit pants, sneakers, T-shirt or something.
Q.When you say that he left, what do you mean.
A.He walked away.
Q.Where did he walk.
A.So he walked it would be north, I guess, up Seaview Road and then around the corner.
[44] T 98.31-99.7
Mr Eikmeier said the other man went to leave but he told him not to. As police and fireman approached the property, the second man then ran back through the property, towards The Esplanade, and police chased him. He did not see either of the men again.
Mr Eikmeier participated in a procedure a few days after the fire wherein he was asked by police to try to identify the two men that were inside the property at the time of the fire by looking at two separate photo packs. Mr Eikmeier immediately identified the accused in the first photo pack.[45] He also immediately identified Mr Linke.[46]
[45] Exhibits P14 and P15; T 187.2-9.
[46] Exhibits P14 and P16; T 187.10-17.
In his evidence, Mr Eikmeier confirmed, again, that it was the accused who was the first man he had described, that is, the one who left the property before police arrived, not the second man who stayed longer but then ran away and was chased by police.
Mr Armfield said that by the time the police arrived, one of the men who had been inside the property had already left the scene. He did not see him leave. He said the other man ran from the police back through the house and was pursued by the police. He did not see either man again.[47]
[47] T 105.27-106.8.
Mr Armfield also participated in an identification procedure a few days after the fire. He identified Mr Linke but was unable to identify the other man from the photo pack provided.[48]
[48] Exhibits P17-P19; T 186.17-35.
Ms Walker and Ms Shields are cousins who were visiting from Victoria to attend a friend’s 40th birthday party. They were staying in an apartment on The Esplanade, a few doors down from the property.
Ms Shields gave evidence that in the middle of the afternoon on Sunday 19 May 2019, she was in the apartment with her son, on the couch, when she started to smell smoke. She described the smell as intense and toxic and it gave her a headache.
After investigating to make sure the smell was not coming from anything inside the apartment, Ms Shields went outside, and saw smoke coming out of an open window of a unit, two rows over. She walked out to Seaview Road and saw Mr Armfield trying to gain access to the property. A little later she saw her cousin, Ms Walker, walking towards her from the Ramsgate Hotel. She and Ms Walker then both stood there together. She observed a garage roller door open and saw a man stumble out towards them. She described the man in the following terms:[49]
A.Yes. He was Caucasian, maybe about 160 cm tall, he had no shirt on, he was wearing jeans, he was attempting to put a shoe on, he only had one shoe, that was a green shoe with a black Nike tick, he had a bumbag satchel that came over his shoulder. As far as I can remember it was green as well. He also had some scarring and reddish marks around his belly area under there and his eyes were very bloodshot.
Q.So he wasn't wearing a top.
A.He was not wearing a top. He also had short hair.
[49] T 82.20-29.
Ms Shields said the man seemed very dazed and confused and kept saying that he had been asleep.[50] The man then ‘walked off down the road away from Henley Square’.[51] She clarified that he had walked in the direction away from the hotel.[52] As to which direction this was, she said she did not know her north, south, east or west very well.[53] She later said that if she stood out the back of her apartment and faced Seaview Road, she had to look to her right to see the man.[54]
[50] T 82.18; T 82.32-38.
[51] T 83.15-16.
[52] T 85.30-34; T 87.12-13.
[53] T 83.28-29.
[54] T 89.36-90.11.
Ms Shields described her interactions with a second man who had come out from the property who was not wearing any pants. She described the second man as being shorter than the first and a lot stockier in build. He was holding a plastic re-useable shopping bag in his hand, which was overflowing with things stuffed in it and a 2-litre chocolate milk under his arm.[55]
[55] T 84.7-21.
Ms Shields was asked how long after the first man came out, did she see the second man, and she answered:[56]
A.Five minutes, maybe. We had a cigarette, we stood there and had a cigarette and we hadn't finished that and the other gentleman started coming towards us.
[56] T 84.2-4.
In cross-examination, she said the second man came out about three to five minutes after the first.[57]
[57] T 86.12-13.
Ms Shields said they had a discussion with the second man about the fact he could not find his pants and they told him to go and stand behind their letterbox to try to look for them. She said he asked if they had seen his friend. She said she took a step back, looked down the road, and saw the first man casually walking down the road.[58] In cross-examination, she estimated the first man was about 100 metres away, and that he had not yet made it to the next street.[59]
[58] T 83.35-37; T 84.32-37.
[59] T 87.36-37.
In cross-examination, Ms Shields agreed that in her statement to police, she had said that she ‘took a step back and looked down the road and saw the first male walking in a southerly direction down Seaview Road’.[60] She disagreed with a proposition that this man had, at first, headed off in a northerly direction, and then turned around and came back in a southerly direction. She said:[61]
A.No. When he walked - when we walked away from him, he was going in that same direction, away from Henley Square, there was no deviation of direction that I saw.
[60] T 89.9-13.
[61] T 88.12-14.
She said the second man started to walk off to meet up with his friend but was called back by a firefighter. She went back to her apartment and recalled hearing a lot of noise associated with emergency personnel on site at the property and some commotion on the beach.
Ms Walker gave evidence that during the afternoon on Sunday 19 May 2019 she had been at the Ramsgate Hotel but decided to go back to the apartment where she was staying to check in on her cousin, Ms Shields, and to get a jumper. As she approached the apartment, she saw Ms Shields standing in the driveway, at the back of the apartment on Seaview Road. She saw smoke coming out of a top floor window from the house next door.[62]
[62] T 74.31-75.1.
She said they tried to get into the back gate of the property but it was locked. As to what happened next, she gave the following evidence:[63]
[63] T 75.17-76.5.
A.Whilst we were standing there there was a fellow that came out and he came out, he had one runner on, a pair of black jeans, he had like a satchel bag across his shoulder, no T-shirt on, he looked a bit dazed and I'd spoken to him and said 'Mate, time's tough, couldn't you find your other shoe before you took off?' and he was like 'Oh yeah, ha ha', laughed, whatever else.
Q.Did he say anything else.
