R v Schaefer, Schiworski & Brown - [2004] SADC 185

District Court of South Australia
(Criminal)
R v SCHAEFER, SCHIWORSKI & BROWN
Reasons for Ruling of His Honour Judge Millsteed
17 December 2004
CRIMINAL LAW
Controlled Substances Act 1984; Criminal Law (Under Cover Operations) Act 1995; Criminal Law Consolidation Act 1985, referred to.
Bunning v Cross (1978) 141 CLR 54; Karina Fisheries P/L v Mitson (1990) 26 FCR 473; Lego Aust P/L & Ors v Paraggio & Ors (1993) 44 FCR 151; Lego Aust P/L v Paraggio (1994) 52 FCR 542; Crowley v Murphy (1981) 52 FLR 123; R v Macleod [1990] Tas R 144; R v DeBot (1990) 52 CCC (3d); R v Hosie (1996) 107 CCC (3d) 385; R v Martelli (1995) 83 A Crim R 550, discussed.
Ridgeway v The Queen (1995) 184 CLR 19; R v Ridgeway (1998) 72 SASR 73; Ridgeway (1998) SASR 73; Question of Law Reserved on Acquittal (No. 5 of 1999) (2000) 76 SASR 356; R v Sloane (1990) 49 A Crim R 270; R v Vuckov & Romeo (1986) 22 A Crim R 10; The Queen v Veneman & Leigh [1970] SASR 506; R v Martelli (1995) 83 A Crim R 550; R v Stefan (1993) 30 NSWLR 633; R v Albu (1995) 65 SASR 439; R v Giaccio (1997) 68 SASR 484; R v Rowe (1998) 71 SASR 389; R v Karam (1995) 83 A Crim R 416; R v Bozatkis & Spanakakis (1997) 97 A Crim R 296; Johns v The Queen (1980) 143 CLR 108; Osland v The Queen (1998) 197 CLR 316; George v Rockett (1990) 170 CLR 104; Coghill v McDermott [1983] 1 VR 751; Hoobin v Samuels (1971) 2 SASR 238; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24; Propend Finance P/L v Commissioner of Australian Federal Police (1995) 128 ALR 657; Flanagan v Commissioner of Australian Federal Police (1996) 134 ALR 495; Carmody v MacKellar (1997) 148 ALR 210; Malubel P/L v Elder (1998) 88 FCR 242; Roman v The Commonwealth of Australia [2004] NTSC 9; R v Rondo (2001) 126 A Crim R 562; Hoobin v Samuels (1971) 2 SASR 238; Feldman v Buck [1966] SASR 236; Bowden v Box [1916] GLR (NZ) 443; R v Tillett ExParte Newton (1969) 14 FLR 101; Weston v Smith [1963] Tas SR 27; R v Romeo (1987) 45 SASR 212, considered.

R v SCHAEFER, SCHIWORSKI & BROWN
[2004] SADC 185
Introduction

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 methylamphetamine contrary to s.32 (1)(b) of the Controlled Substances Act 1984 (CSA). The offences are alleged to have been committed between 30 May 2001 and 5 June 2001 (count 1) and 5 July 2001 and 3 August 2001 (count 2).
The prosecution contends that the three accused took part in the creation and operation of a clandestine laboratory on a rural property, at Owen, which belonged to the accused Schaeffer. The offences resulted in the manufacture of methylamphetamine on 4 July 2001 and 3 August 2001. The accused were arrested on Schaefer’s property on 3 August 2001.
One P, whose name has been suppressed, participated in the offences. Unbeknown to the accused, P was a police informant and a participant in an undercover operation that had been approved by a senior police officer pursuant to the provisions of the Criminal Law (Undercover Operations) Act 1995 (UOA). By virtue of the operation of the UOA the approval purportedly absolved P, and other authorised participants in the undercover operation, from criminal liability in respect of their complicity in the offences committed by the accused.
When arraigned each accused pleaded not guilty to both charges. Counsel for each accused applied for the exclusion of all evidence implicating the accused and, in the alternative, for a permanent stay of proceedings on the ground that the police undercover operation was tainted by illegality and impropriety.
In particular counsel for the accused submitted:
(i)that P performed illegal acts in the course of the police undercover operation.
(ii)that the UOA approval did not indemnify P in respect of illegal acts performed by him prior to the grant of approval.
(iii)that the UOA approval did not indemnify P in respect of illegal acts performed by him after the grant of approval because the approval was invalid.
(iv)that P induced the commission of each offence by the use of improper methods of entrapment.
(v)that the police failed to adequately instruct P and to monitor his activities to prevent such improper conduct.
In addition each accused sought a stay of proceedings on the basis that his prosecution was unlawful, offended the public conscience and brought the administration of justice into disrepute by reason of the failure on the part of the prosecuting authorities to prosecute other persons associated with prior offending by P.
Pursuant to section 285A of the Criminal Law Consolidation Act 1985, I conducted a voir dire, before the empanelment of a jury, to hear and determine the applications. On the voir dire I received the depositions (except the statement of P dated 19 August 2002) 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
·Paul Pigou (a forensic scientist).
The accused did not give evidence in support of their applications. The accused Schaefer, however, called Mr Brett Galloway who gave, what might be loosely described as, character evidence.
Background facts
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. 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 he disliked P and did not trust him at that time. Despite Jeffries’ adverse opinion of P he recognised that he might prove to be a valuable informant. As a result, an arrangement was put in place that P would give Beattie any information that he wanted to pass onto the police. 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.
