R v Randylle - [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

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.
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.
Mr Kourakis QC SG, for the Director of Public Prosecutions, asked that the appeal be heard by a court comprising five judges. The decision of this Court in Re Avory; Question of Law Reserved (No 1 of 2003) [2003] SASC 430; (2003) 87 SASR 392 was seen as inconsistent with the finding of guilt. Mr Kourakis wished to submit that Avory was wrongly decided to the extent that it was inconsistent with the Judge’s decision.
The legislation
Section 32(1) of the CSA provides:
(1)     A person must not knowingly –
(a)     manufacture or produce a drug of dependence or a prohibited substance; or
(b)     take part in the manufacture or production of such a drug or substance; or
(c)     sell, supply or administer such a drug or substance to another person; or
(d)     take part in the sale, supply or administration of such a drug or substance to another person; or
(e)     have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.
The meaning of subs (1) is affected by subs (4), which provides:
(4)Without limiting the generality of this section, a person takes part in the manufacture, production, sale, supply or administration of a drug of dependence or prohibited substance if the person –
(a)     takes, or participates in, any step, or causes any step to be taken, in the process of that manufacture, production, sale, supply or administration; or
(b)     provides or arranges finance for any such step in that process; or
(c)     provides the premises in which any such step in that process is taken, or suffers or permits any such step in the process to be taken in premises of which he or she is the owner, or in the management of which he or she participates.
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.
Mobile phone records showed that there were ten telephone calls between Ms McDonnell-Smith and Mr Randylle on 6 January, and 16 up to and including 2.03 pm on 7 January. There were several telephone conversations between Ms McDonnell-Smith and Mr Cosford over that period.
The Judge admitted evidence that Mr Cosford had been seen on another occasion producing methylamphetamine, with other evidence indicating that he knew how to make methylamphetamine. He admitted it as circumstantial evidence that was capable of rebutting a claim of innocent association between the three accused.
The Judge relied on the traces of methylamphetamine found on Mr Randylle’s hands and those of Ms McDonnell-Smith as evidence that they had an interest in methylamphetamine. He made a similar finding in relation to Mr Cosford.
Drawing on the whole of the evidence before him, the Judge said he regarded as significant:
[134](11) …
(a)the fact that, absent pseudoephedrine, on 7 January there were assembled at the premises at 21 Paula Avenue, all the materials and equipment required to manufacture methylamphetamine, at the residence of a person who knew how to do it and had previously used the premises to do it;
(b)there is then a chronological convergence: on 6 January Cosford had purchased five kilograms of iodine and on the following day, and pursuant to an arrangement between them, McDonnell-Smith and Randylle had arrived at his premises with all the remaining materials and equipment required to produce methylamphetamine, save for pseudoephedrine;
(c)there is then the fact that the accused knew each other and each had an interest in methylamphetamine.
From this summary of factual findings the Judge drew the following inferences:
[135]The evidence does not prove there was an existing laboratory at the Paula Avenue premises established for the purpose of manufacturing methylamphetamine, but I am satisfied that it shows there was a plan to set up that laboratory and to take steps in the process of manufacturing methylamphetamine within a very short time of 2 p.m. on 7 January. It was not a case, as I find it, of there being mere preparatory steps towards that goal with no knowledge of or specific intention to then manufacture or with a vague intention to manufacture at an indefinite time in the future.
[136]Having regard to my above conclusions and excluding those items of circumstantial evidence inadmissible against particular accused, I am nonetheless satisfied beyond reasonable doubt that between 1 and 8 January 2005 at Windsor Gardens, each of the accused was part of a joint enterprise, whether or not each knew of the entire role to be carried out by the others, to knowingly take a step in the process of manufacturing methylamphetamine, a process that was then planned and imminent. I am not persuaded that in respect of any one of the accused, there is any reasonable hypothesis consistent with his or her innocence.
Mr Kourakis submits, and I agree, that there are some circumstances of particular significance. The amount of laboratory equipment was substantial. The iodine, purchased by Mr Cosford only the day before the relevant events, had cost $968. All of the chemicals needed to manufacture methylamphetamine, except for pseudoephedrine or a source of it, were present in either the house or one of the cars. There was no innocent explanation for this. Mr Randylle’s interest in methylamphetamine and pseudoephedrine was shown by the traces on his hands. The circumstances in which Mr Randylle and Ms McDonnell-Smith arrived at the house, with equipment and chemicals, and the fact that they arrived at a house containing further equipment and chemicals, all suggested that this was part of a plan involving Mr Cosford, and not coincidence. That inference was supported by the numerous telephone calls. All of these circumstances combine to suggest, as the Judge found, that the production of methylamphetamine was intended and was imminent.
