R v Schaefer, Schiworski & Brown - [2005] SADC 101

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SCHAEFER, SCHIWORSKI & BROWN
Reasons for the Verdicts of His Honour Judge Millsteed
9 August 2005
CRIMINAL LAW
Trial by judge alone - accused jointly charged with two counts of taking part in the manufacture of methylamphetamine - key prosecution witness an accomplice and police informant - inherently suspect - evidence corroborated by individual circumstantial evidence - evidence relating to charges cross admissible on non-propensity and propensity reasoning bases - accused guilty of charged offences.
Controlled Substances Act 1984 s32(1)(b); Criminal Law Consolidation Act 1985 s285A; Juries Act 1927 s7(1)(a), referred to.
R v Day (2002) 82 SASR 85; R v McNamara [1987] VR 856; Yisrael v District Court of New South Wales (1996) 87 A Crim R 63; Edwards v The Queen (1993) 178 CLR 193; R v Frangos (1979) 21 SASR 331; R v Tangye (1997) 92 A Crim R 545; R v Kostic and Stefanopoulos [2004] SASC 406; R v Stokes and Difford (1990) 51 A Crim R 25; R v Clough (1992) 28 NSWLR 396; Giorgianni v R (1985) 156 CLR 473; R v Russell [1933] VLR 59; Jones and Mirrless (1977) 65 Crim App R 250; R v Clarkson [1971] 1 WLR 1402; R v Bland [1988] Crim LR 41; Davies v DPP [1954] AC 378; R v Baskerville [1916] 2 KB 658; R v Baker [2000] SASC 407; R v Forgione [1969] SASR 248; R v Williams (1978) SASR 423; R v Tyler [1994] 1 Qd R 675; Doney v The Queen (1990) 65 ALJR 45; R v Duke (1979) 22 SASR 46; R v Baker (2000) 78 SASR 103; R v Long and McDonnell (2002) 137 A Crim R 263; R v Smith (No 2) (1995) 64 SASR 1; Pfennig v The Queen (1995) 182 CLR 461; Sutton v The Queen (1984) 152 CLR 528; R v Rowton (1865) 169 ER 1497; Melbourne v R (1999) 198 CLR 1; Esposito v R (unreported judgment) CCA (SA) S6390 21 July 1983; DPP v Coluccio (unreported judgment) Judge Lunn D3109 8 July 1994; R v Conley (1982) 30 SASR 226; R v Palaga (2001) 80 SASR 19, considered.

R v SCHAEFER, SCHIWORSKI & BROWN
[2005] SADC 101

This is a trial by judge alone.
The accused Klaus Dieter Schaefer, Arthur Gordon Schiworski and Daniel Craig Brown are jointly charged on information with two counts of taking part in the manufacture of a drug of a dependence, namely, methylamphetamine, contrary to s32 (1)(b) of the Controlled Substances Act 1984 (CSA).
Short description of prosecution case
It is the prosecution’s case, that, on 4 July 2001, (count 1) and 2 August 2001 (count 2) the three accused took part in the manufacture of methylamphetamine in an illicit drug laboratory located on a small rural property. The property, which belonged to the accused Schaefer, was situated 2kms from the township of Owen on the road from Owen to Balaklava. The laboratory was arranged in a large shed that had previously been used as a piggery. The shed was located in a paddock behind Schaefer’s home.
The accused were assisted in the venture by a person whose name has been suppressed. I shall call him P. At the time the accused were unaware that P was a police informant and a participant in an undercover operation. The undercover operation (which had been approved by a senior police officer, purportedly, pursuant to the provisions of the Criminal Law (Undercover Operations) Act 1995 (UOA)) had been set up to investigate P’s claims that the accused Schiworski and Schaeffer and others wanted to manufacture methylamphetamine.
On 4 July 2001, P drove to Schaefer’s property and assisted the accused Schaeffer and Schiworski to manufacture approximately 9-12g of powder containing methylamphetamine. The prosecution contends that the accused Brown kept a lookout for police at the front of the property while the drug was being manufactured. That night P met police in the city and gave them his share of the product which consisted of 2.85g of powder containing .77g of pure methylamphetamine.
P returned to the property on 2 August 2001. The prosecution contends that P again assisted the accused Schaeffer and Schiworski to manufacture methylamphetamine while the accused Brown acted as a lookout. P then left the property. Several hours later police raided the property. They located the laboratory and arrested the three accused who were inside the house on the property when the police arrived. All of the chemicals and equipment required for the manufacture of methylamphetamine were found inside the shed. In addition the police located traces of dried methylamphetamine powder and a reaction vessel that contained liquid methylamphetamine. The liquid was later converted, by a forensic scientist, into a powder that contained .24g of pure methylamphetamine.
Voir Dire Hearing
Late last year, counsel for the accused applied for a voir dire hearing pursuant to s285A of the Criminal Law Consolidation Act 1985 to determine the admissibility of evidence implicating the accused in the commission of the charged offences. Each accused applied for exclusion of all evidence implicating him in the commission of the charged offences and, in the alternative, for a permanent stay of proceedings on the ground that the police undercover operation was tainted by illegality and impropriety.
I granted the application for a voir dire hearing. I found that the approval to conduct the undercover operation was invalid but that the operation was, in all other material respects, untainted by illegality or impropriety. I refused the applications for a stay of proceedings and for exclusion of the evidence to be presented by the prosecution: see reasons for ruling [2004] SADC 185.
Election to be tried by Judge alone
Following the publication of my reasons for the voir dire ruling, on 17 December 2004, several directions hearings took place to discuss listing the matter for trial. In the course of those hearings counsel for the accused indicated that their clients wished to be tried by judge alone pursuant to s7(1)(a) of the Juries Act 1927. The principal reason advanced was to reduce trial time and costs by having the prosecution tender, as part of its case, the evidence put before me on the voir dire. That evidence was quite voluminous. I was informed that the accused Schaefer and Schiworski were not receiving assistance from the Legal Services Commission. The prosecution did not oppose the applications.
I indicated that I was sympathetic to the applications but insisted that the accused file, pursuant to rule 8 and rule 10 of the Juries Rules 1996, notices of election for trial by Judge alone and certificates from their legal representatives declaring that the accused had been advised on all matters relevant to making an election. The relevant notices and certificates were filed on 6 May 2005, 24 June 2005 and 4 July 2005 by the accused Brown, Schiworski and Schaefer, respectively.
The accused had failed to make the election before they were first arraigned in this Court as required by rule 8. However, I considered that it would be unjust not to grant the applications and invoked rule 16 to dispense with compliance with the requirements of rule 8.
The course of the trial
On 4 July 2005 the accused were arraigned. Each accused pleaded not guilty to the charges and the trial proceeded before me. Mr Retalic appeared for both the accused Schaeffer and Schiworski. The accused Brown was represented by Mr Dibden. Mr White appeared for the DPP.
At the commencement of the trial Mr Retalic asked that I permit the accused Schaefer, Schiworski and himself to be absent from court while the prosecution presented its case. He explained that although the accused Schaefer and Schiworski had pleaded not guilty, that there was “effectively no challenge to their guilt of the offences”. He suggested that their pleas of not guilty had been entered to “preserve their rights of appeal” against my ruling on the voir dire (see R v Day (2002) 82 SASR 85) and that they wanted to minimize their legal costs.
I insisted that the accused Schiworski and Schaefer be present in court throughout the trial but gave Mr Retalic permission to leave the courtroom if and when he wished. He left the courtroom in the course of the first day of the trial and returned a short while before the prosecution closed its case on 6 July 2005.
As part of the prosecution case, and with the consent of all counsel, I received, as evidence given in the trial, the material put before me on the voir dire. That material comprised all of the depositions (except the statement of P dated 19 August 2002), the exhibits tendered on the voir dire and oral evidence from the following prosecution witnesses:
·P
·Detective Senior Constable Beattie
·Detective Sergeant Jeffries
·Chief Superintendent Denis Edmonds
·Detective Sergeant James McDonald
·Superintendent Dean Paynter
·Dr Paul Pigou (forensic scientist).
The accused did not give evidence on the voir dire. However, the accused Schiworski called a witness named Brett Galloway. His evidence formed part of the material received on the trial proper .
On the trial, the prosecution supplemented this body of evidence with oral evidence from P, Constable Craig Wood and Constable Michael McMorrow each of whom was cross examined by Mr Dibden. When Mr Retalic returned to court, on 6 July, he indicated, in response to an inquiry from me, that he did not wish to cross examine any of those witnesses.
The prosecution then closed its case.
Each accused declined to give evidence and did not call any witnesses.
Counsel then addressed me. Despite the earlier intimation that the accused Schaefer and Schiworski did not challenge their guilt Mr Retalic argued that I should find them not guilty of count 1. He argued that there was no evidence to support P’s account in relation to that charge and that I should not accept P’s evidence because he was an inherently suspect witness. Mr Retalic made no submissions in relation to count 2. But obviously that does not relieve me of the responsibility of determining whether the prosecution has proved its case against the accused Schiworski and Schaefer in respect of that charge. Mr Dibden, counsel for the accused Brown, contended that I should find his client not guilty of both charges because the prosecution case depended on the credibility and reliability of P’s evidence which he vigorously challenged.
The facts
The following is a summary of the evidence presented by the prosecution on the voir dire and on the trial. The evidence presented on the trial was quite limited. Consequently, the summary substantially repeats the description of the voir dire evidence contained in my reasons for ruling [2004] SADC 185. However, in these reasons I expressly point out where the evidence presented on the trial materially adds to, or qualifies, the evidence presented on the voir dire.
P’s background
P is 44 years old. He was the director and shareholder in a company that provided services on the internet. The company also ran an escort agency. At the time of the relevant events he had been involved in the prostitution business for approximately 14 years.
During late 2000 and early 2001, P and a man named Brian Parker were jointly involved in manufacturing (“cooking”) methylamphetamine for personal use and financial gain. They manufactured the drug in a laboratory at P’s home. They employed a method of production which involved the use of hypophosphorous acid. Pseudoephedrine, an essential ingredient in the manufacture of methylamphetamine, was acquired by P through female acquaintances who purchased pharmaceutical products containing pseudoephedrine, such as Sudafed, from chemist shops. P gave evidence that they made between $7,000 to $12,500 per week from the sale of methylamphetamine.
P becomes an informant
Between 19 January 2001 and 26 February 2001, police intercepted calls on P’s mobile telephone. In late January intercepts revealed discussions between P and Brian Parker in relation to the provision of recipes, chemicals and equipment for their operation. On 2 February 2001 members of the police Drug and Organised Crime Unit (DOCU) raided P’s home and found the laboratory. P and Parker were arrested on the premises for taking part in the production of methylamphetamine. P was released on bail that night.