Jeffries and Beattie subsequently agreed that Jeffries should supervise Beattie’s contact with P. Jeffries evidence disclosed that he wanted to assume a supervisory role because Jeffries had reservations about P’s sincerity and Beattie was an inexperienced member of the DOCU. He had joined the unit a few weeks earlier.
Thereafter, Beattie dealt directly with P. Beattie recorded in an Informant Log (Exhibit VD P9B) the occasions when they met and spoke on the telephone. To put it more accurately he recorded most of the occasions when they had contact. The log also sketched information that Beattie received from P from time to time.
I have no doubt that P’s sole reason for becoming an informant was to gain a reduction of sentence for his drug offences. He 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 behaviour 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 gave in the present case.
The Scale of P’s Criminality
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. 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.
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.
I am not satisfied that 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:
(i)selling ecstasy, cocaine, LSD and heroin;
(ii)providing drugs to prostitutes employed by the escort agency in exchange for their services;
(iii)selling methylamphetamine through other persons including prostitutes employed by the escort agency;
(iv)receiving stolen goods in exchange for drugs;
(v)dealing in stolen cars;
(vi)making pornographic videos;
(vii)making threats to inflict harm on persons who owed him money; and
(viii)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.
I consider that it is probable that P retailed methylamphetamine through female associates (perhaps prostitutes). I also have reservations about his explanations for the threatening calls but the evidence does not satisfy me, on the balance of probabilities, that his explanations for the threats were false. In relation to the other allegations the evidence upon which they are based is even less convincing.
Irrespective of the precise limits of P’s criminal activities, it is clear that he is a person of unsavoury character. His criminality, his lack of candour with Jeffries on 2 February, his lack of frankness on the voir dire in relation to the allegations that I have found proved, and the fact that he was an informant intent on gaining lenient treatment from the authorities, require that I scrutinise his evidence in relation to his dealings with the accused with the greatest care.
With that warning in mind I turn to the events that resulted in the accused’s arrests.
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.
On 30 May 2001, P telephoned Beattie and told him about the meeting that he had with Barrett and his request for a magnetic stirrer. Beattie considered that the request was a reasonable tactic and instructed P to attend the meeting and directed him not to agree to any venture proposed by Barrett.
P meets Barrett and Schiworski at Tarlee
P gave evidence that Barrett telephoned him the following day 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. While he was speaking to Barrett, the accused Schiworski arrived. He was introduced to P as Gordon. Schiworski expressed interest in manufacturing amphetamines with P and Barrett. He said that P would be required to supply hypophosphorous acid. Schiworski indicated that he could obtain whatever was required to manufacture 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 had taken 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 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. Beattie testified, however, that he did not instruct P to ask the group to supply him with iodine until after the meeting at the Old Spot hotel. Beattie said that he instructed P to implement the iodine tactic at a subsequent meeting held at Roulettes Tavern. I will discuss the significance of this point later in my reasons.
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 had been given to P by 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. Beattie testified that he was prepared to supply only a small amount of acid to prevent the group producing and distributing a large quantity of methylamphetamine. P gave similar evidence on the voir dire.
Enquiries in relation to Klaus, Gordon and Barrett
Up until this point, P only knew Schaefer and Schiworski as Klaus and Gordon respectively. Between 6 June 2001 and 9 June 2001, Beattie received information from another police officer that Klaus was possibly Klaus Schaefer, that Gordon was possibly a person named Gordon Atherton and that both men had connections to the Gypsy Jokers motorcycle gang. Enquiries in relation to Barrett disclosed that he had convictions for minor drug offences that were quite old. However, in early 2000 Barrett’s wallet was located behind the Tanunda Hotel by police. It was found to contain ‘four deal bags of amphetamine”.
The rationale
Beattie gave evidence that as a result of the information that he had received from P he suspected that Schiworski, Schaefer and Barrett were about to embark on the commission of a criminal offence, namely taking part in the manufacture of methylamphetamine.
On 9 June 2001, Beattie submitted an application to conduct a covert investigation to the police Covert Investigation Unit (CIU). The CIU was responsible for conducting covert investigations including investigations that required approval under the UOA. The application, called a rationale, was prepared by Beattie with assistance from Detective Garde (a senior member of the CIU). The rationale set out the information that P had purportedly given to Beattie up until that point. The rationale, which was tendered on the voir dire (exhibit VD D19), states in part:
“The informant states on the 29^th of May 2001 he was contacted via his mobile phone by a male who only introduced himself as ‘Ozzie’. This male subsequently asked the informant whether he was interested in supplying hypophosphorous acid to him and his associates for use in a clandestine drug laboratory that is equipped for the manufacture of amphetamine. The male told the informant that they had all of the other ingredients and equipment to produce amphetamine but did not have hypophosphorous acid. To enable sufficient time for the informant to relay this information to police the informant told ‘Ozzie’ that he required some further equipment to produce hypophosphorous acid, in particular a magnetic stirrer. The informant requested this item to ascertain if the approach by ‘Ozzie’ was genuine and to enable time to seek direction from the police. The informant agreed to meet this male in Roseworthy the following day.
…
A meeting was organised by Barrett for the informant to attend at 12.30 p.m. on Monday 5.6.01 [sic] at the Old Spot Hotel Salisbury East. The informant subsequently attended at this meeting and met with two other persons known only as Klaus and Gordon. During this meeting which lasted until 5 p.m. that day the informant established that the persons present (Barrett, Klaus and Gordon) were all involved in the laboratory, which has been operating for some time and that he (the informant) had been contacted due to the fact the group had run out of hypophosphorous acid.