A.We were asking if there were other people in there. He sort of wasn't really answering. It was kind of weird because he was like 'I'm going to go and check around the front and see if my mate came out there' and he walked off then up the street, but he never turned down the street to go around the front either, he kept walking straight up.
Q.What was your observation about his demeanour.
A.He was - look, he was okay, it was like he was dazed or, yeah, he was just 'Oh, yeah'. I can't explain it. He was friendly enough though, like he spoke - yeah.
Q.How old do you think he was.
A.I would have said in his thirties.
Q.Can you describe his build.
A.Slim build, slim to medium build he would be, skinny fellow.
Q.How tall do you think he was.
A.He would probably be about 180 cm, maybe.
Ms Walker said she did not see that man again.[64] She recalled that he had walked off to the left, if you were standing and looking at the house from the back on Seaview Road, that is, in the opposite direction from where she had been at the pub.[65]
[64] T 76.34-35.
[65] T 77.4-10.
When asked to further describe that man, she said he was not wearing anything on his top. She described seeing ‘weird looking markings on his stomach and his abdomen area’.[66] She explained she was a nurse and to her, these marks looked like track marks, where people injected insulin.
[66] T 76.28-29.
Ms Walker gave evidence that another minute or two later, a second man had come out from the property ‘in his undies’, carrying a plastic shopping bag.[67] She described the second man as being a bigger man, of larger build with dark, black hair. She said once the police arrived, the second man ran back into the house, and she did not see him again after that.[68]
[67] T 77.12-21.
[68] T 78.11-13.
Emergency Services on Site – 19 May 2019
Police and SAMFS personnel attended at the property on 19 May 2019 in response to the fire.
There was no real dispute that police who attended at the property on 19 May 2019 in response to the fire discovered a clandestine drug laboratory (clan lab) in the upstairs bathroom. I am satisfied beyond reasonable doubt that they did.
Officer Blandford gave evidence that he was one of the police officers who attended at the property on the day of the fire. He gave evidence that other police officers also attended and conducted what he described as a ‘loosely detailed investigation’ of the scene, but that he was not involved in that investigation.[69]
[69] T 136.38-137.5.
Officer Porter also attended the property during the afternoon of 19 May 2019. While there, his attention was directed towards an area at the front of the property, in a public carpark adjacent to the beach. In that location he found a 600 ml water bottle, containing a thick liquid. He took photographs of the bottle in situ.[70] It was an agreed fact that this bottle was located in that area, seized and its liquid contents analysed by FSSA and found to contain a mixture of GHB and water weighing 320 g.[71] Mr Painter also gave evidence confirming the results of that analysis.[72]
[70] T 152.19-153.13; Exhibit P26.
[71] Exhibit P33 at [3]. This is the subject of Count 4.
[72] T 65.1-23.
Photographs were taken at the property on 19 May 2019 by a member of the police assessing crew.[73] Those photographs were tendered, without objection, through Officer Schollar, who first attended at the property the next day, 20 May 2019. In addition, a disc containing recordings of two ‘walk throughs’ conducted at the property on 19 May 2019 and 20 May 2019 was also tendered through Officer Schollar, without objection.[74]
[73] Exhibit P2.
[74] Exhibit P8.
The photographs taken on 19 May 2019 and the recording of the walk through conducted that day, depict not only the clan lab, and its various constituent parts in the upstairs bathroom but other items of interest found at the property. A white Toyota RAV 4 with QLD registration 168-YBF was parked in the carport and a silver Audi sedan SA registration XX784K (the Audi) was outside the property. It was an agreed fact that the Audi was commonly used by the accused but registered in the name of a Melissa Tabe.[75]
[75] Exhibit P33 at [12].
The upstairs bathroom of the property was badly damaged by fire.[76]
[76] Exhibit P2 at p 1.
The prosecution called evidence from a firefighter, Mr Hogben, who gave unchallenged evidence as to his role and observations. His evidence was the only evidence as to the cause of the fire. I accept that evidence.
Mr Hogben gave evidence that on the day of the fire, he had the role of station officer and was in charge of an appliance and crew that responded to the emergency tasking to attend the property. Mr Hogben’s truck approached the property from The Esplanade, while two other appliances approached it from the rear, on Seaview Road. He observed a small amount of smoke coming from the apex of the roof of the property.[77]
[77] T 165.4-166.8.
After other firefighters had extinguished the fire and it was safe, he entered the house to look for evidence to determine where the fire had started. Having done so, he determined the fire had started in the upstairs bathroom.
Mr Hogben was shown photographs taken by police at the property on 19 May 2019, including the photographs depicting a room containing a number of glass receptacles, including one sitting on top of what appears to be a gas burner, the latter heavily damaged by fire.[78] He agreed that the bathroom was ‘in roughly that state’ when he entered the house.[79] He did not examine the burner, nor was he aware of anyone else having done so.[80]
[78] Exhibit P4 at pp 2-4.
[79] T 167.11-15.
[80] T 167.22-24; T 167.35-168.2.
As to whether he was able to determine what had caused the fire, Mr Hogben gave the following evidence:[81]
A.By the process of elimination really but we could see where the fire was greatest and with the gas cylinder and the burner and the greatest damage caused by fire was around that area. There was no other obvious causes such as an electrical appliance.
Q.Is the best estimate, if I can put it in those terms, was that the fire probably started around there.
A.Yes.
[81] T 167.27-34.
Mr Hogben said there was no suggestion the fire could have occurred in any other manner.[82] He agreed with a proposition that it had ‘probably emerged from around the burner area, but it’s not really possible to determine how the fire has then spread and caused the damage.’[83]
[82] T 168.3-5.
[83] T 168.6-10.
Police Investigation on Site – 20 May 2019
Office Schollar gave evidence that as a clandestine drug laboratory (clan lab) had been discovered at the property, in accordance with nationally adopted procedures, it was necessary for a specialist processing team to be tasked with the investigation and processing of exhibits pertaining to that crime scene. He was part of that specialist processing team, which attended at the property the next day, Monday 20 May 2019.[84]
[84] T 14.29-15.14.
Officer Schollar performed the role of Exhibits Officer that day. He was accompanied by other suitably qualified police officers and a forensic scientist, Mr Pigou. Their focus was on investigating the clan lab and clan lab related equipment.[85]
[85] T 15.15-24.