On 9 February 2001, the arresting officer, Detective Jeffries, met P for the purpose of returning some property that he had seized from P. In the course of the meeting they discussed the idea of P becoming a police informant. Jeffries testified that P raised the topic and expressed interest in becoming an informant for the purpose of obtaining a lenient sentence for his offence. Jeffries explained to P the procedures involved in becoming an informant and suggested that P consider his position. P, on the other hand, gave evidence that Jeffries raised the topic and indicated that P might benefit from providing information to the police. P deposed that he was reluctant to assist the police at that point. As I indicated on the voir dire I accept Jeffries’s evidence on this topic.
Despite this conflict in the evidence, it was common ground that no agreement was reached at the meeting that P would become an informant. Jeffries, however, decided that it would be prudent to register P as an informant with the SAPOL Informant Management Unit and did so the following day without informing P.
Between 19 January 2001 and 26 February 2001 P’s mobile telephone was the subject of a telephone intercept. On the night of 9 February (several hours after Jeffries’ meeting with P) police intercepted a call from P to a woman, in the course of which he made statements indicating that he was not genuinely interested in co-operating with the police. During the conversation, P referred to his meeting with Jeffries and said that he had “pulled a stunt with the cops”. Other telephone intercepts disclosed that between 2 February and 26 February, P had established, with the assistance of a person named Graeme Byrne, another methylamphetamine laboratory in a shed at Melrose Park. Towards the end of that period the intercepts indicated that the manufacturing process had commenced.
On 26 February 2002, members of the DOCU, including Detective Beattie and Detective Jeffries, raided the laboratory at Melrose Park and arrested P and Byrne for taking part in the manufacture of methylamphetamine. Beattie and Jeffries gave evidence that they met P at the Adelaide Police Station, later that night, after he was released on bail. P testified that he met Beattie but could not recall Jeffries being present. Jeffries gave evidence, which I accept, that he expressed displeasure with the manner in which P had conducted himself following their meeting on 9 February. He informed P of the telephone intercepts and expressed the view that P had tried to “mess him around” at their earlier meeting. Beattie gave similar evidence.
Jeffries deposed that as a consequence of the intercepts he did not trust P but recognised that he might prove to be a valuable informant. Accordingly, an arrangement was put in place that P would give Beattie any information that he wanted to pass onto the police with Jeffries assuming a supervisory role. P was informed that in exchange for his co-operation the police would supply the sentencing Judge with a letter explaining the nature and extent of his assistance. P agreed to become an informant on that basis.
At one point on the voir dire P suggested that his desire to help the police was influenced to some extent by his recognition of the harm that drugs can cause to society. As I found on the voir dire I have no doubt that P’s sole motive for becoming an informant was to gain a reduction of sentence for his crimes. There was no element of altruism in his decision to assist the police.
P was subsequently rewarded. On 19 April 2002, after entering guilty pleas to two counts of taking part in the manufacture of methylamphetamine, he was sentenced in the District Criminal Court to six years’ imprisonment with a non-parole period of 15 months. The sentence was suspended upon him entering into a bond to be of good behavior for two years. A factor which strongly influenced the decision to suspend, was the provision of a letter to the sentencing Judge, by police, which explained the assistance that P had given in the present case.
The scale of P’s criminal activity
On the voir dire, synopses of all the intercepts on P’s mobile phone were tendered. It was an agreed fact that the synopses (exhibit VD D23) accurately summarised the intercepted conversations. On the voir dire Mr Retalic, counsel for Schaefer, cross-examined P at length in relation to the intercepts. He submitted that the intercepts revealed that P’s criminal activities were more extensive than P had disclosed to the sentencing Judge and on the voir dire before me. These criticisms are matters relevant to an evaluation of P’s credibility as a witness and so it is necessary to canvass them.
Mr Retalic pointed to intercepts in which P made statements suggesting that his venture with Parker generated profits of $50,000 per week or more. P denied that the drug operation produced profits of that magnitude. He said that some of his comments on the telephone were boasts and others were sarcastic references to inaccurate media publicity about the level of profits that he had made. Mr Retalic also submitted that the telephone intercepts undermined P’s claim, on the voir dire, that his sole reason for committing the Melrose Park offence was to teach Byrne how to manufacture methylamphetamine.
As I indicated in my reasons for ruling on the voir dire I doubt whether P made as much as $50,000 per week from his venture with Parker. The contents of the relevant intercepts are not inconsistent with P’s explanation. Furthermore, other intercepts indicate that P was short of money at times. However, I have no difficulty in rejecting P’s assertion that the Melrose Park offence was a mere teaching exercise on his part. To my mind the telephone intercepts make it clear that soon after P was arrested on 2 February he set about establishing a new laboratory to continue his commercial operation. I find that P’s primary motive from beginning to end was personal financial gain.
Mr Retalic also contended that the intercepts revealed that P was involved in other criminal activities, namely:
·selling ecstasy, cocaine, LSD and heroin;
·supplying drugs to prostitutes employed by the escort agency in exchange for their services;
·selling methylamphetamine through other persons including prostitutes employed by the escort agency;
·receiving stolen goods in exchange for drugs;
·dealing in stolen cars;
·making pornographic videos;
·making threats to inflict harm on persons who owed him money; and
·threatening to harm a woman, who P believed had given information to the police, which resulted in his arrest on 2 February.
In relation to these allegations, P admitted that he had been supplied with ecstasy in exchange for methylamphetamine and that at one point he had expressed interest in obtaining cocaine on the same basis. He denied selling any drugs other than methylamphetamine and insisted that he did not sell methylamphetamine through other persons. He conceded making some of the threats on the telephone but could not recall making the others (though he did not dispute making them). He maintained that the threats were uttered in anger and that he never intended to carry them out. He denied involvement in the other alleged activities.
The telephone intercepts suggest to me that P probably did retail methylamphetamine through female associates (perhaps prostitutes). I also have reservations about his explanations for the threatening calls but the evidence does not satisfy me that his explanations for the threats and the other allegations advanced by Mr Retalic were necessarily false. Nonetheless, I find that he is a witness of unsavory character who stood to gain by providing the police with false information about the alleged drug activities of others. I return to this topic later.

I turn to the evidence presented by the prosecution in relation to the charged offences.
P Meets Ozzie Barrett
P gave evidence that on 29 May 2001 he received a telephone call from a female associate named Kim. She said that she knew someone who wanted to meet him. That night P went to Kim’s home and met a man introduced to him as Ozzie. Subsequent police enquiries established that his name was Oswald Barrett. Barrett told P that he had heard about him through Kim. Barrett asked P if he was interested in supplying hypophosphorous acid to Barrett and a group of people (Barrett did not name them) who wanted to manufacture methylamphetamine. P asked Barrett to obtain a magnetic stirrer (an instrument used in the manufacture of hypophosphorous acid which is difficult to obtain). P requested the item to determine if the approach by Barrett was genuine. They arranged to meet again at the Roseworthy Hotel, on 31 May 2001, to further discuss the matter.
P subsequently telephoned Beattie and informed him of the discussions that had taken place. Beattie instructed P to attend the meeting.
I pause here to mention that I have not used P’s statement to Beattie or any other statement made by P to the police in the course of the undercover operation as evidence of the truth of any facts asserted by P. The statements in question are admissible for the limited purpose of explaining the steps taken by police in the course of the operation.
P meets Barrett and Schiworski at Tarlee
P testified that Barrett telephoned him, on 30 May 2001, and informed him that the venue for the meeting had been changed to a location on the Gawler by-pass at Tarlee. P subsequently met Barrett at the pre-arranged location and Barrett gave him a magnetic stirrer. The accused Schiworski arrived while he was speaking to Barrett. Barrett introduced him to P as Gordon. P said that Schiworski expressed interest in manufacturing amphetamines with P and Barrett and that P would be required to supply hypophosphorous acid for the venture. Schiworski indicated that he could obtain whatever else was required for the manufacture of amphetamines and also suggested to P that they could get involved in other drugs including marijuana and cocaine. They arranged to meet again on 4 June 2001, at the Old Spot Hotel, Salisbury.
Following the meeting at the bypass, P telephoned Beattie and informed him of the discussions that he claims took place.
P meets Schiworski, Schaefer and Barrett at the Old Spot Hotel
P gave evidence that, on 4 June 2001, he attended the Old Spot Hotel and met Barrett and Schiworski. The accused Schaefer was with them. Schaefer was introduced to P as Klaus. Schiworski described Schaefer as a business associate.
P said that Schiworski further discussed the prospect of manufacturing amphetamines. P said that Schiworski reiterated that he could obtain all of the equipment and chemicals required to manufacture methylamphetamine except hypophosphorous acid, which P would have to supply. He claimed that he already had some of the items of equipment that were needed. Schiworski also proposed that the four attendants at the meeting participate in the manufacturing process and share the profits.
P testified that the nature of the discussions that he had with Schiworski led him to believe that Schiworski had some previous experience in manufacturing amphetamines. P also gained the impression that Schaefer knew a “little bit” about the process. P said that in the course of the meeting Schiworski and Schaefer discussed the idea of locating the laboratory in the Barossa Valley. They discussed the suitability of various properties but did not reveal who owned them. P was unable to provide any further details of the conversations, which took place on that topic.
P said that, at one point, he told Schiworski that he needed iodine to test the hypophosphorous acid that he was supposed to make. This was in fact untrue. The purpose of the request was to assess the seriousness of the proposal to manufacture methylamphetamine by determining if Schiworski and his associates had access to iodine (a required precursor). The strategy had been formulated by Beattie.
In the course of the discussions at the Old Spot Hotel a further meeting was arranged to take place on 11 June 2001 at Roulettes Tavern, Parafield Gardens. After the meeting at the Old Spot Hotel, P telephoned Beattie and informed him of the arrangement.
P meets Beattie at Thebarton
On 6 June 2001, Beattie met P in a car park at Thebarton. He received from P the magnetic stirrer that P claims to have received from Barrett. Beattie gave evidence that he instructed P to attend the meeting at Roulettes Tavern and to handover a small amount of hypophosphorous acid on the pretext that P wanted to find out if it was suitable for their purposes. In other words the acid was to be used for the purpose of a “test cook”. Beattie informed P that he would provide him with 100mls of acid to take to the meeting.
Approval of undercover operation
As a result of the information that Detective Beattie had received from P, police suspected that “ Gordon”, “Klaus” and Barrett were about to take part in the manufacture of methylamphetamine. On 9 June 2001, Superintendent Edmonds granted an approval under the UOA for P, Beattie and other police officers to participate in an undercover operation to investigate P’s claims. As I have mentioned, for reasons which are not relevant on the trial, I found that the approval was invalid.