The informant further established that the laboratory was set up in the country however he was not advised of the exact location. He was told that all of the ingredients required to produce amphetamine had been sourced including a large quantity of Sudafed and 10kg of Iodine and that he was only required to produce hypophosphorous acid for the group.
…
The informant is now awaiting instructions from the police in relation to this matter. He is prepared to supply hypophosphorous acid to this group under police instructions…”.
On the voir dire P was cross-examined in relation to the information that he had provided Beattie during the period leading up to 9 June 2001. He disputed that he gave Beattie the information italicised above. This conflict in the evidence assumed importance on the voir dire, for reasons that I will come to later.
The undercover operation is approved
On 9 June, after Beattie submitted the rationale, Garde made an emergency application for an approval under the UOA to conduct an undercover operation. The application was made over the telephone to Superintendent Edmonds. Pursuant to s 3(1) of the UOA Edmonds approved the operation. Beattie gave evidence, which I accept, that following the grant of approval he explained to P the acts that he was authorised to perform. The approval, (exhibit VD P12), stated:

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.
Following the meeting at Roulettes Tavern P telephoned Beattie and informed him of the outcome of his discussions with Schiworski.
Further Enquiries in Relation to the Accused
On about 12 June Beattie, as a result of receiving information from P that Gordon had told him that he worked with Klaus at the Vine Inn at Nuriootpa, made enquiries with the Nuriootpa CIB to determine the identities of the two men. On 13 June Nuriootpa police gave Beattie the full names of the accused Schiworski and Schaefer.
Beattie subsequently accessed police intelligence holdings that suggested Schiworski and Schaefer had links with the Gypsy Jokers. Beattie gave evidence that he never informed P of these suspected links because he was concerned that P might withdraw from the operation. He also thought that it was unnecessary to disclose the information because P had indicated to him that he did not believe that he was in any danger.
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 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. Later in my reasons, I deal with the significance that the accused attach to this point.
That same evening, P met Beattie and Jeffries at the Alma Hotel at Norwood. Beattie and Jeffries gave evidence that they reviewed with P the strategy that had been devised. They also discussed with P the operational limitations imposed by the UOA approval, but neither Beattie nor Jeffries could remember the details of those discussions.
Second Meeting at Carisbrook Park
On 18 June 2001, P again met Schiworski at Carisbrook Park. The police did not conduct surveillance on them. P said that after meeting at the park they 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 had supplied.
P Meets Schiworski and Brown at the Cross Keys Hotel
P gave evidence 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, in Brown’s presence, the proposed operation.
According to P, Brown did not participate in the discussions. 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.
The “Test Cook” is Postponed
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 car. 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.
P gave evidence of the discussions that he had with Schiworski inside the Smithfield Hotel. He said that could not recall Brown being present at the meeting. He was clearly mistaken in that regard. P 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. Schiworski arranged to meet him on the morning of 4 July near Hamley Bridge.
The “Test Cook”
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 vehicle. He then followed them to Schaefer’s property. Schaefer was present when they arrived.
P said that, after an initial discussion with the three accused inside the house, he was taken to a shed on the property in which there were tables and chairs and several cardboard boxes containing chemicals and laboratory equipment. He saw empty Sudafed packets and containers in which crushed tablets were soaking in methylated spirits. Thus, on P’s account, the first phase of the manufacturing process (the extraction of pseudoephedrine from pharmaceutical products) was underway by the time he arrived.
P said that he then began assembling the laboratory equipment with Schiworski’s assistance while Schaefer searched for a water container. Brown was instructed, by either Schaefer or Schiworski, to act as a lookout at the front of the house and to pretend that he was gardening. P said that for most of that day Brown remained outside but occasionally called into the shed to see what was happening.
P said that while he finished assembling the laboratory, Schaefer and Schiworski completed the process of extracting pseudoephedrine. 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. At one point Schaefer left the property to borrow a ph meter from a friend to test the pseudoephedrine’s acidity.
P said that he attended to the next phase in the process, which involved combining measured amounts of pseudoephedrine and iodine to some of 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.
The next stage in the manufacturing process involved adding caustic soda and purifying the liquid by steam distillation. P explained that the distillation procedure required the use of an apparatus called a “steam head”. He said that the accused did not have a suitable steam head and so they tried to distil the product using an alternative procedure that involved the use of a separating funnel. However, the funnel was missing a clip and some of the solution was lost from the funnel. P said that they then found a piece of plastic from which P made a substitute steam head. 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. The three of them attended to the drying process. At one point they realised that they were short of acetone and either Brown or Schaefer left the property to purchase more of it. P said that the drying process was completed inside the house because it was getting dark. While they were working in the kitchen one of the plates upon which 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 that the product was evenly divided between himself, Schaefer and Schiworski. He estimated that they each received about three grams. In cross-examination P agreed that he told Beattie later that night that the drug was split four ways. He agreed that he might have been mistaken in his evidence. He accepted that Brown might also have received a share of the product. P also said that an agreement was reached to conduct another cook once the accused obtained more pseudoephedrine.
P said that he left the property some time after 7-8pm. He then drove in to the city where he met Beattie and Martschink. Beattie said that P reeked of chemicals. P gave them 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 weighed and tested the powder later that night. The powder weighed 3.5 grams (one-eighth of an ounce). The analysis revealed the presence of methylamphetamine. The powder was also analysed by Mr Pigou at the Forensic Science Centre at a later date. He found that the powder weighed 2.85 g 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 the Two Cooks
On 8 July 2001, P met Beattie and Jeffries in North Adelaide. Beattie and Jeffries gave evidence that they had had further discussions with P about the future direction of the investigation. Beattie said that they discussed “what [P] could and could not do” under the approval but he was unable to spell out the details of the instructions that he gave P. Jeffries also gave very general evidence on the topic.