Mr Charman, counsel for Mr Randylle, challenged the Judge’s findings. He challenged in particular the finding that Mr Randylle was part of or party to the plan that the Judge found existed. However, Mr Charman did not identify any error in the Judge’s approach, or any particular weakness in the findings. He did not demonstrate any error of the kind that would be required for this Court to set aside the Judge’s finding of fact. To the contrary, in my opinion those findings of fact are soundly based. I proceed on the basis of the Judge’s findings.
The appeal
The main issue is whether, having made these findings, the Judge erred in finding Mr Randylle guilty.
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”.
At [92] he indicated his agreement with the reasoning in a line of decisions in New South Wales, on a similar provision, beginning with R v BD (2001) 122 A Crim R 28. He said that those cases:
… correctly distinguish … the distinction to be drawn between merely preparatory acts and acts which may properly be regarded as evidence of participation in a process of manufacture.
At [95] he emphasised that the taking or participation in any step must be in the process of manufacture. I think it likely that he intended to agree with a comment by Bell J in BD that the purchase of a single item of laboratory equipment, the purchaser intending to use it in connection with the manufacture of a drug, would not, of itself, constitute a step in the process of manufacture: see [77] and [90]. At [96] Perry J indicated his agreement with certain submissions made to him by counsel for Mr Avory. Those submissions distinguish between the possession of items for use in an existing “laboratory” (which might or might not be in production at the time), and possession of items with no more than a view to their possible use at some future time in a “laboratory” not yet set up. In the former situation counsel accepted that the possession might amount to taking a step in the process of manufacture, but argued that in the latter situation it would not. But Perry J added at [97]:
In accepting those submissions, I should make it clear that to take part in the manufacture, or to take or participate in a step in the process of manufacture of an illicit drug, does not necessarily mean that there must be an existing laboratory established for that purpose. The process of manufacture, which, in my view, must be in place before any acts can properly be characterised as constituting participation in that process, may be constituted by a variety of means. It would be unwise to attempt in advance to define what might constitute such a “process”.
This reference to the reasons of Perry J indicates that his comments on what amounts to the process of manufacture cannot bind another court, because no definite conclusion is expressed, and in each instance only some of the relevant facts are given. He is dealing with a series of hypothetical situations. What is stated in binding terms is that a distinction is to be drawn between “merely preparatory acts and acts which may properly be regarded as evidence of participation in a process of manufacture”: [92]. His reasons do not contain any binding statement of what amounts to an act that is a step in the process of manufacture, or what will distinguish such an act from an act that is preparatory to the process of manufacture.
Besanko J said that he agreed with the answers proposed by Perry J and substantially agreed with his reasons: [102]. He went on to say at [105]:
In my opinion, the critical question will be whether the accused’s acts are part of, or a step in, a systematic or planned or pre-arranged series of actions or operations which involve the making of a substance or material which is different from the substances or materials out of which it is made. Clearly, purchasing the substance or materials out of which the relevant drug is to be made and/or transporting the same may be acts which satisfy that description if they are part of a systematic or planned or pre-arranged series of actions or operations of the relevant type. On the other hand, merely purchasing and having possession of some of the substances or materials out of which the relevant drug may be made will be insufficient unless it is clear that such acts are part of a systematic or planned or pre-arranged series of actions or operations. Obviously, what side of the line a particular factual situation falls will depend on the precise evidence which is put forward including the inferences which can be drawn from the accused’s conduct. …

None of the situations on which Perry J commented in his reasons match the facts of the present case. The two situations which he said might amount to taking a step in a process of manufacture appear to be, based on the limited facts postulated, stronger cases than the present one. But the situation which he accepted would not amount to taking a step in the process of manufacture was a weaker case than the present one.
The passage set out above from the reasons of Besanko J suggests that he might have concluded that in the present case, on the facts as found, guilt could be established.
So, while Mr Charman relies upon Avory to support the appellant’s submission, it does not do so. The distinction drawn between acts preparatory to the manufacture of a substance, and the process of manufacture, is of potential assistance to Mr Charman. But even if that distinction is used as a method of analysing the facts, the question remains of how the circumstances of the present case are to be characterised. Mr Kourakis also treated Avory as deciding more than it does. He makes the point, with which I agree, that the concept of acts preparatory to manufacture is not one found in the CSA. If the concept is intended to distinguish between acts which are a preliminary to the process of manufacture, and the process itself, no harm is done by using it. However, I agree with Mr Kourakis that at the end of the day the question must be, in terms of the CSA, whether the relevant facts establish that the accused has taken or participated in a step in the process of manufacture.