P Meets Schiworski at Roulettes Tavern
On 11 June 2001, P met Schiworski at Roulettes Tavern. Schiworski was alone. Unknown to P, police surveillance officers observed the two men meet. According to P, Schiworski informed him that he was having trouble obtaining some of the items required for the cook but indicated that he would soon be able to supply P with the iodine. Schiworski also complained that Barrett’s excessive use of drugs made him unreliable. He said that Barrett should be cut out of the operation. Schiworski and P arranged to meet again at Carisbrook Park, Salisbury, on 14 June 2001.
P subsequently telephoned Beattie and informed him of the outcome of his alleged discussions with Schiworski.
P Meets Schiworski at Carisbrook Park
On the morning of 14 June 2001, P met Schiworski at Carisbrook Park as they had arranged. The meeting was photographed by police surveillance officers. P testified that Schiworski told him that he was still trying to obtain iodine and that he had arranged for someone (not named) to get the substance from a company called Ace Chemicals. Following the meeting, P telephoned Beattie and supplied details of his alleged discussions with Schiworski.
On the night of 14 June, Barrett telephoned P and said that he had received (from an unnamed source) a quote of $1,500 for 1.5kgs of iodine. P suggested that Barrett go to Ace Chemicals where the substance was sold at a much cheaper price. The quoted price was exorbitant. Apparently it was possible to obtain one kilogram of iodine for $240. P said that he gained the impression that Barrett, at this point, might have been operating independently of Schiworski.
Second Meeting at Carisbrook Park
P gave evidence that, on 18 June 2001, he met Schiworski again at Carisbrook Park. The police did not conduct surveillance on them. P said that they then drove, in separate vehicles, to the Parabanks shopping centre where they had coffee. Schiworski then took P to his car and gave him a small jar (100mls) of granulated iodine, which he produced from the boot. The boot also contained various items of laboratory glassware, which Schiworski indicated were to be used in the operation. P said that they arranged to meet again at the Gawler Hotel. The evidence is unclear as to the date of the arranged meeting. P then left. That afternoon P met Beattie in the city and gave him the bottle of iodine that Schiworski is alleged to have supplied.
P Meets Schiworski and Brown at the Cross Keys Hotel
P gave evidence, on the voir dire, that about one week after the second meeting at Carisbrook Park he attended the Gawler Hotel to meet Schiworski but Schiworski failed to appear. P then rang Schiworski who informed P that he was running late. Schiworski suggested that P meet him at the Cross Keys Hotel. P then drove to the Cross Keys hotel where he found Schiworski in the company of the accused Brown.
Schiworski introduced P to Brown and then proceeded to discuss with P the proposed operation. Schiworski said that they would have a site for the laboratory but did not disclose the location. Schiworski complained that they were experiencing difficulties in obtaining pseudoephedrine and said that he would contact P to let him know the date upon which the “cook” would take place.
According to P’s evidence, on the voir dire, these discussions took place in Brown’s presence but Brown did not participate in them. However, P later said, in cross-examination on the trial proper, that Brown was not present when the discussions took place. P said that he could not recall whereabouts in the hotel Brown was at the time. In light of that concession I find that Brown was not present, on P’s account, when Schiworski and P discussed the drug venture.
P meets Schiworski and Brown at the Smithfield Hotel
On the prosecution case, Schiworski subsequently rang P and informed him that the cook would take place on 2 July 2001. They arranged to meet on that day at the Kingsford Hotel, Gawler. P contacted Beattie and told him about the arrangements.
At 9.50 am on 2 July 2001 Beattie and Detective Martschink met P in the city. They gave him a bottle containing 50mls of hypophosphorous acid. Beattie deposed that he and Martschink then drove to Gawler and took up a position in the vicinity of the Kingsford Hotel. A short while later they saw P arrive at the hotel in his Nissan. P entered the hotel and left a short time later. Beattie said that as P was leaving the hotel he rang Beattie and told him that Schiworski had gone to the wrong hotel and that the venue for the meeting had been changed to the Smithfield Hotel. Beattie and Martschink then followed P to the Smithfield Hotel where they saw P meet Schiworski and Brown in the car park. The three men shook hands and then entered the hotel. Beattie saw P leave the hotel by himself approximately one and a half hours later.
On the voir dire P gave evidence of discussions that he had with Schiworski inside the Smithfield Hotel. He said that Schiworski told him that he was having difficulty obtaining enough pseudoephedrine to make the cook worthwhile. P said that Schiworski informed him either during the meeting or in a later telephone call, that the cook would take place on 4 July 2001. P said that they arranged to meet that day near Hamley Bridge.
On the voir dire P said that he could not recall Brown being present at the Smithfield when he met Schiworski. I find that P was mistaken in that regard. Both Beattie and Martschink saw Brown enter the hotel with Schiworski and P. Furthermore, on the trial proper, Mr Dibden counsel for Brown put to P in cross-examination that Brown was with Schiworski when P met him at the Smithfield Hotel but that Brown was not present when Schiworski and P had discussions about the proposed drug venture. In other words that Brown was in another part of the hotel when those discussions took place. P agreed that that might have happened.
Count 1: 4 July 2001
P gave evidence that on 4 July he drove to Hamley Bridge with the bottle of hypophosphorous acid supplied by Beattie. He said he met Schiworski and Brown at Hamley Bridge. They were in Schiworski’s Commodore. He then followed them to Schaefer’s property. Schaefer was present when they arrived.
The four of them then went inside the house where they had a cup of coffee and engaged in general conversation. P took with him the bottle of hypophosphorous acid that Beattie had given him. P said that in the course of the conversations inside the house he heard the accused Schiworski and Schaefer discuss Brown performing the role of a lookout in front of the house whilst gardening. P said that Brown was later given a mobile phone by Schiworski so that he could inform his co-accused if anything was wrong.
P said that he and the three accused subsequently went to a shed on the property. The shed was situated in a paddock behind the house. A line of trees separated the house from the paddock. The shed was divided by an internal wall. P said that the eastern section of the shed, which was closest to the house, contained gardening tools and the like. A sliding door was located on the southern side of the shed. Inside the sliding door and immediately to the left of it was a door in the internal wall that provided access to the western end of the shed.
P’s evidence disclosed that he was taken into the western section of the shed where he saw tables and chairs and several cardboard boxes containing chemicals and laboratory equipment. He also saw empty packets of Sudafed and similar pharmaceutical products. Tablets from the packets had been crushed prior to his arrival and were soaking in methylated spirits so that pseudoephedrine could be extracted from them. P said that he then began assembling the laboratory equipment, with Schiworski’s assistance, while Schaefer searched for a bucket to carry water to the shed. There was no plumbing connected to the shed and water was required for the manufacturing process.
Brown subsequently left the shed to carry out his duties as a lookout. P said that for most of that day Brown remained outside but occasionally called into the shed to see what was happening.
On the voir dire P gave the following evidence in chief in relation to Brown’s role as a look out:
Q.    Do you remember what was said about that topic.
ANot in detail, but the general – the general inference was that Daniel was to act as a lookout through out the property and he was given one of the mobile phones to go out and look around the property and just look like he’s cleaning up and doing gardening.
Q.    Who gave him the mobile phone.
A.    As I recall, it was Gordon.
Q.Where any instructions given to him about how to use the mobile phone, or who to ring in case someone came up.
A.He was to ring – I think he was to ring Klaus if he saw something that was untoward.
Then later in cross-examination on the voir dire:
Q.You have given evidence that once you were getting everything set up, that Mr Brown started going out to go and look around the property to keep a look-out. Do you remember saying that.
A.    That’s correct.
Q.    So he didn’t have any role in the assembly procedure of the glassware.
A.No, he was basically sent out, and he basically stayed in the garden most of the time, doing gardening.
Q.    He was actually gardening, wasn’t he.
A.    That’s correct.
Later still:
Q.    If I am right, if you can tell me, the shed is sort of split into two, isn’t it.
A.    That’s correct.
Q.    There is a dividing wall.
A.    That’s correct.
Q.What is in the portion of the shed, if you can remember, or what was, on the day of the first cook in the portion of the shed where you were not doing the cook.
A.    Lots of junk.
Q.    Tools and things.
A.    Yes.
Q.    Wheelbarrows, pitchforks, that sort of stuff.
A.Correct.
Q.Mr Brown was really coming and going in that portion of the shed, wasn’t he.
A.    That’s correct. I don’t dispute that.
Q.You were asked specifically though about Mr Brown being a look-out by Mr White at p.100 line 23, ‘How were you aware, or now did you come to the view that Daniel Brown was to go outside and keep a look-out’ and you said ‘That was discussed’.
A.    That was discussed between Mr Schiworski, myself, Klaus and him.
Q.You said you were asked where was that discussed. You said initially inside the house.
A.    That’s correct.
Q.You were asked ‘Do you remember what was said about the topic’, and you answered ‘Not in detail, but the general inference was that Daniel was to act as a look-out throughout the property, and he was given one of the mobile phones to go out and look around the property, and just look like he’s cleaning up and doing gardening’.
A.    Not look like. He was actually doing gardening as well.
Q.Isn’t what really happened that you were just told by either Schaefer or Mr Schiworski, that he will keep an eye out, meaning Mr Brown.
A.No, it was actually the inference was that he will go out and do the gardening, and when we went to the actual piggery, he was handed the mobile phone from either Gordon or Klaus, and said ‘You go out and ring us if there is a problem’.
P was further cross-examined by Mr Dibden on the trial about Brown’s alleged role as a lookout. It is sufficient to say that the evidence which P gave was substantially consistent with his testimony on the voir dire.
I return to the narrative in relation to the events inside the shed. P said that while he finished assembling the laboratory, the accused Schaefer and Schiworski continued with the pseudoephedrine extraction process. He said that they added more crushed tablets to methylated spirits, filtered the solution, poured the remaining liquid into shallow glass (pie) plates and then boiled the liquid in a microwave oven. The pseudoephedrine residue was then dried with an electric fan. P said that at one point Schaefer left the property to borrow a ph meter from a friend to test the acidity of the residue.
P said that he then attended to the next phase in the manufacturing process which involved combining measured amounts of pseudoephedrine and iodine to the hypophosphorous acid that Beattie had given him. The chemicals were mixed in a round bottom glass flask that was fitted to a retort stand above a gas cooker. The solution was then “refluxed” to produce methylamphetamine in liquid form. That process involved slowly heating the solution until it reached boiling point. The resultant vapours were then returned to liquid form (methylamphetamine oil) with the aid of a water-cooled condenser. The liquid was returned to the flask and subjected to further refluxing. P said that he and Schiworski watched the refluxing process, which lasted for about one and a half hours. Schaefer was in and out of the shed during that period.