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 gave evidence on the voir dire that one gram of methamphetamine at that time was worth as much as $200.
During subsequent discussions Schiworski complained that he was having difficulty obtaining a sufficient quantity of pseudoephedrine. He disclosed that he was trying to acquire pseudoephedrine pharmaceutical tablets through associates. He did not name them.
P said that he kept Beattie informed of the progress of his discussions with Schiworski. His evidence was confirmed by Beattie. Beattie said that on about 17 July 2001 P told him that Schiworski and Schaefer knew someone associated with Fauldings who could get boxes of Sudafed “through the back door”.
On the prosecution case, Schiworski, eventually arranged with P, over the telephone, for the second cook to proceed on 2 August 2001. They arranged to meet at the Tarlee Hotel on that day. P and the police anticipated that it would be a substantial cook.
On the afternoon of 31 July, P met Beattie in the city. A detective named Pedder was present. Beattie gave evidence that he explained to P the acts that he was authorised to perform under the UOA approval. He also explained that P was liable for any illegal acts that fell outside the scope of the approval. Beattie also instructed P to leave Schaefer’s property by around 3-4 pm on the day of the cook. He instructed P to provide the accused with an excuse for leaving the property at that time. Beattie explained, on the voir dire, that a plan had been formulated to arrest the accused on Schaefer’s property that day. Beattie wanted P to leave the property well before police officers moved onto the property to make the arrests.
The “Big Cook”
At about 10.30 am 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. 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. The property remained under surveillance until the accused were arrested at about 7.15pm. Upon their arrival at the property, Schiworski, Brown and P went to the shed where Schaefer was clearing out some rubbish. P took with him one of the bottles containing hypophosphorous acid. He left the other bottle in his car.

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.
It would appear from P’s evidence 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. 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 testified that before he left, he commenced cooking 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. The surveillance officers saw him leaving the property at 3.27pm.
P drove to a location near Hamley Bridge where he met Beattie, Jeffries and a senior Star Force officer. He gave Beattie the bottle of hypophosphorous acid that had not been used. Beattie and Jeffries gave evidence that P told them that one cook had been completed and that the produce from that cook had been placed in trays. He also told them that the second cook had commenced. Both Beattie and Jeffries could smell chemicals on P. The police discussed with P the layout of the premises and decided to raid the premises under the cover of darkness to reduce the risk of a confrontation with the accused.
As I have said police surveillance officers saw P leave the property just before 3.30pm. The officers maintained surveillance on the premises for the balance of the afternoon. Their statements and surveillance notes, which form part of the depositions, disclose that Schiworski and Schaefer spent a large part of the afternoon in the shed after P left. Brown also went into the shed from time to time.
Police Raid the Property
At about 7.15pm Star Force officers entered Schaefer’s house by forcing open the front door and found the three accused standing near a rear sliding door. They were arrested. A short while later, members of the Drug and Organised Crime Unit entered the house and questioned the accused. Brown said that he was working on the property as a gardener. He denied any knowledge of drug production. Schaefer and Schiworski declined to answer questions.
Police inspected the shed and found a crude laboratory. The laboratory was examined that night by the forensic scientist Mr Pigou. Most of the laboratory equipment was assembled on a table positioned against the northern wall. A round bottom flask (referred to in the depositions as OW 60) was positioned above a gas cooker. The flask was supported by a retort stand. 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.
The flask contained a crude methylamphetamine solution. Mr Pigou expressed the opinion that the solution was the product of refluxing and that it was ready for steam distillation. His finding 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 2.4 grams. The salt contained .24 grams of pure methylamphetamine. Mr Pigou said that approximately 1.2 grams of pseudoephedrine would have been required to produce that amount of methylamphetamine.
A bowl (OW 43) containing a small amount of white powder was located on the same table. The powder contained residues of methylamphetamine and pseudoephedrine (not quantified).
A microwave oven was located on another table. A glass (pie) plate (OW25), which was on top of the microwave oven, contained 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. However, no glasses or other vessels containing methylamphetamine oil were located. I will discuss the significance that the accused attach to this aspect of the evidence later in my reasons.
A “ginseng bottle”(OW 28) 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. Mr 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. Mr Pigou said that the amount of pseudoephedrine in the bottle would have been about one to two grams. That quantity of pseudoephedrine could have produced .6 grams to one gram of methylamphetamine.
Mr 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 two kg 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 above-mentioned pseudoephedrine only a small number 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 located evidence of cocaine consumption. He 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. The findings were consistent with some person or persons having inhaled cocaine through the rolled up note.
The residues of methylamphetamine powder found inside the shed on the pie plate (OW19), the metal scraper (OW 32) and in the ginseng bottle (OW28) and bowl (OW43) were also consistent with some person or persons having ingested methylamphetamine at some stage before the police arrived.
Counsel for the accused relied on this body of evidence to support their proposition that the accused were users of drugs who participated in the charged offences for the purpose of manufacturing drugs for personal consumption and not for financial gain. I will return to discuss the significance of this point later in my reasons.
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 prints did not belong to Schaefer, Schiworski or Brown.
Other items located on the property included a scanner (inside shed) which P said was used by the accused to tune into police radio communications and a loaded pistol (inside Schaefer’s car).