Officer Schollar was asked if there were specific protocols relating to the handling and cataloguing of exhibits for clan labs. He gave the following evidence:[86]
A.There is. Fundamental exhibit management practices still apply and that goes through all of police, but what we're looking for is a processing member to work with the forensic chemist, they will be in the hot zone, or the lab itself, they will identify items worthy of being catalogued. That item will be brought out to a central location, a table is set up there to, I suppose, place the item on, the item will be described to me as exhibits officer, I will record that information, the item will be photographed under my direction. Other work will be done, in company with the forensic scientist, before which point it's then moved aside and then, if it needs to be dealt with by Crime Scene for fingerprinting purposes or if it needs other examinations, then that will be done later on.
[86] T 16.24-38.
Office Schollar gave evidence describing what items of interest, specifically related to the clan lab, were located at the property, and what then became of those items. Some items were sent to FSSA for further examination. If contaminated, the item would be destroyed on site. Others were handed to detectives or the investigating officer.[87] He produced a document entitled ‘Exhibit Log Site Details’ which summarised precisely what items were found and where, and what had become of them.[88]
[87] T 18.12-30.
[88] Exhibit P1, noting the initials PP and DH relate to Mr Pigou and Officer D Henning who were the team members in ‘the ‘hot zone’ identifying items of interest.
Three photo booklets containing photographs taken by police, at the property, on both 19 and 20 May 2019 and tables prepared listing the contents of those photo booklets, were tendered, without objection, through Officer Schollar.[89]
[89] Exhibits P2–P7.
The upstairs bathroom and its contents are depicted in the series of photographs tendered as Exhibit P4. Numerous items of equipment were found in that room, including:
·a 100 ml glass splash head (EHB-016).[90]
·a 2-litre plastic container containing a dual layered liquid (EHB-017).[91]
·a triple necked round bottom reaction vessel (EHB-020), sitting on top of a dual ringed gas burner with a brass connection (EHB-022).[92]
·A charred 8.59 kg grey gas bottle on the floor (EHB-011).[93]
·A glass condenser (attached to a distillation head) with tubing attached to both ends (EHB-019).[94]
·A retort stand with two boss heads and clamp (EHB-021).[95]
·A 1-litre graduated measuring jug containing approximately 300 ml of clear liquid and a crystalline substance (EHB-023).[96]
[90] Exhibit P4 at photograph 009; Exhibit P6 at photograph 032.
[91] Exhibit P4 at photograph 006; Exhibit P6 at photograph 033.
[92] Exhibit P2 at photograph 022; Exhibit P6 at photographs 038, 039 and 044.
[93] Exhibit P2 at photograph 019; Exhibit P6 at photograph 022.
[94] Exhibit P2 at photograph 021; Exhibit P6 at photograph 037.
[95] Exhibit P6 at photographs 042 and 043.
[96] Exhibit P6 at photographs 045 and 046.
Items of interest relating to the clan lab found on the ground floor of the property included:[97]
·A black bin containing a large plastic bag labelled ‘caustic soda pearls 99% 25 kg’, two thirds full of white prill.[98] This bin was found on the ground level of the property, in the centre of the hallway at the base of the staircase.
·A Woolworths shopping bag containing rubbish stained with iodine and loose iodine prill, found inside a wheelie bin on the Seaview Road side of the property (EHB-001).[99]
·A yellow canister labelled ‘Trade Flame Ultra Gas 400 g’ with a blowtorch attachment, found on the couch, in the sitting room (EHB-005).[100]
·A 4 kg tin containing Benzyl Alcohol 4 kg containing approximately 10 ml of clear liquid, found on a shelf on the left-hand side of the television cabinet in the sitting room (EHB-008).[101]
·A 60 ml plastic syringe containing approximately 4 ml of clear fluid, found on the couch in the sitting room (EHB-006).[102]
·A 90 cm threaded metal rod with a metal clamp, found on the bottom landing of the staircase (EHB-012).[103]
·A blue jug with white residue, found on the kitchen bench (EHB-013).[104]
[97] Not all items are listed – I refer to Exhibit P1 for its full terms and effect.
[98] Exhibit P2 at photograph 14; Exhibit P6 at photographs 004-008.
[99] Exhibit P6 at photographs 001-003.
[100] Exhibit P2 at photograph 012; Exhibit P6 at photograph 013.
[101] Exhibit P2 at photograph 011; Exhibit P6 at photographs 017 and 018.
[102] Exhibit P6 at photograph 014.
[103] Exhibit P6 at photographs 023 and 024.
[104] Exhibit P2 at photograph 015; Exhibit P6 at photograph 025.
Items of interest relating to the clan lab found on the first floor of the property, but not in the upstairs bathroom, included:
·A large glass condenser with 10 cm tubing connected to each end of water jacket, one end partially disconnected, found in a large blue foam box on the floor of bedroom 2 (EHB-014).[105]
·A ‘Dean and Starke’ apparatus, found in the same blue foam box (EHB-015).[106]
[105] Exhibit P2 at photographs 017 and 018; Exhibit P6 at photographs 026-031.
[106] Exhibit P6 at photograph 034.
Officer White was the crime scene examiner. He attended at the property as part of the specialist team on 20 May 2019. During his attendance, he took a series of photographs of the property, tendered as Exhibit P10. Those photographs depict the property generally, but not the clan lab, as it had already been dismantled when Officer White took photographs in the upstairs bathroom.