P explained that the next stage in the operation involved adding caustic soda to the liquid and purifying it by a process called steam distillation. He said that the distillation procedure required the use of an apparatus called a “steam head”. However, the accused Schiworski and Schaefer did not have one. P was then forced to make a substitute from a piece of plastic. The remaining liquid was then subjected to steam distillation. I gained the impression from P’s evidence, that the reflux and distillation processes were principally (if not entirely) conducted by him.
The final stage involved converting the purified methylamphetamine oil into salt or powder form by adding hydrochloric acid and acetone to the oil and slowly drying it on plates in the microwave oven. That work was performed by the accused Schiworski and Schaefer and P. P said that at one point they realised that they were short of acetone and either Brown or Schaefer left the property to purchase more acetone. On the trial proper P, when cross-examined by counsel for Brown, agreed that it was more likely to have been Schaeffer who acquired the additional acetone.
P said that the drying process was completed inside the house because it was getting dark. In cross-examination P agreed that while they were working in the kitchen one of the plates upon which methylamphetamine oil was drying broke causing the oil to spill onto the floor. The remaining oil was dried and converted into powder form. P said that Schaefer and Schiworski then “cut” the product with Epsom salts and Glucodin.
P said on the voir dire that the product was evenly divided between himself, Schaefer and Schiworski. He estimated that they each received about three grams. However, in cross-examination, he agreed that he told the police later that night that the drug was split four ways and accepted that Brown might also have received a share of the product. Later, when cross-examined by Mr Dibden on the trial proper, P said that Brown did not receive a share of the product.

On the voir dire P said that an agreement was reached to conduct another cook once the group had obtained more pseudoephedrine. He said he left the property some time after 7-8pm and drove in to the city where he met Beattie and Martschink. Beattie testified that P reeked of chemicals. P gave the police officers his “share” of the methylamphetamine and returned what was left of the hypophosphorous acid. Beattie estimated that about 25mls of the hypophosphorous acid had been used.
Beattie gave evidence that he weighed and tested the powder later that night. The powder weighed 3.5 g (one-eighth of an ounce). The analysis revealed the presence of methylamphetamine. The powder was subsequently analysed at the Forensic Science Centre by Dr Pigou at the Forensic Science Centre. He found that the powder weighed 2.85g and contained 0.77g of pure methylamphetamine. It would seem that some of the drug was destroyed during the test conducted by Beattie.
The period between 4 July 2001 and 2 August 2001
P and Beattie gave evidence that on about 6 July 2001, at a meeting in the city, P gave Beattie two sketches of plans of the shed on Schaefer’s property (exhibits VDP3 and VDP4) The plans assume significance, on the prosecution case, for reasons that I will come to later.
P gave evidence that Schiworski remained in telephonic contact with him during the ensuing weeks. Schiworski discussed with P the possibility of accessing at least 100g of pseudoephedrine, which could be converted into 200g of methylamphetamine. P testified that 1g of methylamphetamine at that time was worth about $200.
P said that during subsequent discussions Schiworski complained that he was having difficulty obtaining a sufficient quantity of pseudoephedrine and disclosed that he was trying to acquire pseudoephedrine pharmaceutical tablets through associates. He did not name them. On the prosecution case, Schiworski, eventually organized for the second cook to proceed on 2 August 2001 and arranged to meet P at the Tarlee Hotel on that day.
On the afternoon of 31 July, P met Beattie in the city to discuss the operation. In the course of those discussions Beattie instructed P to leave Schaefer’s property, on 2 August, at about 3-4 pm and suggested that he provide the accused with an excuse for leaving the property at that time. Beattie testified that he wanted P to leave the property well before police officers moved onto the property to arrest the accused.
Count two: 2 August 2001
At about 10.30am on 2 August 2001, P met Beattie and Jeffries at the Gawler Hotel. Beattie gave him two bottles of hypophosphorous acid. Each bottle contained 100mls of acid.
P then drove to the Tarlee Hotel, where he met Schiworski and Brown who had driven there in Schiworski’s commodore. P said that Schiworski told him that they had only been able to obtain a small amount of pseudoephedrine. He was told that the process of extracting the pseudoephedrine from pharmaceutical tablets had already commenced. P then followed Schiworski and Brown to Schaefer’s property.
A short while after leaving the hotel P sent an SMS message to Beattie’s mobile phone. He informed Beattie that the group had only a small amount of pseudoephedrine and that he would divide the manufacturing process into two small cooks. P said that he formulated the idea of conducting two small cooks because he believed that there would be insufficient time to complete one large cook by the time he was required to leave the property. He hoped to complete one small cook and get another one underway by the time he had to leave.
P and the two accused Schiworski and Brown arrived at Schaefer’s property at 12.30pm. The premises were under police surveillance at the time and remained under surveillance until the accused were arrested at about 7.15pm. I shall summarise the observations of the surveillance officers a little later. The following is a summary of P’s evidence as to the events that took place whilst he was on the property.
P’s evidence
P said that upon his arrival he went to the shed with Schiworski and Brown carrying one of the bottles containing hypophosphorous acid. He said he left the other bottle of hypophosphorous acid in his car. He first saw Schaeffer in the vicinity of the shed clearing out some rubbish. On the trial proper, P said that Schaeffer later burnt the rubbish, which included cardboard boxes and empty Sudafed packets, a short distance from the shed. He later conceded in cross-examination that it might have been Brown who lit the fire.
P said that when he entered the shed he saw pseudoephedrine tablets soaking in a container. He also saw pseudoephedrine that had been extracted and dried prior to his arrival. Otherwise the laboratory was set up in substantially the same way as he had last seen it. P said that he then proceeded to manufacture methylamphetamine with assistance from Schiworski and Schaefer while Brown, for most of the time, acted as a lookout at the front of the premises. He said that Brown came into the shed from time to time and watched what they were doing. He said that Brown came into the shed on more occasions than he had on 4 July 2001.
On the trial P elaborated on Brown’s role. In evidence in chief he said that after he entered the shed one of the accused, who he believes was Schiworski, commented that Brown would act as a lookout while gardening. However, in cross-examination, P agreed that no such comment was made on 2 August:
Q.Do you recall I was asking you questions earlier and you were saying that Mr Brown wanted to know how he could make contact and was given a phone.
A.    That’s correct.
Q.The evidence you were giving about that was in relation to the first cook, was it not.
A.    That’s correct.
Q.What I am putting to you is that there was no such conversation in relation to the second cook.
A.About the phone, there was no conversation that I was party to hearing or having discussion with.
Q.    And you didn’t see a phone handed over on that occasion.
A.    No.
Q.I am putting to you in the absence of those conversations, is it the case that you simply inferred a similar role was to be taken by Mr Brown as you say had been outlined in the first cook.
A.Well, put it this way, Brown was told to go out into the garden to start gardening because a couple of times Brown came into the shed and Schiworski said ‘You better just go back out there’.
HIS HONOUR
Q.    This is on the occasion of the second cook.
A.    That’s correct.
XXN
Q.    Is that what he said; that you better get back out there.
A.Well, I can’t say if they were the exact words, but along those lines, to stay out there.
I return to P’s account of the events inside the shed.
On the voir dire P said that Schiworski and Schaefer again attended to the process of extracting pseudoephedrine and that P was responsible for the reflux and steam distillation phases of the operation. He said that Schiworski assisted in a limited way in the steam distillation process by testing the acidity of the methylamphetamine solution with the ph meter. When the steam distillation process was completed, Schiworski applied acetone to some of the purified methylamphetamine oil that had been created and dried the substance on a glass pie plate in the microwave oven. The resultant powder was then removed from the plate with a metal scraper. P said that he did not know what happened to the powder after it was scraped from the plate.
There was an inconsistency between P’s evidence on this topic and his statement to police dated 19 August 2002. In his statement P said that the oil from the first cook could not be dried because the microwave oven was being used so it was poured into glass containers and left to be processed at a later time. In cross-examination P said that his statement was partly incorrect. He maintained that the process of drying had in fact commenced. He said that some of the oil was dried into powder form and that the remaining oil was poured into glass containers. He believed that there were three containers of oil from the first cook that were still to be processed when he left the property that day. P said that during the manufacturing process they drank beer, which Brown had left the property to obtain, and that Schiworski and Schaeffer also ingested (snorted) cocaine.
P testified that before he left, he commenced making a second batch of methylamphetamine. He combined hypophosphorous acid, iodine and pseudoephedrine in the round bottom flask and commenced refluxing the solution. He left before the reflux process was completed. He told the accused that he had an appointment and that he would return later in the day. On the trial P said that as he was leaving in his car he saw Brown in the garden at the front of the property. He was holding an object that might have been a broom and there was a wheelbarrow near him.
The evidence disclosed that P left the property at 3.27 pm and drove to a location near Hamley Bridge where he met Beattie, Jeffries and a senior Star Force officer. He gave them the unused bottle of hypophosphorous acid. Beattie and Jeffries testified that they could smell chemicals on P at the time. The police discussed with P the layout of the premises and decided to raid the premises under the cover of darkness.
Police surveillance
As I have already mentioned police maintained surveillance on the property throughout the day. The surveillance was conducted by Constables Wood and Mc Morrow of the police Star Force with the aid of binoculars and scopes. They commenced surveillance on the property at 6.45am when they took up a position at the rear of the property 462 metres south west of the shed. They remained at that location until about 5.30pm when they moved to a location approximately 150 metres south west of the shed.
As I have mentioned, the shed was situated in a paddock behind Mr Schaefer’s house and was separated from the house by a line of trees. An internal wall divided the shed into two sections. The western section contained the laboratory. The eastern section contained gardening tools and the like. A sliding door was located on the southern side of the shed. Inside the shed and immediately to the left of the sliding door was a door in the internal wall that gave access to the western end of the shed. There were also external doors on the northern and eastern sides of the shed. Those doors provided direct access to the eastern end of the shed.
Throughout the period of surveillance the police officers had an unobstructed view of the southern and western sides of the shed. Accordingly they could see people entering or leaving the shed through the sliding door on the southern side but could not see them entering or leaving the shed through the other external doors. Their view of the house was also obscured by the line of trees to which I have referred.
The police officers made observations of four persons going to and from the shed in the course of the day. They made contemporaneous notes of their observations from which they refreshed their memories. The police officers referred to the men in their evidence as male 1, male 2, male 3 and male 4. It is clear from the police officer’s descriptions of the physical appearance and clothing of the four men that they were Schaeffer, Schiworski, Brown and P respectively.