In his submissions Mr Kourakis postulated some situations in which, applying the reasoning of Perry J, a conclusion was likely to be reached that the taking of a step in the process of manufacture had not occurred. But these illustrations do no more than assume that on that reasoning the relevant acts or events would be categorised as merely preparatory acts and not as a step in the process. In the end his examples do no more than illustrate issues that will have to be decided, if and when the postulated set of circumstances should arise.
Mr Kourakis went on to submit that any step that could, together with other steps, result in the manufacture of a drug, if taken with that intention, could amount to the taking of a step in the process of manufacture. He submits that the process of manufacture has commenced whenever a step that is “objectively capable of leading to the manufacture of a drug is taken by a person who intends it to result in the manufacture of the drug”.
As I understood his submission, the purchase of a single piece of usable glassware, with the intention of using it to manufacture a drug, the purchaser at that stage not being in possession of any other piece of equipment required, or a single consumable that would be required, could amount to the taking of a step in the process of manufacture. The correctness of that submission can also be left to be determined if and when that extreme set of circumstances arises. I do not think declining to answer it now gives rise to any particular problem.
In summary, both Mr Charman and Mr Kourakis treated Avory as establishing propositions that are dispositive of the appeal. I do not agree. Avory does no more than draw a distinction between acts preparatory to manufacture, and acts that are part of the process of manufacture. In addition Perry J gives some illustrations of how that distinction might be applied, but they are illustrations that cannot bind in any way because the relevant facts are stated so briefly, and the conclusions are expressed in tentative terms. I agree, however, that the reasons given by Perry J and Besanko J are inconsistent with acceptance of the submission by Mr Kourakis that I have just summarised.
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.
There is no doubt in my mind that acquiring and setting up the equipment needed to manufacture a drug or substance, (or part only of the equipment) could amount to the taking of a step in the process of manufacture (depending of course on what other evidence there is), even though one might say that this is preparatory to the manufacture of the drug, referring to the use and treatment of the consumables as the object of the exercise. Once again, the answer to the statutory question would depend on all of the facts of the case.
There is no point in trying to answer in advance the questions that these examples suggest. The fact that the answers given in Avory cannot and do not resolve the situation now before the Court, and did not resolve the situation before the Court in Avory, demonstrates the futility of attempting to provide answers in general terms to what I have called the statutory question.
For what it is worth, I respectfully agree with the observations by Besanko J in Avory that I have set out above. I doubt whether there is any point in attempting to go any further than his Honour did, unless one is grappling with all of the facts of a particular case.
However, I make these further points. If the answer given in Avory means that an act cannot be the taking of a step in the process of manufacture until the first chemical reaction or process involving the consumables has taken place, or until something is done to change one of the consumables (for example, crushing tablets containing pseudoephedrine), I respectfully disagree with the answer. But for reasons I have explained, I do not consider that the answer has that meaning. Likewise, if the answer to the question in Avory means that an act cannot be the taking of a step in the process of manufacture until all of the required ingredients and equipment are to hand or are available, I respectfully disagree. But I do not consider that the answer leads to that conclusion either. The process of manufacture involves the use of equipment, the use of consumables and the carrying out of steps or processes with the equipment and the consumables. Acquiring or assembling the equipment needed or some of it, or acquiring or using the consumables required or some of them, can be a step in the process of manufacture. Whether it is or not will depend on all the circumstances.
I regard the present case as a clear one. The evidence established that, between them, the offenders had all of the equipment required to manufacture methylamphetamine, they had identified a place at which to do it, and at least one of the offenders knew how to do it. On the Judge’s finding the offenders between them had most of the consumables required, all they lacked was the pseudoephedrine. There was a plan involving the three of them to get the process of manufacture underway shortly after Ms McDonnell-Smith and Mr Randylle arrived at the premises. It is implicit in the Judge’s findings that the offenders expected to obtain the pseudoephedrine in the near future.
In the light of those findings there is no difficulty in upholding the conclusion that when Mr Randylle arrived at the premises at about 2.00 pm on 7 January, he had taken a step in the process of the manufacture of methylamphetamine. The parties to the arrangement has passed beyond the stage that could be regarded as involving merely preparatory acts. Participating in bringing together, at one place, all of the equipment required and most of the chemicals required, with an intention of at that place, and within a short space of time, assembling the equipment and putting the chemicals to use to produce methylamphetamine, can readily amount to the taking of a step in the process of manufacture.
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.