Officer Porter also attended at the property on 20 May 2019 and performed the role of exhibits officer. He went through the house, with another officer, Detective Leaker and seized items of interest after they were photographed. He created an Exhibits Spreadsheet listing those items and the various numbers they were given in the Police Property Management System (PPMS).[107] Included in that Exhibit List are the following other items of interest located and seized from the property:
·a 90-litre clear plastic storage tub with a lid, containing a layer of white paste, approximately 2 cm thick, found on a table, in the back yard of the property, between the rear of the house and the carport, adjacent to the carport (EHB-003).[108] Officer Schollar gave evidence that at some stage the tub was moved into the sitting room, being where it is depicted in the recording of the walk through conducted on 20 May 2019.[109] The entire exhibit was submitted to the FSSA for analysis.[110]
·A plastic press seal bag containing a large amount of a crystalline substance, found in the top drawer of the vanity in the upstairs bathroom (PPMS Item 49).[111] It was an Agreed Fact that this crystalline substance weighed 18.5 g and contained 14.7 g of pure methylamphetamine.[112]
·A plastic press seal bag containing a small amount of a crystalline substance, found in the top drawer of the vanity in the upstairs bathroom (PPMS Item 50).[113] It was an Agreed Fact that this crystalline substance contained methylamphetamine and weighed 1.94 g.[114]
·A Nikon digital camera (PPMS number 19/B58781-46) found in the top drawer of a chest of a vanity table opposite the bed in the master bedroom of the property (on the first floor).[115] Officer Porter removed the SD card from that camera and its contents were copied and downloaded onto a disc.[116] The disc was played during the trial. I am satisfied beyond reasonable doubt that it contains photographs and video footage depicting the accused and the Audi taken at locations other than at the property.
·A set of black scales (PPMS Item 43) found on a shelf in the sitting room.[117]
·A small tub of crystalline substance found on a wall unit/shelf in the sitting room (PPMS Item 42).[118]
·A plastic press seal bag containing a crystalline substance found in a sunglass case on the bed in the master bedroom (PPMS Item 45).[119]
[107] Exhibit P27.
[108] Exhibit P2 at photographs 009 and 010; Exhibit P6 at photographs 009 and 010. This is the subject of count 2.
[109] T 29.15-19.
[110] T 23.16-17.
[111] T 156.11-34; Exhibit P28 at photographs 0147-0149.
[112] Exhibit P33 at [4]; see also Exhibit P13. These drugs comprise part of those the subject of count 3.
[113] T 156.11-34; Exhibit P28 at photographs 0147-0149.
[114] Exhibit P33 at [5]; see also Exhibit P13. These drugs comprise part of those the subject of count 3.
[115] Exhibit P2 at photograph 025; Exhibit P10 at p 17.
[116] T 161.11-32; Exhibit P30.
[117] Exhibit P28 at photographs 0136, 0137 and 0156.
[118] Exhibit P27 at p 2.
[119] Exhibit P27 at p 3.
Officer Porter gave evidence that he searched both the Audi and the Toyota RAV 4. In the Audi, he found two bankcards bearing the name of the accused (PPMS Item 77)[120] and two infringement notices in the name of the accused, bearing an address of 485 Grange Road, Seaton, SA 5023.[121] Officer Porter gave evidence that the Audi was ultimately released to a female, Kim Nguyen.[122]
[120] T 157.2-16; Exhibit P29 at photograph 0189.
[121] T 157.17-22; Exhibit P29 at photographs 0190, 0191 and 0192.
[122] T 164.11-18.
In the Toyota RAV 4, police found a 600 ml Gatorade bottle and a set of large cream digital scales in a grey sports bag on the rear seats,[123] and some items of men’s clothing in the boot.[124]
[123] Exhibit P27 at pp 8-9; PPMS Item 75 and PPMS Item 76.
[124] Exhibit P27 at p 8.
The Clan Lab
A forensic scientist, Mr Pigou, was present at the property on Monday 20 May 2019 to assist the specialist police team to process and investigate the crime scene.[125] Mr Pigou’s role included the collection and receipt of evidence from the property, for the purposes of forensic analysis and the undertaking of aspects of that analysis.
[125] T 16.2-4.
Mr Pigou has subsequently retired and was not called to give evidence.[126]
[126] T 50.4.
The prosecution called evidence from Mr Painter, the team leader of the illicit drugs and clandestine laboratory groups within FSSA, who took over the case from Mr Pigou. He gave evidence as to the various steps in the manufacture of methylamphetamine via the extraction process and his observations of what was being undertaken in the upstairs bathroom of the property prior to the fire, by reference to that process and the various equipment, chemicals and drugs found at the property. I am satisfied Mr Painter holds the appropriate expertise to give expert evidence on this subject matter. I accept his evidence.
The prosecution tendered, through Mr Painter, an aid to understanding a common method by which methylamphetamine is manufactured, involving pseudoephedrine.[127]
[127] Exhibit P11.
Mr Painter explained that manufacturing process, which involves the reaction of pseudoephedrine with other chemicals, typically hypo phosphorous acid and iodine, to produce methylamphetamine.
There are three steps associated with that process; the first step involves the extraction of pseudoephedrine from a pharmaceutical preparation, the second step is the conversion of the pseudoephedrine to methylamphetamine using hypo phosphorous acid and iodine (re-agents) and the third step is the purification of the product, that is, separating the methylamphetamine from all other material produced in the earlier step(s).[128]
[128] T 43.23-37.
The conversion stage of the process is depicted visually on page 3 of Exhibit P11. A reaction vessel and condenser are required for this step, together with some equipment to assemble and hold those pieces of equipment together and some containers to hold the various chemicals.[129] The pseudoephedrine and the two re-agents are placed in the reaction vessel. A condenser is then fitted to that reaction vessel, in a vertical position. The condenser is essentially a long tube with a water casing around it. Once the equipment is set up, heat is applied to the reaction vessel. The mixture of the pseudoephedrine and the two re-agents then boils, creating gases, which are converted back to liquid drops as they enter the condenser. Those droplets drop back into the reaction vessel, and as the mixture is heated over time this process converts the mixture to methylamphetamine.[130]
[129] T 45.23-29.
[130] T 44.11-29.
Mr Painter gave evidence that he had recreated this process in the laboratory, with a view to producing 5-10 g of methylamphetamine. He estimated that it took between an hour to an hour and a half to assemble the equipment, add the re-agents and perform the reaction. The time taken would differ depending on the amount of pseudoephedrine used.[131]
[131] T 44.31-45.3.
At the end of the second step, the mixture will contain methylamphetamine, but not in a (safe) consumable form, as it will include other substances such as salts, water and harmful acids.[132] The third step involves isolating the methylamphetamine from those other substances. One way to do this is via distillation, as depicted visually on page 4 of Exhibit P11.