I accept the evidence given by the surveillance officers. The following is a summary of that evidence.
Between 6.45am (when the officers commenced surveillance) and 12.33pm (when P arrived) no person was seen to enter or approach the shed.
At 12.33pm P arrived in his Nissan sedan. The accused Schiworski and Brown arrived at the same time in Schiworski’s white commodore. They parked their cars in the paddock close to the line of trees. They were met by the accused Schaeffer. Schiworski, Brown and P then entered the shed through the southern door and Schaeffer walked towards the house. The officers did not see P carrying a small bottle (100mls of hypophosdphorous acid) from the Nissan to the shed as P deposed but that is hardly surprising having regard to the size of the object.
At 12.41pm the accused Brown lit a fire outside the shed near the southern door. A few minutes later Brown and Schaefer appeared at the sliding door to the shed and Brown burnt an object on the fire. These observations are consistent in a general sense with P’s evidence that a short while after his arrival at the property that rubbish, which included some empty Sudafed packets were burnt on a fire outside the shed.
At 12.50pm the accused Schaefer left the property in his vehicle and the accused Brown re-entered the shed through the southern door.
Between 12.50pm and about 1.30pm the accused Brown exited and re-entered the shed on several occasions through the sliding door. At some stage during the same period the accused Schaefer returned to the property in his car unnoticed by the surveillance team.
At 1.25pm P left the shed and walked to the vehicles. He appeared to be carrying something but the surveillance officers could not identify it. P said on the trial that he could recall going to his car on one occasion and suggested that it may have been carrying one of the bottles of hypophosphorous acid.
At about 1.32pm the accused Schaefer and Brown walked, from some unknown point, to the line of trees where the motor vehicles were parked. They remained at the vehicles for a short time. Schaefer then went into the shed and the officers lost sight of Brown. A short while later Schaefer left the shed and walked to the house.
At 1.42pm Schiworski left the shed and walked to Schaefer’s vehicle. He remained in the vicinity of the vehicle for a short time and then went back inside the shed with Schaefer who had joined him from the house. Schaefer left the shed about six minutes later and went to the house.
At 1.50pm Schaefer returned to the shed carrying a white object. P said that he had no memory of this event. A short time later the officers saw the accused Schiworski and Schaefer walking from the direction of the northern door of the shed towards the house. They returned to the shed a few minutes later and re-entered through the southern door. At the time the accused Schaefer was carrying an electric fan that the police later found inside the laboratory (see photograph 37 of exhibit VD P2). P could not recall Schaefer bringing the fan to the shed but explained that it would have been used to speed up the process of drying the pseudoephidrine that had been extracted from the pharmaceutical products.
At 2.02pm the accused Schaefer and Brown left the shed. Schaefer walked towards the house and Brown walked to where the cars were parked. At some point thereafter Brown left the property, unnoticed, driving Schaefer’s vehicle. Whilst Brown was absent from the property the accused Schaefer exited and re-entered the shed a couple of times.
At 2.46pm the accused Brown returned to the property in Schaefer’s vehicle. He alighted from the car and carried a carton of West End Draught beer into the shed through the sliding door. A few minutes later he left the shed with the carton or a similar carton and went to the house.
At 3.16pm the accused Schaefer left the shed and went to a nearby tank stand where he poured liquid from a jar. When questioned at trial about this incident P said that he could not recall any by-product from the manufacturing process having to be discarded.
A short while later Schaefer went to the house. He returned to the shed at 3.26pm and re-entered through the southern door. At the time he was carrying an object made of glass or plastic. P did not have a specific memory of this event but suggested that the object could have been one of the glass plates upon which they had dried pseudoephidrine that day.
At 3.27pm P left the property in his Nissan.
At 3.46pm the accused Brown approached the shed from the front of the property pushing a wheelbarrow. The wheelbarrow appeared to contain weeds and other garden refuse. He tipped the contents of the wheelbarrow onto the ground and then entered the shed through the sliding door. A few minutes later Brown came out of the shed and pushed the wheelbarrow towards the house and out of the police officers sight.
At 4.00pm the accused Schaefer left the shed carrying two buckets. They were carried loosely in one hand and appeared to be empty. About five minutes later Schaefer returned to the shed carrying three buckets. From the manner in which he was holding them they appeared to be full. The buckets were red, white and yellow. The police found three such buckets inside the laboratory later that day. Photographs of the buckets indicate that at least one bucket appears to contain water (see P2 –photograph 42).
At about 4.43 pm the accused Brown entered the shed through the southern door but left almost immediately and walked towards the house. Brown was seen to re-enter the shed through the sliding door about half an hour later.
At about 5.30pm the light started to fade and so the surveillance officers moved closer to the shed. At about 5.40pm they saw the accused Brown walking around outside the shed looking in various directions. At one point he walked over to where the vehicles were parked and picked up a piece of tarpaulin. For the most part he stayed in the vicinity of the shed.
Approximately half an hour later the officers saw the accused Schiworski and Schaefer leave the shed and walk towards the house. They were followed a few minutes later by the accused Brown.
At 7.15pm other police officers raided the property.
Police raid the property and arrest the accused
At 7.15pm Star Force officers forced open the front door and entered the house where they found the three accused standing in a room at the rear of the house. The accused were arrested and handcuffed. A short while later they were questioned by members of the Drug and Organised Crime Unit.
The accused Schiworski was spoken to by Detective Foulis. He was informed of his rights and then driven by police to his home at Lot 32 Koonunga Hill, Truro Road, Kapunda. The police conducted a search of his home and found an article called psychedelic chemistry (exhibit VD P18). The article contained various recipes for manufacturing amphetamines but did not include the recipe used in the present case. Nonetheless, the prosecution contends that the article is relevant because it tends to suggest an interest on Schiworski’s part in the production of amphetamines. Following the search of Schiworski’s home the police conveyed him to the Nuriootpa Police Station where he was interviewed by Detective Foulis. Upon being interviewed he exercised his right to remain silent and was subsequently charged.
The accused Schaefer was initially questioned at the house by Detective Beattie and given his rights. He was subsequently advised by another officer, Detective Smith that the police intended to search the house and asked if there were any drugs on the premises. He subsequently indicated that he had some marijuana behind the washing machine. The police then searched the laundry and located a small quantity of cannabis behind the washing machine. The finding of marijuana assumes no relevance in this case and I have ignored it. The accused was subsequently conveyed to the Nuriootpa police station where he was questioned by Detective Beattie. He also declined to answer questions.
The accused Brown was questioned at the house by Detective Reichstein. He was advised of his rights and conveyed to his home at 41 Maxwell Road, Kapunda. The police searched his home but found no incriminatory items. Several hydroponically grown marijuana plants, an unregistered sawn off rifle and two silencers were found inside Mr Brown’s home but those findings have no bearing on the issues in this case. Accordingly, I have ignored them. In the course of the search the accused was informed that the police intended to seize his clothes for forensic examination. He replied: ‘you can get all of the rose bushes and carnations off of me jacket and jeans” (referring to the clothes that he had been wearing that day).

The accused Brown was then conveyed to the Nuriootpa Police Station where Detective Reichstein had a videotaped interview with him. He told police that he went to the property that day because a friend had asked him to do some gardening there. He said that he used gardening implements and a wheelbarrow and that those items were on the property when he arrived. He claimed that he did not know who lived on the property and said that he went there, in the morning, in a car but declined to identify the owner of the car. He also declined to identify the friend who had asked him to do the gardening. He said that he had been to the property once before to do some gardening and that on that occasion he had driven there in his own vehicle. I find, consistent with P’s evidence, that the earlier attendance on the property, to which Brown referred, took place on 4 July 2001.
He maintained that he did not know that amphetamines were being manufactured in the shed and insisted that he did not act as a guard for persons engaged in any such activity.
When asked if he went into the shed he declined to answer. However, at one point he suggested that the closest he got to the shed was to burn some rubbish nearby. He also claimed that he was unaware of what was inside the shed. This answer suggested that he was not only unaware of the existence of the laboratory in the western end of the shed but that he was also unaware of the presence of tools and gardening implements in the eastern end of the shed. He told the police that he did not know how many other people were on the property that day and that he did not pay any attention to people entering and leaving the shed He said that during the day he worked at the front of the house weeding, pruning rose bushes and pulling down some dead trees. He said that he dragged dead branches and wheel barrowed other rubbish to a pit at the back of the premises where he burnt the material. He said that he never noticed whether any medication packets were amongst the material that he burnt.
In the course of the interview Brown was questioned about his knowledge of the accused Schaefer and Schiworski:
Q51Alright and I saw that there were two other persons in the lounge on the floor, the same as where you were. Is that right?
A     Hmm.
Q52   Do you know who those two were?
A     Hmm, no well, more or less.
Q53   More or less or you just don’t want to say?
A     I don’t really know them extremely well, no.
Q54   So you don’t want to say, is that what you are saying?
AWell no. I just don’t know them extremely well. Was there to do me gardening and I was inside having a smoke break and a beer.
Q55   Did you travel to the property with one of them today?
A     Rather not answer.
As my summary indicates the accused Brown chose to answer certain questions asked by Detective Reichstein but not others. It is a fundamental principle that it is not permissible to draw any inference adverse to an accused person from his failure to answer police questions. However, I raised with counsel, in the course of closing addresses, the question of whether it is permissible to draw inferences adverse to an accused person from his or her selective answering of questions. I have since had an opportunity to review the authorities. They indicate that a tribunal of fact is not entitled to draw any inference in support of an accused persons guilt from his selective refusal to answer questions: see R v McNamara [1987] VR 856 at 864-865; Yisrael v District Court ofNew South Wales (1996) 87 A Crim R 63. I direct myself accordingly.
Leaving aside for the moment the question of whether Brown was on the property to garden, whether he knew of the existence of the laboratory and whether he was linked to the manufacture of drugs on Schaefer’s property (issues to which I will return later) there are certain statements made by the accused Brown in the course of his interview which I find were lies.
As I have pointed out he suggested to the police that the closest he got to the shed was to burn some rubbish and that he did not even know that the shed contained gardening tools. The effect of those answers is that he never went into the shed for any purpose. I reject that claim. I accept the evidence of the surveillance officers that he went inside the shed on a number of occasions.
The accused Brown also claimed that he did not know Schaefer and Schiworski “extremely well”. It is possible that he did not know Schaefer very well but I have no doubt that he was a close associate of Schiworski. In my view that can reasonably be inferred from the following evidence which I accept:
·P’s evidence that Brown was with Schiworski when they met at the Cross Keys Hotel in late June 2001.
·Detective Beattie’s evidence, that the accused Brown was with Schiworski when P met the latter at the Smithfield Hotel on 4 July 2001.
