R v Randylle

Case [2006] SASC 318

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v RANDYLLE

[2006] SASC 318

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Sulan, The Honourable Justice Vanstone, The Honourable Justice Layton and The Honourable Justice David)

18 October 2006

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - PROOF AND EVIDENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - OTHER MATTERS

Appeal against conviction - appellant was convicted by a Judge of the District Court sitting without a jury of the offence of taking part in the manufacture of methylamphetamine contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA) - whether it has been proved that the appellant has taken or participated in a step in the process of manufacture of a prohibited drug of dependence - Parliament intended that s 32 of the Controlled Substances Act 1984 (SA) have a wide reach - consideration of whether criminal liability can attach to the conduct of the appellant - body of circumstantial evidence supports the inference at the criminal standard that the appellant was engaged in a step in the process of manufacture of methylamphetamine - the process of manufacture involves the carrying out of steps in the process of manufacture together with the use of consumables and of relevant equipment - the accused carried to a house equipment commonly used in the production of methylamphetamine - the house contained consumables used in that process - the evidence was that but for the substance pseudoephedrine, which substance was detected on swabs of the appellant's hands, all the ingredients necessary for the production of methylamphetamine were present - evidence of telephone contact between the appellant and the co-accused and of the prior production of a drug of dependence - each case must be considered on its own facts - the appellant's conduct constitutes a step in the process of manufacture as contemplated by the legislation - appeal dismissed.

Controlled Substances Act 1984 (SA) s 32(1)(b), 34(4), referred to.
Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392; R v BD (2001) 122 A Crim R 28, discussed.

R v RANDYLLE
[2006] SASC 318

Court of Criminal Appeal: Doyle CJ, Sulan, Vanstone, Layton and David JJ

  1. DOYLE CJ: Mr Randylle was tried before a District Court Judge sitting without a jury and convicted of the offence of taking part in the manufacture of methylamphetamine contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA) (“the CSA”). Ms McDonnell-Smith and Mr Cosford were tried with Mr Randylle, and convicted of the same offence.

  2. The appeal by Mr Randylle against his conviction raises the question of whether the prosecution proved against Mr Randylle facts that amounted to taking or participating in a step in the process of the manufacture of methylamphetamine.

  3. Mr Kourakis QC SG, for the Director of Public Prosecutions, asked that the appeal be heard by a court comprising…

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R v Randylle [2006] SASC 318
Case
[2006] SASC 318
Decision Date

CaseChat Overview and Summary

The appeal was heard by the South Australian Court of Criminal Appeal against a conviction by a Judge of the District Court sitting without a jury. The appellant, Randylle, was found guilty of taking part in the manufacture of methylamphetamine, a prohibited drug of dependence, contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA). The central legal issue before the Court was whether it had been proven that Randylle had taken or participated in a step in the process of manufacturing methylamphetamine. The Court had to determine whether Randylle's conduct constituted a step in the process of manufacture as intended by the legislation.

The Court dismissed the appeal, affirming the decision of the District Court Judge. The Court held that Parliament intended s 32 of the Controlled Substances Act 1984 (SA) to have a wide reach, capturing a broad range of conduct related to the manufacture of prohibited drugs. The body of circumstantial evidence supported the inference that Randylle was engaged in a step of the manufacturing process. This included the presence of equipment and consumables typically used in the production of methylamphetamine in the house where Randylle was found, as well as the detection of pseudoephedrine on his hands. The Court noted that the process of manufacture can involve multiple steps, carried out over different times and places by different individuals. Randylle's actions, in conjunction with the other evidence, supported the conclusion that he had indeed taken a step in the process of manufacturing methylamphetamine. Each case must be evaluated on its own merits, and in this instance, Randylle's conduct met the criteria for criminal liability under the legislation.