[132] T 45.34-46.5.
Mr Painter gave evidence that this step involves the addition of other chemicals to the mixture, to change what is an acidic mixture into an alkaline mixture, to convert the methylamphetamine into its pure, oil form. This is typically achieved by adding caustic soda or a mixture of caustic soda and water, with the pH levels being monitored to determine how much caustic soda is required.[133]
[133] T 46.20-35.
The glassware used in step two can be reconfigured and used in this third step. Instead of being in the vertical position, the condenser is connected to the reaction vessel in a slightly less than horizontal position, then connected to other glassware. The alkaline mixture in the reaction vessel is heated vigorously and/or steam added from a source such as a pressure cooker. This produces gases, which convert to droplets in the condenser, but instead of dropping back into the reaction vessel, these droplets are then collected at the end of the condenser in another vessel, producing a mixture of methylamphetamine oil and water.[134] The oil and water are then separated either using a separatory funnel or by simply pouring off the oil from the top of the water.[135]
[134] T 47.13-48.11.
[135] T 48.23-35.
Mr Painter explained that methylamphetamine is typically sold in solid or salt form. To convert the methylamphetamine oil to salt, hydrochloric acid is then added, and the mixture is heated.[136]
[136] T 49.1-6.
Mr Painter gave evidence, ultimately without objection, that Mr Pigou sampled and swabbed a number of items located at the property. Mr Painter had access to the samples taken, Mr Pigou’s notes, the Exhibit Log, photographs taken at the property and various results of analysis. From that material he produced a schedule, reproduced and tendered as Exhibit P12, which lists those items found at the property and his opinion as to their use in the process of manufacturing methylamphetamine.
Those items of equipment found which are typically used in the second and third step of the manufacturing process include a gas cylinder with burner attachment,[137] an LPG gas cylinder,[138] a metal rod fitted with a metal clamp,[139] a large glass condenser, fitted with a plastic tubing,[140] a 20-litre triple neck glass reaction vessel fitted with glass stoppers and a glass distillation head,[141] a retort stand and stand clamps,[142] and a dual ring gas burner.[143]
[137] EHB-005.
[138] EHB-011.
[139] EHB-012.
[140] EHB-014.
[141] EHB-020.
[142] EHB-021.
[143] EHB-022.
The glass condenser (EHB-014) was found to contain traces of methylamphetamine, pseudoephedrine, ephedrine, triprolidine and methylamphetamine manufacturing by-products.
The 20-litre glass reaction vessel contained approximately 3.88-litres of a dual layered liquid, found to contain approximately 830 g of methylamphetamine and methylamphetamine manufacturing by-products.[144] Mr Painter expressed the opinion that this was consistent with the vessel being used to heat the reaction mixture with caustic soda added, with that liquid representing that which remained to be distilled as part of the third step of the manufacturing process.[145]
[144] T 58.20-35; T 69.13-70.1; Exhibit P12.
[145] T 58.36-59.6.
A plastic bag containing iodine-stained rubbish and iodine prill, being a chemical used in the second step, was found inside a wheelie bin at the property.[146]
[146] EHB-001, Exhibits P1 and P12.
There was approximately 15 kg of caustic soda in a plastic bag labelled ‘caustic soda 25 kgs’, being a chemical used in the third step, found in the hallway on the ground floor of the property.[147]
[147] EHB-002, Exhibits P1 and P12.
The phone records demonstrate, and I find, that the accused received a phone call, which he answered, at 1:52pm on Sunday 19 May 2019. The call lasted for two minutes. If considered in isolation, this could potentially be consistent with the accused’s evidence that he was still in his car, having been away from the property all night, and was woken by a call from his mother, albeit he thought that call was at about 1:00pm.
However, the accused’s phone records also demonstrate, and I find, that the accused made two voice calls at 9:49am and 1:16pm on Sunday 19 May 2019, albeit both very short calls, during the time he claimed to be asleep and/or lapsing in and out of consciousness in his car.
Perhaps more importantly, the accused’s phone records demonstrate, and I find, that that he received and answered:
·a voice call at 1:21pm on Sunday 19 May 2019 of 42 seconds in duration.
·a voice call at 1:34pm on Sunday 19 May 2019 of 1 minute and 30 seconds duration.
·a voice call at 1:36pm on Sunday 19 May 2019 of 29 seconds in duration.
Further, Mr Eikmeier, Ms Shields and Ms Walker all gave evidence that the man fitting the accused’s description was not wearing a top. The accused gave evidence that when he fell asleep on the couch, he was wearing trackpants and that he did not think he was wearing a top.
On the accused’s version of events, he had come from the Casino, dropped off a friend, then gone straight from the car to the downstairs couch. If, in fact, the accused had been at the Casino, he would have been required to wear a shirt. While it is possible the accused removed his shirt before falling asleep, it is most unusual that he did so while downstairs, simply chatting to Mr Linke, particularly given it was mid-May. The clothing as worn by the accused at the time of the fire is seemingly inconsistent with him having come from the Casino, and consistent with him having spent a night in. If he did change clothes after returning home from the casino, one would expect the accused’s clothes to have been in the master bedroom, meaning he would have had to have gone upstairs to do so.
The phone records demonstrate and I find that the accused received a phone call, which he answered, at 1:52pm on Sunday 19 May 2019. The call lasted for two minutes. If considered in isolation, this could potentially be consistent with the accused’s claim that he was still in his car, having been away from the property all night, and being woken by a call from his mother, which he thought was around 1:00pm.
I reject the accused’s evidence that he was in his car and lapsing in and out of sleep from 9:00am to 1:00pm on Sunday 19 May 2019.
The accused gave evidence that he was consuming drugs at the property using an ice pipe. A glass pipe was found by police in a sunglasses case, on the bed in the master bedroom, immediately next to a plastic bag found to contain methylamphetamine (PPMS Item 45).[307] The accused gave evidence that he had a meth pipe upstairs but when asked if he had any other implements downstairs, he said no. When asked if he took that pipe downstairs at all, his response was ‘No, I never went upstairs to get it, never had a chance’.[308] On the accused’s version, he was falling asleep and passing out on the Sunday morning due to a combination of taking drugs, and not having slept properly.