·P’s evidence that the accused Brown was with Schiworski when they met at Hamley Bridge so that P could be taken to Schaefer’s property that day to manufacture of methylamphetamine.
·P’s evidence that Brown was again with Schiworski when they met at the Tarlee Hotel on 2 August 2001, for the purpose of P being escorted to Schaefer’s property, and the supportive evidence given by the surveillance officers that P later arrived at the property simultaneously with Schiworski and Brown.
The inference that they were reasonably close associates is further strengthened by evidence, in the form of telephone calls that was put before me on the trial. The prosecution, with the consent of defence counsel, tendered a chart of calls that had been made between 27 May 2001 and 2 August 2001 inclusive. The chart summarized the details of calls made from telephone services connected to the three accused, P and Ozzie Barrett. The chart revealed that 57 calls were made between the home telephones of Brown and Schiworski and that eight calls were made between Brown’s home telephone and Schiworski’s mobile phone. No calls were made between telephone services connected to Brown and Schaefer.
I have no doubt that Brown lied to the police about the extent to which he knew Schiworski. The prosecutor, Mr White, disavowed any reliance on these lies as discrete items of evidence probative of guilt. In other words the prosecution did not rely upon them as lies told out of a consciousness of guilt. That concession, in my view, was proper. There may be reasons other than a consciousness of guilt for why Brown told these lies, one of which is that he was trying to protect his co-accused. Accordingly, I have treated these lies as relevant only to an evaluation of the general credibility of Brown’s account: Edwards v The Queen (1993) 178 CLR 193 at 208-211.
The laboratory
I now turn the examination of the shed conducted by police on the night of 2 August 2001. The examination was conducted with the assistance of Dr Paul Pigou who holds the position of Principal Forensic Scientist (chemistry) with the Forensic Science Centre.
There were two benches inside the laboratory. One bench was positioned against the internal dividing wall. In other words, the eastern wall of the laboratory. I erroneously described that as the northern wall in my reasons for ruling on the voir dire. The other bench was positioned against what was in fact the northern wall.
Dr Pigou found that most of the laboratory equipment was assembled on the bench positioned against the eastern wall. Those items included a bowl (exhibit OW43) that contained residues of methylamphetamine and pseudoephedrine (not quantified) and a round bottom flask (OW60) which contained a crude methylamphetamine solution. The flask was clamped to a retort stand and positioned above a gas cooker.
A water-cooled glass condenser was connected to the top of the flask. The condenser was supplied with water from a plastic tub with the aid of a pump. As I have already mentioned, the police located and photographed three buckets in the laboratory at least one of which contained water. I have drawn the inference, consistent with P’s evidence, that buckets of water were ferried from the house to the shed to facilitate the cooling of the condenser and the process of steam distillation.
Mr Pigou expressed the opinion that the solution in the flask was the product of refluxing and that it was ready for steam distillation. This is consistent with P’s account that he commenced a second cook before he left the property. Mr Pigou distilled the contents of the flask and produced a quantity of salt or powder that weighed approximately 2.4g. The salt contained .24g of pure methylamphetamine. Mr Pigou said that approximately 1.2g of pseudoephedrine would have been required to produce that amount of methylamphetamine.
A microwave oven and a white electric fan were located on another table. I find that this was the fan that the surveillance officers saw the accused Schaefer carry into the shed. There was a glass pie plate (OW25) sitting on top of the oven that bore residues of methylamphetamine and pseudoephedrine. Next to the plate was a metal scraper (OW32) that had traces of methylamphetamine and pseudoephedrine adhering to it. These findings are consistent with P’s evidence, that some of the oil that resulted from the first cook was dried into powder form and scraped from a plate. The police also found a couple of other glass plates and a clear plastic container inside the shed.
A “ginseng bottle”(OW28) was also found on top of the microwave oven. The bottle contained residues of methylamphetamine and pseudoephedrine. A piece of aluminium foil was located near the ginseng bottle. There were also residues of methylamphetamine and pseudoephedrine on the foil. The residues were consistent with methylamphetamine powder having been placed in the bottle and on the foil.
Dr Pigou also found a plastic bottle (OW19) on a window ledge in the shed. The bottle contained 50mls of liquid consisting of a mixture of ethanol (methylated spirits) and pseudoephedrine. The contents of the bottle were consistent with the process of extracting pseudoephedrine from pharmaceutical tablets using methylated spirits. Dr Pigou said that the amount of pseudoephedrine in the bottle would have produced about one half to one gram of methylamphetamine.
Dr Pigou also located within the shed all of the equipment, precursor chemicals and cutting agents, that were required to process methylamphetamine using the methods that P said were employed. The chemicals located included 2kg of granulated iodine, which could produce 600g of methylamphetamine if similar quantities of pseudoephedrine and hypophosphorous acid were available. However, there was no evidence of substantial quantities of pseudoephedrine having been produced on the premises.
In addition to the pseudoephedrine that I have already mentioned only a handful of empty packets of pseudoephedrine based pharmaceutical products were located. Two packets were found in Schaefer’s motor vehicle, one packet was found in Schiworski’s motor vehicle and another empty packet was found in the kitchen. It would seem from Mr Pigou’s evidence that those packets would have produced only several grams of pseudoephedrine.
In the course of the search Mr Pigou found on the kitchen bench inside the house a piece of alfoil that contained .11 grams of cocaine. A rolled up bank note was found nearby. These findings were consistent with P’s account that the accused Schiworski and Schaefer had ingested cocaine during the day. The residues of methylamphetamine powder found inside the shed on the pie plate (OW19), and the metal scraper (OW32) and in the ginseng bottle (OW28) and bowl (OW43) were also consistent with some person or persons having ingested methylamphetamine prior to the arrival of the police.
The laboratory equipment was examined for the presence of fingerprints. Only five fingerprints were located which had sufficient detail to enable them to be used for comparison purposes. Two fingerprints were consistent with the left ring finger and left thumb of Schaefer. Those two fingerprints were located on a separating funnel that had not been used in the manufacturing process on that day. The other three fingerprints did not belong to Schaefer, Schiworski or Brown.
Other items located on the property included a scanner (OW38) which was found on the bench in the laboratory against the eastern wall. According to P the scanner was used to tune into police radio communications during the manufacturing process. The police also located a fully loaded Smith and Wesson revolver inside Schaefer’s car.
Forensic Procedures
Following the interviews at the Nuroiootpa police station fingernail scrapings and swabs were taken from the hands of each accused. Those samples were later analysed by Mr Peter Felgate a forensic scientist. His statement reveals that he found:
·methylamphetamine, pseudoephedrine and ephedrine in the fingernail scrapings from Schiworski’s left hand;
·ephedrine and pseudoephedrine on the swab taken from Schiworski’s left hand;
·ephedrine and pseudoephedrine in the fingernail scrapings from Schiworski’s right hand;
·pseudoephedrine on swabs from Mr Schaefer’s left hand and right hand and in fingernail scrapings from his right hand.
He did not find any incriminating substances in the samples collected from Brown.
The clothes that were being worn by the accused at time of their arrests were seized by police and examined by Dr Pigou. He found no evidence of chemicals on their clothing. On the voir dire Dr Pigou said that this did not mean that the accused had not been intimately involved in the manufacturing process but rather “that they didn’t spill anything on themselves in a quantity that was visible”.
Some legal directions
Before I turn to discuss my findings I remind myself of the law relating to the issues in this case.
Elements of the offence
First the elements of the offence. Pursuant to s32(1)(b) of the CSA it is an offence to knowingly take part in the manufacture of a drug of dependence or a prohibited substance. Methylamphetamine has been declared a drug of dependence by the Controlled Substances (Poisons) Regulations 1996.
For an accused person to be found guilty of taking part in the manufacture of methylamphetamine the prosecution must prove beyond reasonable doubt:
·that the accused intentionally took part in the manufacture of a substance;
(Pursuant to s 32(4) of the CSA a person takes part in the manufacture of a drug if the person, inter alia, takes, or participates in, any step, or causes any step to be taken, in the process of that manufacture; or provides the premises in which any such step is taken, or suffers or permits any such step in that process to be taken in premises to which he or she is the owner, or in the management of which he or she participates).
·that the substance was methylamphetamine; and
·that the accused knew that the substance was methylamphetamine or that it was a substance prohibited under the law relating to illegal drugs: R v Frangos (1979) 21 SASR 331.
In the present case the prosecution contends that, in relation to each of the charged offences, the accused Schaefer and Schiworski each knowingly took part in the manufacture of methylamphetamine by assisting in the cooking process and, in the case of Schaefer, by permitting his property to be used as the site for the laboratory. Furthermore, in relation to the first count, Schiworski assisted P to assemble the laboratory equipment. Plainly, if I am satisfied of those allegations beyond reasonable doubt the accused Schaefer and Schiworski would be guilty of each of the charged offences.
Complicity
The prosecution case against the accused Brown is different. It is not suggested that Brown physically participated in the manufacturing process but rather that he is guilty of each offence because he was a party to a joint enterprise to commit the charged offences and that he played his part, on each occasion, by acting as a look out for police.
The relevant principles governing joint enterprise were summarized by Hunt CJ in R vTangye (1997) 92 A Crim R 545 at 556 in a passage approved by the Court of Criminal Appeal in R v Kostic and Stefanopoulos [2004] SASC 406:
1.The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
2. A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed.
3.A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
4.If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.
Thus, in relation to each charge, in order to prove guilt of the accused Brown it is necessary for the prosecution to prove beyond reasonable doubt:
·that the alleged crime was committed;
·that Brown was a party to a joint enterprise with the actual perpetrators i.e. on the prosecution case Schaefer and Schiworski;
·that the joint enterprise included the commission of the crime charged; and
·that the accused Brown was present at, or in the vicinity of, the scene of the crime and, with knowledge that the crime was being committed, intentionally assisted or encouraged the other participants in the joint enterprise to commit the crime.
Though not argued by the prosecutor, the Crown case against the accused Brown, if accepted, gives rise to an alternative basis of liability namely complicity as an aider and abettor in that he is said to have intentionally assisted his co accused by acting as a lookout.
Indeed, it seems to me that the prosecutions introduction of the doctrine of joint enterprise was unnecessary. Where the prosecution is able to establish that the accused was present at or in the vicinity of the scene and does not suggest that he physically participated in the commission of the offence, it will usually be sufficient and less confusing for the prosecution to assert that the accused was an aider and abettor. In particular, reliance on this form of complicity eliminates the need to prove the existence of an agreement to commit a crime: see R vStokes and Difford (1990) 51 A Crim R 25 at 35-37 per Hunt CJ; R v Clough (1992) 28 NSWLR 396 at 400 per Hunt CJ and R v Tangye (1997) 92 A Crim R 545 at 556 per Hunt CJ.