On the night of 2 August 2001 the police searched Schiworski’s home at Kapunda. During the search they located an article (exhibit VD P18) called psychedelic chemistry. The article contained various recipes for the manufacture of amphetamines. It is not suggested that P and the accused used any of the recipes that appear in the article. Nonetheless, the prosecution contends that the article reflected an interest on Schiworski’s part in the production of amphetamines and is consistent with P’s claim that Schiworski possessed some knowledge and experience in this area.
On 3 August fingernail scrapings and swabs were collected from Schaefer and Schiworski after they were charged. Subsequent analysis of the samples produced the following results:
·Methylamphetamine, pseudoephedrine and ephedrine were detected in fingernail scrapings collected from Schiworski’s left hand;
·Ephedrine and pseudoephedrine were found on the swab from Schiworski’s left hand;
·Ephedrine and pseudoephedrine were detected in the fingernail scrapings from Schiworski’s right hand; and
·Pseudoephedrine was detected on swabs from Schaefer’s left hand and right hand and in fingernail scrapings from his right hand.
Legal Principles Relating to Entrapment
Before I canvass the arguments put forward in support of the accused’s applications, it is convenient to state the common law principles relating to entrapment and the scheme of the UOA.
Entrapment which involves unlawful or improper conduct by police may lead to the exclusion of evidence implicating an accused person in the commission of a crime and to the grant of a permanent stay of proceedings: Ridgeway v The Queen (1995) 184 CLR 19. The discretion has its conceptual basis in the principles underlying the Bunning v Cross (1978) 141 CLR 54) discretion to exclude evidence obtained by unlawful or improper means: see Ridgeway (at 37-38) per Mason CJ, Deane and Dawson JJ. Indeed, it may be that the discretions are complementary aspects of a single judicial discretion to exclude evidence on public policy grounds: Ridgeway (at 38) per Mason CJ, Deane and Dawson JJ; see also R v Ridgeway (1998) 71 SASR 73 (at 82) per Doyle CJ.
The Ridgeway discretion differs from the Bunning v Cross discretion, at least to the extent that its focus is not upon the exclusion of a particular item of evidence obtained by unlawful conduct but upon the exclusion of all evidence of an illegally procured offence: Ridgeway (1998) SASR 73 (at 82) per Doyle CJ.
Where a ruling is made that evidence of the charged offence or of an element of the offence should be excluded, the proceedings should be stayed as an abuse of process because they are bound to necessarily fail. In those circumstances a continuance of them would be oppressive and vexatious: Ridgeway (at 41) per Mason CJ, Deane and Dawson JJ. Because the grant of relief in entrapment cases is discretionary, the burden rests on the accused to establish on the balance of probabilities the grounds for the exercise of the discretion: Question of Law Reserved on Acquittal (No.5 of 1999) (2000) 76 SASR 356 at 368; R v Sloane 1990 49 A Crim R 270 (at 273).
In Ridgeway Mason CJ, Deane and Dawson JJ (at 39) considered that there were two distinct but possibly overlapping categories of cases in which an offence has been procured by illegal conduct on the part of law enforcement officers. The first category consists of cases in which the police conduct has induced an accused person to commit the charged offence. In relation to that category of cases their Honours said (at 39):
“[T]he public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations except where the illegality or impropriety of the police conduct is so grave and either so calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice require exclusion of the evidence”.
The second category consists of cases where the illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes an essential element of the charged offence. In relation to those cases their Honours said (at 39):
“[T]he police illegality and the threat to the rule of law which it involves assume a particularly malignant aspect. Even in such a case, if the police conduct is disowned by those in higher authority and criminal proceedings have been instituted against the police as well as the accused, it is unlikely that considerations of public policy relating to the integrity of the administration of criminal justice would require the exclusion of evidence either of the accused’s offence or of the particular element of it created by the police illegality. If, however, the illegal police conduct would appear to be condoned by those in higher authority and it does not appear that criminal proceedings have been brought against the police, those considerations of public policy will be so strong that an extremely formidable case for exclusion will be raised”.
With respect to improper, as distinct from unlawful, conduct their Honours said (at 37):
“The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity.”
Their Honours went on to observe that it was neither practicable nor desirable to attempt to define the boundary between acceptable and improper police methods of entrapment (at 37):
“The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community.”
Similarly in R v Vuckov & Romeo (1986) 22 A Crim R 10 Cox J said (at 30):
“It is not desirable to introduce any kind of rigidity into this area. Certain general propositions may be made. Obviously there will be no entrapment, in the relevant sense, unless the police are someone acting on their belief incited the defendant to commit the crime with which he is charged. What the cases refer to as “ordinary solicitation” of a suspected person may not be offensive, but calculated inveigling or persistent importuning will be: see Ormorod [1969] 4 CCC 3 at 11”
Although there is no rigid definition of improper entrapment the authorities have consistently drawn a distinction between a case where the police or their agent merely afford an opportunity to the accused to commit a crime (if he or she is so minded) and one where the police or their agent beguile or seduce an unwilling accused to commit an offence: see The Queen v Veneman and Leigh [1970] SASR 506 at 508; R v Martelli (1995) 83 A Crim R 550 at 554 ; R v Sloane (1990) 49 A Crim R 270 at 272 -3; R v Stefan (1993) 30 NSWLR 633 at 643. Thus in cases where improper entrapment is alleged, the accused must usually establish both the absence of any predisposition on his or her part to commit the offence and conduct by the police which went beyond the mere provision of opportunity: R v Stefan (at 643).