The Court concluded that Randylle's actions constituted a step in the process of manufacture as intended by the Controlled Substances Act 1984 (SA). The circumstantial evidence provided a comprehensive picture that aligned with the legislative intent to broadly encompass conduct related to the production of prohibited substances. The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

There is no reason to read s 32(1)(b), as affected by s 32(4), narrowly. It is clear that Parliament intended s 32(1) to have a wide reach. It is well known that clandestine production of drugs of dependence and prohibited substances occurs in our community. It is also well known that such substances can be produced from so-called “mobile laboratories” that can be moved easily from place to place, making detection difficult. The prohibition must have been intended to catch a wide range of conduct.Facts and the Judge’s decision My summary of the facts is taken from the Judge’s findings. The primary findings were not disputed, as I understand the submissions. About 2.00 pm on Friday 7 January 2005 police went to a house at Windsor Gardens. Mr Cosford lived there. He was not present at the time. The police searched his room. They found a jar containing iodine (which can be used in production of methylamphetamine), some equipment that could be used to produce methylamphetamine, electronic scales containing traces of methylamphetamine and glucose powder and plastic snap-seal bags, items often associated with the sale of methylamphetamine. Not long after, Mr Randylle arrived, driving a sedan, with Ms McDonnell-Smith, who was driving a utility. The police searched the sedan and found glassware of a kind that could be used to produce methylamphetamine, wrapped in bubble wrap. They found a gas burner. Two bags in the boot contained numerous pieces of laboratory materials and glassware, electronic scales and containers of chemicals that could be used to produce methylamphetamine. In the utility the police found laboratory glassware, a gas cylinder and retort stands. There were other items found that could be used for the production of methylamphetamine. Swabs were taken from the hands of Mr Randylle and Ms McDonnell-Smith. Traces of amphetamine, methylamphetamine and pseudoephedrine were found in the hand swabs. The police then searched the house more thoroughly. They found a large quantity of iodine in a spare room. They found a gas bottle, plastic piping, chemicals, containers and gloves. They found printed material dealing with the manufacture of methylamphetamine, although not by the method which the prosecution case suggested was to be used. Evidence before the Judge established that on 6 January, (the day before), Mr Cosford had purchased five kilograms of iodine for $968. The admissibility of this evidence was the subject of a separate challenge. Mr Randylle told the police on 7 January that he had been doing Ms McDonnell-Smith a favour. He said she had rung him on the previous day and asked him to help her transport “gear” from Eudunda to Adelaide. He said that when he loaded his car on the morning of 7 January, and saw what he was carrying, he “suspected that the gear had something to do with the cooking of amphetamine”, and suspected that Mr Cosford might have produced amphetamine before. He said he had an idea that what he was doing was illegal, but preferred not to ask any questions.

Evidence

Evidence Before The Court

In my opinion the decision of the District Court Judge was correct.The challenged evidence The evidence that Mr Cosford had purchased a large quantity of iodine on 6 January was admissible. The iodine was found in the house. Evidence of the contents of the house was admissible in evidence against each of the accused. These were objective facts relevant to the alleged manufacture. Whether any particular fact implicated one or more of the accused was for the trier of fact to decide. The admissibility of the evidence of the contents was not challenged. The time of purchase, and the identity of the purchaser, was relevant and admissible, because of the evidence linking Mr Cosford to the house and to the actions of Mr Randylle and Ms McDonnell-Smith.Conclusion I would dismiss the appeal. SULAN J: I would dismiss the appeal. I agree with the reasons of the Chief Justice. VANSTONE J: I would dismiss the appeal. I agree with the reasons for judgment given by the Chief Justice. LAYTON J: I would dismiss the appeal. I agree with the reasons given by the Chief Justice. DAVID J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.