I remind myself of the principles relating to aiding and abetting. The general principle is that no person may be convicted of aiding or abetting (assisting or encouraging) unless knowing all the essential facts which made what was done a crime he intentionally aided or abetted the acts of the principal offender: Giorgianni v R (1985) 156 CLR 473 at 487-8 per Gibbs CJ.
As with the doctrine of joint enterprise mere presence at the scene of the crime and knowledge of the crime is not sufficient for criminal responsibility. In the case of aiding and abetting the accessory must assist or encourage the principal by a positive act. Being a mere passive spectator of a crime is not sufficient though deliberate presence at the scene may constitute evidence of an intentional encouragement: see R v Russell [1933] VLR 59; Jones and Mirrless (1977) 65 Crim App R 250; R v Clarkson [1971] 1 WLR 1402; R v Bland [1988] Crim LR 41. Clearly intentionally acting as a lookout would constitute a sufficient basis for liability.

First, Detective Beattie and P gave evidence that on or about 6 July 2001 (just over three weeks before the police raided the property and discovered the laboratory) P gave Beattie two sketch plans of the accused Schaefer’s shed. In my view the plans show that P had esoteric knowledge of the layout of the shed and the set up of a laboratory within the shed at that time. In other words he could only have been gained that knowledge by viewing the interior and exterior of the shed and seeing items of laboratory equipment within it.
The first plan (exhibit VD P3) consisted of two pages. On the first page P had sketched the exterior of the building. With a reasonable degree of accuracy he had marked the location of the external doors and windows and the location of a water tank on the roof of the shed. He had also correctly described the materials from which the building was constructed (Besser blocks and corrugated iron).
On the second page P had drawn a floor plan of the interior of the shed showing, once again with reasonable accuracy, the location of the external doors and windows and the position of the internal wall that separated the eastern and western sections of the shed. He also accurately described the construction of the floor (concrete) and the location of a trench that ran through the centre of the shed and correctly indicated that the trough was covered with wooden planks.
In the western section of the shed (where the laboratory is said to have been set up) P had marked the locations of two benches. He had indicated that one bench was positioned against the internal wall of the shed (the eastern wall of the laboratory) and that the other was adjacent to the northern wall. As I have already mentioned the police found two benches in the laboratory when they raided the property on 2 August 2001 (see photographs 29 and 30 of exhibit P2). Furthermore they were in the locations indicated by P on the plan.
The second plan (exhibit VDP4) also consisted of two pages. One page contained a note written from P to Detective Beattie. The note does not assume any significance. On the other page P had sketched the interior of the western section of the shed (the laboratory) and the locations of the two benches. He also indicated where chemicals were located.
On one bench P had drawn the positions of a pump, a water trough, a gas burner and a reflux vessel and on the other bench wrote the words “micro waves & fans for drying” to indicate that such items were on the bench. When the police inspected the laboratory on the night of 2 August 2001, they found on the bench adjacent to the internal wall a pump, a water trough, a gas burner and a round bottom flask used for refluxing. Those items were in the positions indicated by P on the plan VD P4. They also found a microwave oven and an electric fan on the second bench as indicated by P.
If P had not seen the exterior and interior of shed on Mr Schaefer’s property before he gave Beattie the plans on 6 July how could he have described the construction of the shed? How could he have drawn a floor plan of the shed with such accuracy? If there was no laboratory set up inside the shed at the time, is it mere coincidence that the police subsequently found equipment of the type described by P and in the locations indicated by him?
In his closing address Mr Retalic conceded that the plans drawn by P bore sufficient similarity to the layout of the shed to indicate that P had been there but insisted that that was all that the plans showed. I disagree. The evidence confirming P’s description of the items of equipment and their positions in the shed serves to support P’s account that there was a laboratory in the shed at the time he drew the plans. To my mind, the objective facts concerning the construction and layout of the shed and the set up of the laboratory, as discovered by the police on 2 August 2001, illustrate that at the time of drawing the plans P had esoteric knowledge of those matters: see R v Duke (1979) 22 SASR 46 at 52.
The second item of evidence which serves to support P’s account consists of the observations made by the police surveillance officers on 2 August 2001. Constable Wood and Constable McMorrow had the shed under constant surveillance from 6.45am until 7.15pm when the accused were arrested. They did not see anyone enter the shed before P arrived less still see anyone carry laboratory equipment into the shed. In my view their observations tend to support P’s account that the laboratory had been set up before he arrived at the property on that second occasion. It is true that from their position they could not see all of the entrances to the shed. But it strikes me as improbable that they would have failed to have seen someone walking in the general direction of the shed carrying a substantial amount of laboratory equipment.
The third body of material supportive of P’s account consists of inferences that can be drawn from the involvement of Schiworski and Schaefer in count 2. In my opinion, the use of the evidence relating to count 2 for the purposes that I am about to explain does not depend on propensity reasoning and, accordingly, does not have to pass the exclusionary test expressed in Pfennig.
First, as against Schaefer, the evidence proves that Schaefer was willing to allow his property to be used as a site for the production of methylamphetamine. This serves to rebut the notion that, in relation to the manufacture said to have taken place on 4 July 2001, Schaefer would not have permitted such a thing to happen on his property. It serves to show that Schaefer would have been willing to allow P and Schiworski to use his shed for the purpose of methylamphetamine production: see R v Long and McDonnell (2002) 137 A Crim R 263 at 269 [35] per Doyle CJ.
Second, as against both Schiworski and Schaefer, the evidence throws light on the nature of their relationship with P. Their involvement in count 2 shows that they knew P and would sufficiently trust him to enlist his services to produce drugs: see R v Long and Mc Donnell (above) at [36] per Doyle CJ.
Third, as against both accused, proof that P had helped Schaefer and Schiworski to manufacture methylamphetamine on 2 August 2001 gives added significance to the evidence that shows that P had attended Schaefer’s property on 4 July. It tends to rebut any claim that P’s attendance at the property was not related to drug production. It serves to rebut innocent association: R v Long and Mc Donnell (above) at [36] per Doyle CJ and R v Conley (1982) 30 SASR 226 at 230 per King CJ.
Fourth, as against both accused, the evidence was relevant to show that between them they could access all the chemicals and equipment required for the manufacture of methylamphetamine. In other words the evidence serves to show that they had the means to do what they are alleged to have done on 2 July: see R v Palaga (2001) 80 SASR 19 at [52] per Doyle CJ.
Finally, as against both Schaefer and Schiworski, the evidence shows that they had an interest in producing methylamphetamine whether for commercial purposes, personal use or both. This is the same as the use to be made of the chemistry article found in the home of the accused Schiworski: see R v Palaga (above) at [52]:also see R v Long and Mc Donnell at [35].
In my opinion, the combined weight of these inferences and the circumstantial evidence discussed above corroborate P’s allegation that Schiworski and Schaefer took part in the manufacture of methylamphetamine on Schaefer’s property on 4 July 2001.
It may be that the inferences to be drawn from their participation in count 2 would not be corroborative, for the purposes of the accomplice rule, if proof of their involvement depended on an acceptance of P’s allegations. As I have previously mentioned evidence must come from a source independent of an accomplice in order to be corroborative. But I am of the view that the circumstantial evidence presented by the prosecution in relation to count 2, that is the evidence independent of P’s testimony, is sufficient to establish the guilt of Schaefer and Schiworski and to provide a platform for the corroborative inferences which I have identified.
Although P’s account in relation to count 1 is corroborated I have carefully assessed his evidence having regard to all of the factors relevant to an evaluation of his credibility and reliability. Taking into account all of those matters and the independent circumstantial evidence I am satisfied beyond reasonable doubt that P told the truth and that the prosecution has proved the guilt of Schaefer and Schiworski in relation to count 1.
I would have reached that conclusion even if my characterisation of the independent circumstantial evidence, as technically corroborative, was incorrect and I was required to give myself a traditional corroboration warning that it would be “dangerous” to convict. Whether technically corroborative or not the independent circumstantial evidence serves to support P’s account. Furthermore, even if it was not permissible to have regard to count 2, for any or all of the purposes that I have my identified, I would be satisfied beyond reasonable doubt of the guilt of both Schaefer and Schiworski having regard to P’s evidence and the other supportive circumstantial evidence.
In summary, in relation to count 1, I am satisfied beyond reasonable doubt that the accused Schaefer permitted his property to be used as a site for the manufacture of methylamphetamine, that the accused Schiworski assisted P to assemble the laboratory on the day in question and that both accused participated in the manufacturing process in the manner described by P knowing that they were involved in the production of methylamphetamine.
I find both the accused Schiworski and Schaefer guilty of count 1.
I should make it clear that I am also satisfied beyond reasonable doubt that P gave truthful evidence in respect of all the meetings that took place between himself and the accused Schaefer and Schiworski prior to the date of the first offence.
Brown
I turn to the accused Brown. Consistent with Brown’s statements to the police and P’s evidence I find that Mr Brown attended Schaefer’s property on two occasions namely on 4 July 2001 and 2 August 2001. At the outset I should make it clear that I accept that Brown performed gardening work on Schaefer’s property on each of those occasions. The critical issue in relation to Brown is whether he performed that work to disguise his role as a look out as the Crown contends.
In support of its contention that the accused Brown was a participant in a joint enterprise to commit the charged offences the prosecution relies, in part, on the fact that Brown was with Schiworski when P met him at the Gepps Cross Hotel in late June 2001 and when they met again at the Smithfield Hotel on 4 July 2001. The prosecution argued that it is reasonable to infer from Brown’s presence at these meetings that he was, unbeknown to P, a party to Schiworski’s plan to manufacture drugs.
Mr Dibden, on the other hand, argued that no such inference could safely be drawn. In relation to the meeting at the Gepps Cross hotel he pointed to P’s evidence that Brown was not present, but in another part of the hotel, when P and Schiworski discussed the plan to manufacture drugs. How that came about was not covered in examination in chief, cross examination or re examination. I do not know whether, for example, Brown was asked by Schiworski to leave them alone for a while or Brown did so of his own volition. The evidence is somewhat unsatisfactory in that regard.
Mr Dibden also pointed to P’s evidence concerning the meeting at the Smithfield hotel. Though P could not recall Brown being present at the meeting he agreed with Mr Dibden that Brown would not have been present when P and Schiworski had further drug related discussions on that occasion. On the face of P’s evidence it would seem that, once again, Brown, for some reason, was in another part of the hotel. How that came about is also unclear.