The UOA
Pursuant to s 3(1) of the UOA a senior police officer may approve undercover operations for the purpose of gathering evidence of serious criminal behaviour. However, an approval cannot be granted unless there has been strict compliance with the conditions prescribed by s 3(2). That sub-section provides:
(2)     An approval may not be given unless the officer-
(a)suspects, on reasonable grounds, that persons (whose identity may – but need not – be known to the officer) are engaging or about to engage in serious criminal behaviour of the kind to which the proposed undercover operations relates; and
(b)is satisfied on reasonable grounds that the ambit of the proposed undercover operations is not more extensive than could reasonably be justified in view of the nature and extent of the suspected serious criminal behaviour; and
(c)is satisfied on reasonable grounds that the means are proportionate to the end i.e. that the proposed undercover operations are justified by the social harm of the serious criminal behaviour against which they are directed; and
(d)    is satisfied on reasonable grounds that the undercover operations are properly designed to provide persons engaging or about to engage in serious criminal behaviour an opportunity-
(i)      to manifest that behaviour; or
(ii)     to provide other evidence of that behaviour,
without undue risk that persons without a predisposition to serious criminal behaviour will be encouraged into serious criminal behaviour that they would otherwise have avoided.
The form and content of an approval is governed by s 3 (4) which states:
(4)     The approval must –
(a)    be in writing; and
(b)    be signed by the officer giving it; and
(c)specify the persons who are authorised to participate in the operations; and
(d)state the nature of the conduct in which the participants are authorised to engage; and
(e)specify the date and time the senior police officer signs the approval and the time from which it takes effect (which may be contemporaneous with or later than the time of signing but cannot be earlier); and
(f)    state a period (not exceeding 3 months) for which the approval is given.
The consequence of a grant of approval is that an authorised participant in an approved undercover operation incurs no criminal liability by taking part in undercover operations in accordance with the terms of the approval (s 4 (1)). In other words, the act operates to make lawful conduct that would otherwise be unlawful: R v Albu (1995) 65 SASR 439 at 450. If the police engage in undercover operations without a valid approval, those engaged in the operations will not have the benefit of the s4 immunity and any questions of admissibility will be determined on common law principles: R v Giaccio (1997) 68 SASR 484 at 496 per Cox J; R v Rowe (1998) 71 SASR 389 at 400 per Perry J.
The impact of a valid approval on the application of common law principles was explained by Doyle CJ in R v Ridgeway (1998) 71 SASR 73 at 84:
“I take s4 as an indication by Parliament that in a case like this any criminality on the part of the law enforcement authority is eliminated and so is to be excluded from consideration. The real foundation for the exclusion of the evidence, criminal conduct on the part of the law enforcement authority, has now gone. By admitting the evidence the court no longer gives its approval to unlawful conduct by members of the law enforcement authority and of course there is no question of unfairness…”

His Honour’s remarks were, of course, concerned with the operation of the UOA in relation to unlawful conduct. Evidence procured by illegal act which is the subject of immunity under s4 remains liable to exclusion on discretionary grounds if it is tainted by impropriety i.e. a degree of harassment or manipulation inconsistent with minimum standards of acceptable police conduct.
With those principles in mind I turn to the arguments advanced by the accused.
Was the Grant of Approval Too Late?
Counsel for the accused submitted that P had committed criminal acts before the approval under the UOA was obtained on 9 June 2001. It was submitted that by reason of P’s discussions with Barrett on 29 May 2001, with Barrett and Schiworski on 31 May 2001, and with Schiworski, Schaefer and Barrett on 4 June 2001 and his conduct in obtaining the magnetic stirrer from Barrett, P was a party to a conspiracy to take part in the manufacture of methylamphetamine or to an attempt to take part in the manufacture of methylamphetamine.
I have reservations about the validity of this submission. I also question whether P and the police contravened s 41 of the CSA (counsel for the accused did not specifically rely upon this provision) which provides that a person who “(a) aids, abets, counsels, or procures” or “(b) solicits or incites” the commission of an offence against the CSA is guilty of an offence. However, I am conscious of the remarks made by Mason CJ, Deane and Dawson JJ in Ridgeway (at 36):
“In a context where ancillary offences-such as counselling, being knowingly concerned in, inducing, aiding, abetting and procuring- exist, in one form or another, in all Australian jurisdictions and where no laws exist authorising law enforcement officers to encourage or participate in the commission of criminal offences in order to enable the apprehension and procure the conviction of those whom they believe to be involved in criminal activity, it is likely that conduct which intentionally procures the commission of a criminal offence by another will itself be criminal.”
In my view it is not necessary to dwell on the question of whether P committed any particular offence prior to the grant of the approval because any possible illegality (as distinct from improper behaviour which I will deal with later) would not warrant exclusion of the prosecution’s evidence on public policy grounds.
P’s conduct before 9 June 2001 (his participation in the relevant conversations and his acquisition of the magnetic stirrer) did not constitute the principal offence to which the accused’s offences were ancillary or an essential ingredient of their offences: see generally Ridgeway (1998) 72 SASR73 at 83; R v Karam (1995) 83 A Crim R 416 at 420; R v Bozatkis and Spanakakis (1997) 97 A Crim R 296 at 305
In other words any illegality on P’s part would fall within the first of the category of cases referred to in Ridgeway (at 54); namely, those where “the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations….”.
Of course, it does not follow from the fact that any illegality on P’s part would fall within the first Ridgeway category that the evidence must be admitted. Illegality falling in the first category may be so calculated and entrenched that considerations of public policy require exclusion: Ridgeway at 39.