[307] Exhibit P10 at p 16.
[308] T 211.25-26.
While it is possible the accused consumed other drugs between leaving the property on the Saturday night,[309] being the last time he claimed to have been upstairs in the apartment before the fire, the fact the glass pipe and a quantity of methylamphetamine were found on the bed in the room the accused acknowledged was his, and this was the only implement the accused had at the property to consume drugs, is seemingly inconsistent with his claim he had not been upstairs at all since the Saturday evening.
[309] Or consumed no drugs at all, albeit seemingly inconsistent with the overall effect of his evidence.
As to the record of interview, the accused told the police:[310]
I wasn’t even there, I haven’t, I was, I can prove I can show you evidence that I wasn’t there the whole time.
[310] MFI P24, p 2 lines 10-11.
As previously stated, I am satisfied beyond reasonable doubt that the accused was one of the men dragged from the property at the time of the fire. He admitted this in his evidence, but in any event, the evidence of the civilian witness establishes this beyond reasonable doubt. The accused gave evidence that he was at the property during other stages of the weekend and that some of his belongings were at the property, in the master bedroom.
I am therefore satisfied the accused lied to the police. He was at the property, both at the time of the fire and at other stages over the weekend, even on his own evidence.
Insofar as the accused told the police, ‘I was at the Casino’, the inference from what and how he said this is that he intended to convey the impression that he was at the Casino at the time of the fire. Insofar as this is what he intended to convey; this was also a lie.
The accused gave evidence that at the time he attended the police station, he knew the fire was linked with a drug lab found at the property, as he had seen that on the news. The accused knew he would have been a person of interest to police because he had rented the property in his name. It is common for people who know they are suspects to lie in order to distance themselves from events. I accept the accused may have lied to police out of panic or because of some confused state associated with his drug taking over the weekend. As such, I have not used the fact the accused lied to the police as evidence of consciousness of guilt.
However, the fact the accused lied to the police is relevant to my assessment of the accused’s credibility.
Having carefully considered the accused’s evidence, I consider he was simply not telling the truth in many aspects of his evidence and specifically with respect to why he hired the property, his movements during the early hours of Sunday 19 May 2019 and his denial of having any knowledge the property was being used to manufacture methylamphetamine.
In this respect, I remind myself that the accused bears no onus, and having discounted the accused’s evidence, it remains for the prosecution to satisfy me beyond reasonable doubt, as to each count, considered separately, as to the accused’s guilt and to exclude, as not being a reasonable possibility, his innocence.
Findings – Elements of the Offences
The prosecution case, as to each count, is a case based on circumstantial evidence and, as such, is dependent upon the combined strength of the facts I find proved to my satisfaction. I remind myself that I must only draw inferences which can be properly deduced from the evidence, rather than making guesses or engaging in speculation.
In order to find the accused guilty of a count, I must be satisfied that his guilt is the only reasonable or rational inference from the proven circumstances.
Count 1
I am satisfied beyond reasonable doubt that methylamphetamine is a controlled drug and that the accused knew this, having regard to his acknowledged use of that drug.
I am satisfied, and find beyond reasonable doubt, that on 19 May 2019 the property was being used for the purposes of manufacturing a large commercial quantity of methylamphetamine, and had, in fact produced a large commercial quantity of this drug, namely approximately 1,225 g of pure methylamphetamine. This comprised the 830 g of methylamphetamine found in the reaction vessel (EHB-020) and the 395 g of methylamphetamine found in the plastic container (EHB-017).
By virtue of s 33(4)(a) CSA, it is therefore presumed, in the absence of there being any proof to the contrary, that the person (or persons) who manufactured the methylamphetamine at the property had the relevant intention, or belief, concerning the sale of the drug, necessary to constitute the offence. I am satisfied beyond reasonable doubt that the accused was one of those persons.
I find beyond reasonable doubt that:
·the accused knew that methylamphetamine was being produced at the property;
·the accused rented the property knowing that the property was to be used for that purpose, and
·the accused guarded or concealed equipment, substances or materials used in the said manufacture, by virtue of his presence inside the property, noting the property was only able to be accessed by way of the unlocked sliding door at the rear of the property, via a side laneway from the front of the property, and that such door was immediately adjacent to where the accused and Mr Linke were sitting.[311]
[311] Having regard to, and accepting, the evidence given by Mr Eikmeier and Mr Armfield as to the difficulties they encountered accessing the property, as referred to earlier in these Reasons.
I am therefore satisfied beyond reasonable doubt that the accused took part in the process of manufacture of the methylamphetamine at the property.
I am satisfied that this is the only reasonable inference from the following facts which I find proved:
1.The accused hired the property, on the same day he intended to check-in to the property, for a six-day period.
2.The accused was one of the two men dragged from the property by Mr Eikmeier and Mr Armfield, in a partial state of undress, at the time of the fire.
3.At the time of the fire, there was a clan lab set up in the upstairs bathroom being used to undertake the third step, the distillation step, in the manufacture of methylamphetamine.
4.The accused’s personal belongings, including his camera and ice pipe, were found in the master bedroom of the property, upstairs, a short distance away from the upstairs bathroom.
5.There was a large blue foam box found in another upstairs bedroom, containing various items of equipment used in the process of manufacturing methylamphetamine.
6.A large black bucket containing 15 kg of caustic soda was found in the hallway, adjacent to the staircase, opposite the kitchen, in plain sight of anyone who entered the kitchen, and/or used the staircase.
7.At the time of the fire, there were multiple empty drink cans, unwashed glasses, food scraps and packaging in the kitchen and sitting room, consistent with the property being ‘lived in’, and by more than one person.
8.The accused’s phone records were consistent with the accused being at, or about the location of the property, from 12.00am to the time of the fire on Sunday 19 May 2019.
9.The accused’s phone records demonstrated he was awake and receiving multiple phone calls between 1:21pm and 1:52pm on Sunday 19 May 2019.
10.The accused was himself a user of methylamphetamine, such that he had an interest in the drug. On his own evidence, he knew Mr Linke to be a person who engaged in the sale of drugs and specifically methylamphetamine.