Be that as it may I accept P’s evidence. I find that Brown was not present when P and Schiworski discussed the plan to manufacture drugs both at the Gepps Cross Hotel and the Smithfield Hotel. But it does not necessarily follow that Brown was not a party to Schiworski’s plans or that he did not know, at the very least, that Schiworski intended to manufacture drugs with P. P’s evidence about the meetings is consistent, for example, with Brown leaving P and Schiworski alone because he knew from previous discussions with Schiworski that Schiworski wanted to discuss the drug venture with P in private or because he had been earlier asked by Schiworski to move around the hotel to ensure that they were not being watched or followed.
In short, I am not prepared to draw from the evidence relating to these two meetings, standing alone, the inference for which the prosecution contends. But, on the other hand, I do not think that Brown’s absence from the drug related conversations necessarily points to innocence. These meetings however do not stand alone. On the Prosecution case, they gain added significance from the following events.
In relation to count 1, P testified that, on 4 July 2001, Brown was with Schiworski when Schiworski met him met at Hamley Bridge and escorted him to Schaefer’s property in order to conduct the cook. In respect of count 2, P gave evidence that Brown was again with Schiworski when they met at the Tarlee hotel, on 2 August 2001, for the purpose of P being taken to Schaefer’s property to conduct the second cook. In relation to the second count, P’s evidence is supported by the surveillance officers who saw P, Schiworski and Brown arrive at Schaefer’s property, simultaneously. Although there is no evidence independent of P’s evidence in relation to the meeting at Hamley Bridge I am satisfied that P has told the truth about both meetings.
I find Brown’s presence at these meetings difficult to reconcile with his assertion that he went to Schaefer’s property only to garden. If that was his sole purpose it seems unusual that he would have gone out of his way to accompany Schiworski to Hamley Bridge, on 4 July 2001, and to Tarlee, on 2 August 2001. It must also be remembered that Schiworski met P on each of these occasions for the purpose of escorting P to Schaefer’s property to manufacture illicit drugs. Plainly it was in the interests of Schiworski and Schaefer that their involvement in the drug operation be known only to persons who were either participants in the operation or trusted confidants. To my mind the fact that Brown accompanied Schiworski on these two important occasions, when P was escorted to Schaefer’s property, strongly indicates that the accused Brown was at least aware of the existence of the operation but was regarded by his co-accused as someone who could be trusted not to disclosed their criminal activities.
That finding is reinforced, at least in respect of count 2, by the observations of the surveillance officers. Following P’s arrival at the property on 2 August 2001, the police officers saw Brown, Schiworski and P meet Schaefer and then enter the shed. Thereafter, they saw Brown enter and leave the shed (through the southern sliding door) on multiple occasions both before and after P left the property.
Mr Dibden submitted that because the surveillance officers did not see Brown enter the laboratory through the internal door that it is possible that he entered the shed, on these various occasions, to access tools in the eastern section of the shed or to perform some other work related to gardening. This argument does not impress me. I do not believe, that Brown stayed in the eastern section of the shed on every occasion he ventured into the shed for the following reasons.
First there was never an occasion when the surveillance officers saw Brown carrying gardening tools or equipment. The only time they saw him engaged in activities connected to gardening was at 3.26pm, some 20 minutes after P had left the property, when he dumped a load of weeds near the shed. It is true that the police officers were only in a position to see Brown enter and leave the shed through the southern door. But the fact remains that on the numerous occasions when he was seen to enter and leave the shed he never carried anything to indicate that his visit to the shed was linked to gardening.
Second, one would have thought that Brown would have been sufficiently curious to have gone into the laboratory section of the shed to see what Schiworski and the others were doing.
Third, the surveillance officers confirmed P’s evidence that, in the course of the afternoon, Brown left the property and obtained a carton of West End draught beer which he took into the shed upon his return. P said that the beers, or at least some of them, were consumed in the laboratory by himself and the others. There is no sound reason to doubt P’s evidence on this topic. Brown is unlikely to have sat in the eastern section of the shed drinking by himself. Indeed the observation of the surveillance officers establish that Brown entered the shed with a carton of beer at 2.46pm and left the shed carrying the carton a few minutes later. That suggests to me that his purpose in going into the shed was to give some of the beers to the people who were inside the shed at the time. P’s evidence that Brown entered the laboratory with the beers is further supported by the police finding West End beer cans inside the laboratory.
Furthermore, it must be remembered that the accused Schiworski and Schaefer were involved in a serious criminal escapade. As a matter of commonsense they are unlikely to have allowed Brown to freely wander in and out of the shed and to have provided him with the opportunity to find out what was going on. The freedom with which Brown moved in and out of the shed serves to indicate that he was, at the very least, aware of the laboratory and that he was trusted by the others not to disclose its existence. That inference gains added force from the fact that Brown was present with Schiworski on the various occasions that I have previously discussed
I am left in no doubt that, on 2 August 2001, Brown went into the shed from time to time to watch the manufacturing process as P deposed. I also accept P’s evidence that Brown went into the laboratory on 4 July 2001 and that he was fully aware of the manufacturing process that was conducted on that day.
But, of course, in respect of each count, Brown’s mere presence on the property and his knowledge of the manufacturing process is not sufficient for criminal responsibility under the doctrines of joint enterprise and aiding and abetting. Guilt on grounds of complicity under either doctrine requires more. So it is necessary to consider P’s evidence regarding the conversations that he claims took place in respect of P acting as a lookout.
In relation to count 1, P claimed that Brown was instructed to act as a lookout whilst posing as a gardener and that he was given a mobile phone for the purpose of communicating with the accused if there was a problem.
Mr Dibden contended that it is reasonably possible that P lied. To my mind there was nothing inherently implausible about P’s evidence on this topic. Nor did I detect any embellishment or exaggeration on the part of P. On the contrary, throughout his evidence P was careful to point out that Brown, from P’s point of view, played a very limited role in the relevant events. He said that Brown did not participate in any of the drug related conversations at the hotel meetings and that he did not participate in any drug related conversations on the occasions when he ventured into the laboratory. He also made it plain that Brown did not assist in assembling the laboratory equipment. Nor did he physically participate in the manufacturing process. I reject the suggestion that P lied. It seems to me that if he was minded to make up a story about Brown he could have done a much better job of it.

I accept P’s evidence that Brown acted as a look out on the 4 July 2001. I am satisfied beyond reasonable doubt that he performed that role either in the capacity of being a participant in a joint enterprise to manufacture drugs or as an aider and abetter.
In relation to count 2, P conceded in cross examination (another factor which to my mind points to his credibility) that no discussion took place on 2 August in relation to Brown acting as a lookout and that he was merely directed by Schiworski to leave the shed and to do some gardening and that on a couple of occasions when Brown returned to the shed, Schiworski said: “you better just go back out there”.
I am satisfied beyond reasonable doubt that P told the truth about the nature of the discussions that took place between Schiworski and Brown on this occasion. I am further satisfied that Schiworski’s remarks had nothing to do with gardening but everything to do with Brown acting as a lookout. It is true that on P’s account there was no specific reference to Brown acting as a lookout but, as Mr White argued, there was no need for Schiworski to make any such specific remark because Brown’s role was well understood by that time.
Furthermore, there can be no doubt that, by reason of the nature of their criminal activities, Schiworski and Schaeffer would have been wary of the police. Indeed, it was that concern which resulted in Brown acting, as a look out on the first occasion. Their concern about the police is also reflected in the fact that Schaefer’s scanner had been used to monitor police transmissions on 2 August 2001. The loaded pistol in Schaefer’s car might also indicate a concern about security. Bearing in mind their concern about the police, I have no doubt that the accused Schiworski and Schaefer took the precaution of having Brown act as lookout on the second occasion.
My findings in relation to the accused Brown have been reached by considering the evidence relating to the two charges separately except to the extent that the evidence of Brown acting as a lookout on count 1 is relevant on count 2 for the purpose of showing that the accused were wary of police and were prepared to enlist Brown’s services to keep nit. Used in that way the evidence on count 1 is admissible on a non propensity basis.
I am of the view, however that the evidence relating to these 2 charges is admissible on a broader basis in the case against Brown. I consider that the evidence in relation to each count is admissible in respect of the other count on the basis that, when the evidence is looked at as a whole, it is objectively improbable that Brown was not implicated in each offence. I accept that that approach involves a form of propensity reasoning and that, accordingly, the evidence would need to satisfy the exclusionary test expressed in Pfennig before it could be used in that manner. In my view the evidence does meet that test for the following reasons.
The accused Brown told the police that he had been to Schaefer’s property on only two occasions. Consistent with P’s evidence I am satisfied that Brown was referring to 4 July 2001 and 2 August 2001. As I have found, on each of those occasions methylamphetamine was manufactured in the shed by P with the assistance of Schaefer and Schiworski, the latter being a reasonably close associate of Brown. These offences, which were committed just over three weeks apart disclose a coincidence of people involved, location and conduct.
To my mind it is glaringly improbable that Brown was not involved in each of the charged offences when, on the only two occasions he attended, methylamphetamine was manufactured on the property. Putting it another way, I find that it is utterly implausible that Schaefer or Schiworski would have arranged for Brown to work on the property as a gardener on the same days that they manufactured drugs. Of all the days that Brown could have been asked to work as a gardener, Schiworski and/or Schaefer selected the days when drugs were manufactured on the property. It defies common sense that such arrangements would have been made with Brown.
The probative force of the similar circumstances in which these offences were committed gains added force from the other circumstantial evidence to which I have referred and, in particular, the following:
·Brown’s presence at the meetings between Schiworski and P at the Gepps Cross Hotel (late January 2001), the Smithfield Hotel (2 July 2001), Hamley Bridge (4 July 2000) and the Tarlee Hotel (2 August 2001);
·the observations of the surveillance officers on 2 August 2001; and
·the presence of the police scanner in the laboratory.
In my opinion, when the evidence is viewed as a whole, its cogency is such that it bears no reasonable explanation other than the inculpation of the accused Brown in respect of each offence. In other words, there is no rational view of the evidence consistent with his innocence. I am of the view that the evidence presented by the prosecution clearly meets the stringent test expressed in Pfennig: compare the facts of R v Long & McDonnell (2002) 137 A Crim R 263.
I am satisfied beyond reasonable doubt that the accused Brown acted as a look out on each of the charged occasions. In reaching that conclusion I have not overlooked the need to carefully scrutinize the evidence of P, notwithstanding the existence of material which tends to support his account. I am satisfied beyond reasonable doubt that Brown acted as a lookout either as a participant in a joint enterprise or at the very least as an aider and abetter to the principal offenders Schiworski and Schaefer.
Accordingly I find the accused Brown guilty of count 1 and count 2.