In the present case, however, there is no evidence of such conduct. There can be no suggestion that any illegality on P’s part was intentional and condoned by the police. On the contrary, it is clear to me that the investigating officer Detective Beattie, believed that there was no need to obtain an approval until the stage at which it was obtained. On the voir dire, Beattie said that it was not until after P had met with the Schiworski, Schaefer and Barrett on 4 June 2001, that he (Beattie) formed the view that those their “activities were going towards criminal.” I accept that that was his belief.
To my mind the police not only acted in good faith but also employed tactics that were sensible and practicable methods of determining the nature and extent of the group’s criminal intentions. There was no other effective way of investigating P’s information.
In my opinion, if P’s conduct, prior to 9 June 2001, amounted to unlawful behaviour, considerations of public policy would not require exclusion of the prosecution evidence.
Was the Approval Valid?
I turn to the accused’s contention that the approval granted by Chief Superintendent Edmonds was invalid. The challenge to the validity of the warrant is mounted on three grounds.
The first ground
The approval given by Superintendent Edmonds specified the acts that P and the other under-cover operatives were authorised to perform.
Counsel for the accused contended that the approval was defective because it did not stipulate that P and the other undercover operatives were not permitted to engage in improper entrapment. In particular, the approval should have spelt out that they were not allowed to beguile or seduce the targets into committing an offence that they were not predisposed to commit.
Counsel argued that the obligation to stipulate in an approval that an operative cannot engage in improper conduct is implied by s3(2)(d) which provides that an approval may not be given unless the officer:
is satisfied on reasonable grounds that the undercover operations are properly designed to provide persons engaging or about to engage in serious criminal behaviour an opportunity-
(i) to manifest that behaviour; or
(ii)to provide other evidence of that behaviour,
without undue risk that persons without a predisposition to serious criminal behaviour will be encouraged into serious criminal behaviour that they would otherwise have avoided.
I reject this submission. Section 3 (4) prescribes the form and content of an approval. Relevantly s3 (4)(d) provides that an approval must state “the nature of the conduct in which the participants are authorised to engage.” The provision does not require that an approval specify acts of impropriety that a participant should not perform. The express mention of the matters to be stated in the approval must be regarded as excluding the need for any other matters to be stated. The legislature intended its statement to be exhaustive of the matters to be included in the approval: see Ousley v R (1997) 148 ALR 510 per McHugh J at 539-540
Furthermore, the argument overlooks that the scheme of the legislation is to sanction conduct that would otherwise be unlawful and to remove illegality as a foundation for the exclusion of evidence on public policy grounds: see Ridgeway (1998) 72 SASR 73 at 84. The UOA is not concerned with sanctioning, prohibiting or regulating conduct that is improper but not unlawful.
In my opinion there is no warrant for reading into the legislation the requirement contended for by counsel for the accused.
The Second Ground
Pursuant to s 3(2) an approval may not be given unless the officer suspects on reasonable grounds the matters referred to in paragraph (a) and is satisfied on reasonable grounds of the matters referred to in paragraphs (b) (c) and (d).
In George v Rockett (1990) 170 CLR 104 the High Court considered the requirement of reasonable grounds in the context of legislation that authorised the issue of search warrants. The Court said (at112):
“When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin’s famous, and now orthodox, dissent in Liversidge v Anderson [1942] AC 206: see Nakkuda Ali v M F De S Jayaratne [1951] AC 66; Reg v Inland Revenue Commissioner; Ex parte Rossminster Ltd [1980] AC 952; Bradley v The Commonwealth (1973) 128 CLR 557; W A Pines Pty Ltd v Bannerman (1980) 41 FLR 169. That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers: see, e.g., Attorney-General v Reynolds [1980] AC 637. Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist. The principle was stated by Fox J. in Reg v Tillett; Ex parte Newton (1969) 14 FLR 101.”
The principles expressed in George v Rockett require that the facts put before a senior police officer must be sufficient to induce in a reasonable person the states of mind referred to in s3(2). Furthermore, the senior police officer must satisfy himself that reasonable grounds exist. The validity of an approval depends upon fulfilment of those preconditions.
Counsel for the accused argued that the approval was invalid because Garde failed to inform Superintendent Edmonds of matters that were relevant to the exercise of his discretion under s 3(2). They submitted that Edmonds should have been informed of matters that were relevant to an evaluation of P’s credibility and the reliability of his information. In particular Edmonds should have been informed of the following matters:
(i)P’s lack of candour with Jeffries at the meeting on 9 February 2001 and his deceptive conduct in continuing to offend thereafter.
(ii) Jeffries opinion of P in February 2001.
(iii)The extent of P’s known criminality and in particular the drug manufacturing offences he committed in February 2001.
(iv)The fact P had been told that the sentencing Judge would be provided with a letter explaining the assistance that he had given in his capacity as a police informant.
The reliability of an informant upon whose information an application for an approval under the UOA is based is an important matter. If a senior police officer considers the information, upon which an application is founded, to be unreliable he cannot justifiably grant an approval: see Coghill v McDermott [1983] VR 751 at 756; Hoobin v Samuels [1971] SASR 239 at 245-246 (cases dealing with the validity of search warrants). Information considered to be unreliable does not satisfy the requirement that reasonable grounds exist for the states of mind stipulated in s 3 (2).
But not every piece of information that could possibly impact on an informant’s credibility must be taken into account by a police officer exercising his discretion under s 3(2). A factor might be so insignificant that the failure to take it into account would not have affected the discretion to grant the approval: see Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 163 CLR 24 Mason J at 40-41; and Karina Fisheries Pty Ltd v Mitson (1990) 26 FLR 473 at 482-483.