Decision

Reasons for decision

Mr Charman submits that on these findings Mr Randylle had at most engaged in acts or steps preparatory to the manufacture of methylamphetamine, and that on the Judge’s findings one could not say that the process of manufacture had commenced, or that Mr Randylle had taken a step in the process of manufacture. He relied in particular on the absence of pseudoephedrine, an essential component in the process, on the fact that the equipment was not set up and on the fact (which seems to be the same point) that the equipment in the vehicles had not been unloaded. Mr Charman submits that the decision of the Full Court in Avory supports his submission.The decision in Avory In Avory the trial Judge reserved a question of law relevant to a trial for the consideration of the Court of Criminal Appeal. The Judge did so having ruled on the admissibility of certain evidence, and before empanelling a jury. The Judge anticipated that at the close of the prosecution case there would be a submission of no case to answer, and he sought to raise the question of law that that submission would raise. The Judge did not make findings of fact, but provided the Court with a “statement of circumstances”. That statement summarised the evidence in the depositions before the Judge. The Judge did not ask the Court of Criminal Appeal whether, on that evidence, a submission of no case to answer should succeed. Instead, he reserved the following questions at [36]:[36] The questions in the case stated are as follows:Do the words “take part in the manufacture” in s 32(1)(b) of the Controlled Substances Act 1984, include:(1) acts preparatory to the manufacture of a drug of dependence or a prohibited substance where those acts are done for the purpose of manufacture, and are necessary for such manufacture, but where no subsequent steps in the process of manufacture occur?(2) the transportation of all, or some, of the materials, required for manufacture where they are knowingly intended for manufacture?Perry J, with whose reasons Mullighan J agreed, answered those questions as follows at [100]:(1)… No, if by the words “acts preparatory to the manufacture of a drug of dependence or a prohibited substance” it is intended to refer to acts taking place before the process of manufacture has commenced, in the sense referred to in the above reasons.(2)… Yes, so long as the evidence establishes that:(a)a process of manufacture has been established; and(b)that by the transportation of the materials the accused intends to take part in, contribute to or assist in that process. As Perry J recognised, having regard to the form of the question answered, the answers could not determine the outcome of the proceedings. Perry J noted that on one view of the facts before the trial Judge it might well be that a no case submission would succeed, but that would be a matter for the trial Judge in the light of the reasons and in the light of the evidence as it emerged at trial: [98]. The answer given by Perry J requires consideration of his reasons, to understand what he meant when he referred to “the process of manufacture having commenced” and when he said that “a process of manufacture had been established”.

Ratio Decidendi

Legal Principle Established

There is no need for the court to reconsider the decision in Avory. There is no point in doing so. Avory does no more than draw a distinction, in very general terms, that might be helpful when analysing the facts in some cases.Consideration of appeal The relevant provisions of the CSA should not be read narrowly. I have already given my reasons for that proposition. The reference to a step in the process of manufacture directs attention to conduct which leads towards or has the purpose of manufacture. The relevant conduct must be a step in the process. That does suggest a distinction between acts or conduct that precede the process of manufacture and acts or conduct that are part of the process of manufacture. I consider that any attempt to draw the relevant line or distinction, in abstract terms, divorced from a fairly detailed statement of facts is doomed to failure. To attempt to do so is simply to restate, in different language, the issue that arises under s 32(4)(a). The issue is whether on the facts proved it was open to the Judge to find that the accused has taken a step in the process of manufacture of the drug or substance in question. A finding that the accused intended to manufacture the drug or substance, and had a definite plan, as distinct from merely contemplating circumstances in which the opportunity to do so might arise, will be significant if it is made. It will provide a framework within which to consider the acts that are relied upon as the required step. But in the end one must come back to the facts, as one does in the present case, and pose the question that arises under s 32(4)(a) of the CSA. As I have already explained, in my respectful opinion neither the answer to the question stated in Avory, nor the reasons of the members of the Court, dictate how the statutory question is to be answered. The answer given in Avory merely restates the statutory issue, using the notion of acts preparatory to manufacture as a means of indicating acts that will not amount to the taking of a step in the process of manufacture. But the answer and the reasons leave undetermined the question of how one decides what is an act preparatory to manufacture, and what is part of the process of manufacture. It is trite to say it, but in any given case arising under s 32(4)(a), one must consider all of the proven circumstances in their context. In my opinion (and there is nothing in Avory to the contrary), a step in the process of manufacture can be taken by someone who does not have all of the equipment or chemicals required to complete the process. Such a step could be taken before any chemical reaction is produced by the use or treatment of consumables. The process of production can be broken into stages, that might be conducted at different places and by different people and on different days. If the evidence establishes that that is what was intended, an act or event which in isolation might not appear to be a step in the process of production may, properly understood, be found to be such a step. All of these things have to be considered.