I am mindful that considered individually, the facts I have found proved may be capable of innocent explanation, however, collectively, I am satisfied beyond reasonable doubt that there is no reasonable inference from the combination of those facts, other than that the accused intentionally manufactured a controlled drug, namely methylamphetamine, in a large commercial quantity, and with the intention of selling at least some of it.
I am not satisfied that there is any reasonable possibility that the accused is simply the innocent victim of a series of unfortunate circumstances. I am not satisfied that there is any reasonable possibility that Mr Linke, and/or others, were responsible for transporting to the property the relevant equipment and chemicals required for the manufacturing process, for bringing those items into the property and for setting up the lab and attending to the various tasks required in the lab, without the accused’s knowledge, when he was (fortuitously) away from the property, and in circumstances where the accused never, initially, intended or himself invited, Mr Linke stay at the property.
I have carefully considered the fact that neither the accused’s DNA nor fingerprints were found on any items of interest, and, for example, there was a set of cream digital scales found in the RAV 4, with which the accused had no connection.
However, only a limited number of items were swabbed for the presence of fingerprints and/or DNA, and of those analysed for DNA, many produced no, or insufficient, DNA to enable analysis. For example, the camera, found in the master bedroom, which the accused acknowledged was his, and, therefore, one would expect to contain traces of his DNA, was swabbed for the presence of DNA, but was unable to be analysed. None of the items of equipment found in the upstairs bathroom were swabbed for DNA, presumably because of the impact of the fire.
As such, the lack of fingerprint or DNA evidence linking the accused to the clan lab does not cause me to have a reasonable doubt as to his guilt. The fact that Mr Smith’s fingerprints and DNA were found on the plastic tub (EHB-003) is simply consistent with Mr Smith, at some stage, previously handling that plastic tub.
Similarly, I accept that the task of assembling the various items of equipment for the purposes of the distillation stage in the manufacturing process is relatively simple (for someone who knows what they are doing) and can be done in a short period of time. I am mindful that there is no evidence before the court as to how long the clan lab had been operating, or how long it would have taken for the 395 g of methylamphetamine, found in EHB-017, to have been distilled from the reaction mixture.
However, I consider it simply implausible and not reasonably possible, having regard to all of the evidence, that the accused did not know about the fact the clan lab was in the upstairs bathroom and being used to produce methylamphetamine.
I reject the accused’s evidence as to his movements during the morning of Sunday 19 May 2019.
I am satisfied that the accused was not asleep in his car, lapsing in and out of consciousness between approximately 9:00am and 1:00pm on Sunday 19 May 2019. Rather I am satisfied, from all the evidence, that he was inside the property, with Mr Linke, fully aware of the fact the clan lab was in the upstairs bathroom being used to manufacture methylamphetamine.
The accused was found collapsed on the couch by Mr Eikmeier and Mr Armfield. This is readily explainable, having regard not only to the accused’s phone records, which demonstrate that he was awake and using his phone to send (and receive) multiple SMS messages, all of which were transmitted (and received) using cell towers located in the proximity of the property, between 12:00am and 5:42am on Sunday 19 May 2019 and the fact that there was a fire producing smoke and fumes in the upstairs of the property.
The accused was dazed and confused when observed by Ms Walker and Ms Shields immediately after the fire was detected. This is understandable given he had just been dragged from a fire, having previously been passed out on the couch in the sitting room, from a property he had hired, in his name, where he knew there was a working clan lab, in the process of distilling methylamphetamine.
I find the accused guilty of count 1.
Count 2
I accept the evidence of Officers Schollar and Porter that a plastic tub containing a layer of white paste, approximately 2 cm thick, was found on a table, in the area between the carport and the apartment (EHB-003).
I am satisfied beyond reasonable doubt that the contents of that tub were analysed by FSSA and found to contain a product weighing 6.39 kg, being a mixture of GHB and water. I accept Mr Painter’s evidence that when dry that material weighed 4.46 kg. I am satisfied that this is a large commercial quantity of GHB within the meaning of the CSA.
GHB (or fantasy) is a controlled drug. The accused admitted that he occasionally used fantasy and therefore I am satisfied the accused knew GHB was a controlled drug.
DNA and fingerprints matching those of Erik Smith were found on that plastic tub. There was no DNA or fingerprint evidence linking the accused to this plastic container.
There was no evidence to support a finding that GHB was being manufactured at the property. There was no other fantasy found at the property, albeit the water bottle containing fantasy was found in the public carpark outside the front of the property.
Notwithstanding my findings as to count 1, and the physical proximity of the plastic tub, that is, in the carport area, to where the accused was found at the time of the fire, I cannot exclude as a reasonable possibility that the plastic tub and its contents were in the exclusive possession of someone other than the accused.
Further, notwithstanding the accused rented the property, and my findings as to count 1, for me to be satisfied the accused was taking a step in the process of sale of this GHB, I must be satisfied beyond reasonable doubt that the accused provided or allowed the use of the premises or jointly occupied premises ‘for the purpose of sale’ of the drug.
This necessarily requires a finding, beyond reasonable doubt that the accused knew of both the presence of this GHB on the property, and that he knew it was intended for the GHB to be sold. While the latter may be presumed from the sheer quantity of the drug, the tub containing the GHB was outside, and although within the boundaries of the property, was near where the RAV 4 was located. The accused’s car was parked elsewhere, at the front of the property.
While it is likely the accused knew those drugs were at the property, I cannot be satisfied of this beyond reasonable doubt, in the absence of further evidence.
I find the accused not guilty of count 2.
Count 3
I am satisfied and find that a plastic press seal bag containing a crystalline substance, with a total weight of 18.5 g and containing 14.7 g of pure methylamphetamine, was found in the top drawer of the vanity in the upstairs bathroom (PPMS Item 49).
I am satisfied and I find that another plastic press seal bag containing a smaller amount of a crystalline substance, was also found in the top drawer of the vanity in the upstairs bathroom and that this substance contained methylamphetamine and weighed 1.94 g (PPMS Item 50).
I am satisfied and find, beyond reasonable doubt, that combined, these two quantities of methylamphetamine comprise a trafficable quantity of methylamphetamine.
There was no DNA or fingerprint evidence before the court as to these two items. The bags were found in the vanity drawer of the upstairs bathroom, being a communal area within the property, albeit in close proximity to the master bedroom. The presence of ice pipes found within the property is consistent with the accused and/or Mr Linke engaging in the personal use of methylamphetamine inside the property.
Again, notwithstanding my findings as to count 1, I cannot exclude as a reasonable possibility that this methylamphetamine was in the exclusive possession of someone other than the accused and specifically, Mr Linke.
Further, notwithstanding the accused rented the property, and my findings as to count 1, for me to be satisfied the accused was taking a step in the process of sale of these drugs, I must be satisfied beyond reasonable doubt that the accused provided or allowed the use of premises or jointly occupied premises ‘for the purpose of sale’ of the drug. This necessarily requires a finding, beyond reasonable doubt that the accused knew of both the presence of those drugs on the property, and that he knew it was intended for some of those drugs to be sold.
Although it is possible the accused knew of the presence of these drugs inside the property, and that he knew it was intended for some of the drugs to be sold, I cannot be satisfied of both these criteria beyond reasonable doubt, in the absence of further evidence.
I find the accused not guilty of count 3.
Count 4
I am satisfied and I find beyond reasonable doubt that there was a substance containing a mixture of GHB and water, weighing 320 g in the 600 ml water bottle found by Office Porter on the ground in a public carpark adjacent to the beach, at the front of the property.
I am satisfied that this is a trafficable quantity of GHB for the purposes of the CSA.
There was no DNA or fingerprint evidence linking the accused to this bottle.
While I am satisfied that Mr Linke dropped this bottle as he was running from the property, after the fire, and that this was one of the bottles Mr Eikmeier saw him gathering from inside the property, I cannot exclude, as a reasonable possibility, that Mr Linke had exclusive possession of this bottle and its contents, nor can I be satisfied beyond reasonable doubt, that the accused both knew of the presence of this fantasy, at an earlier time, inside the house and that some of this fantasy was intended to be sold.
I find the accused not guilty of count 4.
Count 5
I am satisfied and find beyond reasonable doubt that the property, being a building, was damaged by fire.
However, for the accused to be guilty of this count, I must be satisfied that he was recklessly indifferent as to whether his conduct would damage property. To prove this beyond reasonable doubt, the prosecution must satisfy me that the accused knew that there was a substantial risk his actions would cause damage to property, but proceeded to so act, in any event.
As stated earlier in these Reasons, the prosecutor opened on the basis that there were two possible pathways to guilt with respect to count 1, one of which being that the accused was engaged in a joint enterprise with Mr Linke to manufacture a large commercial quantity of methylamphetamine at the property.
However, the prosecution case was always to the effect that the accused had, in fact, taken a step in the process of manufacture, in that he had, at the very least, provided or allowed the use of the property for the purpose of the manufacture of the methylamphetamine.
The very conduct relied upon by the prosecution to allege that the accused participated in the joint criminal enterprise, with Mr Linke, to commit count 1, was the very conduct which founded the allegations that he took part in the process of manufacture. As outlined in Zenuni v The King,[312] it was never alleged that any of the conduct relied upon to establish the actus reus of the offence was performed solely by Mr Linke, such that the case was, at law, really one of joint enterprise.
[312] [2022] SASCA 106.
The prosecutor acknowledged that it could not be proved precisely what, if any other steps, save for providing or allowing the use of the property and guarding or concealing the drugs due to his presence at the property, the accused had actually performed with respect to the manufacture. That is, the prosecution could not prove the accused set up the clan lab, or helped to set it up, that he transported any of the equipment or chemicals to the property, or that he actively participated in the hands-on tasks associated with the chemical process of distilling the methylamphetamine from the reaction mixture.
Similarly, the prosecution could not prove that it was the accused’s responsibility to monitor the clan lab, for example, to ensure the reaction vessel did not boil dry and/or to ensure that the equipment was properly functioning, including the burner and gas bottle. Nor could it prove that the accused was tasked with this responsibility at the time of the fire.
There was no evidence to support a finding that simply undertaking the distillation step of the manufacture of methylamphetamine created toxic fumes or carried with it an inherent and substantial risk of fire.
The expert evidence as to the cause of the fire was simply that it emanated from the burner.
Although the fire would not have occurred ‘but for’ the fact the burner was being used to manufacture methylamphetamine, the effect of the expert evidence was that the risk of fire from the use of the burner for this particular purpose was no different to the same risk encountered by the use of a gas barbecue.
There was no expert evidence before the court as to the risks associated with the use of this type of gas burner inside a property.
As such, to return a verdict of guilty on count 5, the court would need to be satisfied beyond reasonable doubt that, at the time the fire broke out, the accused was tasked with the responsibility of monitoring the burner and being ready to respond, if a fire emanated unexpectedly from that burner, and that the accused failed to discharge that responsibility, knowing of the substantial risk that his failure to do so would cause damage to the property. Ignoring the latter issue, and the absence of proof on that issue, there was insufficient evidence to ever prove, beyond reasonable doubt, that the accused’s involvement in this offending included a responsibility, either solely or jointly, at the time the fire broke out, to monitor the burner.
The prosecutor expressly disavowed any reliance on the principle of joint enterprise as providing a basis for a finding of the accused’s guilt as to count 5. This is understandable. For the principle of joint enterprise to apply, the court would need to be satisfied the accused was joined with Mr Linke in a criminal enterprise, such that the acts done in furtherance of that enterprise by either of them are in law to be taken as the acts of the accused and that this offence, that is the arson, was within their contemplation as an incident or outcome of that enterprise. Neither the accused nor Mr Linke contemplated this outcome.
Further, the evidence falls short of proving beyond reasonable doubt either that the distillation step in the manufacture of methylamphetamine, of itself, posed a substantial risk of fire and/or that the accused knew this.
I find the accused not guilty of count 5.
Verdicts
1.The accused is guilty of count 1.
2.The accused is not guilty of counts 2, 3, 4 and 5.
0
8
1