In the present case, the items of information (i), (ii), (iii) and (iv) referred to above were matters which, in my view, had an important bearing on an assessment of P’s credibility and the reliability of his information. They were matters Superintendent Edmonds would have been obliged to consider if they had been brought to his attention.
But it does not follow from the failure to provide this information that the approval given by Superintendent Edmonds is invalid. The first problem with the invalidity argument is that the evidence on the voir dire does not establish that Garde was aware of the matters relating to P’s credibility when he applied for the approval except for P’s involvement in the drug offences in February 2001 (see rationale).
In Lego Australia Pty Ltd and others v Paraggio and others (1993) 44 FCR 151 Wilcox J stated at 152:
“…failure by an applicant to disclose relevant information that is in fact unknown to him/her at the time of seeking a search warrant invalidates the warrant only in a case where that information was previously known to the applicant but forgotten, or where the applicant’s ignorance results from his/her wilful blindness or other bad faith .”
In the present case it was not suggested that any of these factors apply to Garde. Consequently his failure to mention matters of which he was not aware could not provide a basis upon which to invalidate the approval.
Furthermore, even if it is assumed that Garde was aware of all matters impinging on P’s credibility that fact would not necessarily result in invalidation. In Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 (at 481 482-483) the Federal Court expressed the view, obiter, that there was “a strict duty of full disclosure of material facts by [an] informant seeking a [search] warrant” under s 10 of the Crimes Act 1914 (Cth). However, that proposition was subsequently rejected by the Full Court of the Federal Court in Lego Australia Pty Ltd v Paraggio (1994) 53 FCR 542.
In Lego Beaumont and Whitlam JJ in a joint judgement said (at 555):
“It follows, in our view, that there is no general, in the sense of abstract “duty” of disclosure here. That is not to say that a warrant should not be set aside, as other administrative decisions can be, where there has been fraud or misrepresentation. For this purpose, a statement which was a half a truth and thus misleading (see eg R v Kylsant [1932] 1KB 442) would be treated, in this, as in other contexts as a misrepresentation”.
The third member of the court Hill J said (at 569 ):
"………Thus it seems to me that the obligation should be stated in terms of an obligation to ensure that the material before the magistrate or Justice is not such as to mislead and that any omission of relevant material was inadvertent. This is merely another way of saying that the informant must in compiling the information act in “good faith”.”
The principles expressed in Lego have since been applied in a line of Federal Court decisions dealing with the validity of warrants authorising searches, telephone interceptions and the use of listening devices under federal legislation: see for example, Propend Finance Pty Ltd v Commissioner ofAustralian Federal Police (1995) 128 ALR 657 at 681-682 and 692; Flanagan v Commissioner of Australian Federal Police (1996) 134 ALR 495 at 553-556; Carmody v Mackellar (1997) 148 ALR 393 at 400; Malubel Pty Ltd v Elder (1998) 88 FCR 242 at 245-246 and 259-261; see also Roman v TheCommonwealth of Australia [2004] NTSC 9.
In my opinion there is no general, in the sense of abstract, duty of disclosure in the case of a police officer who makes an application for an approval under s3 (2) of the UOA. An approval cannot be invalidated on the ground of non-disclosure absent fraud or misrepresentation, which can sometimes be committed by presenting only half- truths. A half-truth in this context means one involving deliberate dishonesty: see Flanagan v Commissioner of Australian Federal Police at 556.
Here there is no evidence of fraud or misrepresentation associated with the application for the approval. Accordingly, I find that there is no basis for ruling that the approval was invalid by reason of non-disclosure of the matters relating to P’s credibility.
I should also point out that Mr Retalic submitted that Garde should have disclosed to Edmonds that the police had information (to which Garde was privy) that persons with whom P was dealing were suspected of having connections with the Gypsy Jokers and thus presented a potential threat to the informant’s safety. Superintendent Edmonds agreed in cross-examination that he would have considered as material any information that indicated that the informant was in danger in determining whether it would be in the best interests of the informant to proceed with the operation (though he did not suggest that such information would have altered his decision).
I do not consider that this piece of unconfirmed information is a matter that Edmonds would have been required to take into account. There is always a risk that harm might befall an informant who participates in an undercover operation of this type. It is unrealistic to think that Edmonds would have reached a different decision if he had been informed of the suspected Gypsy Jokers link. Indeed, knowledge of the suspected link may have served to strengthen his view that it was appropriate to infiltrate the group. That was certainly Beattie and Jeffries attitude.
In any event, the information was not disclosed and, for the reasons I have expressed, such non-disclosure could not invalidate the approval absent evidence of fraud or misrepresentation. As I have said there is, in my view, no such evidence.
The Third Ground
Mr Retalic submitted that Superintendent Edmonds failed to satisfy himself that there were reasonable grounds to suspect the matters specified in s3 (2) and merely relied on Garde’s view that the information upon which the application was based was reliable.
Before I turn to the relevant principles it is appropriate to summarise Edmonds evidence of the information that he acted upon for the purpose of granting the approval. He said that he approved the operation largely on the basis of information that he received from Detective Garde over the telephone on 9 June 2001. Edmonds said that he stated in the approval the information that he received from Garde. The relevant part of the approval states:
“I am reliably informed that;
Persons known at this point in time only as Ozzie, Klaus and Gordon are attempting to obtain precurser (sic) chemicals for the purpose of manufacturing illicit drugs, most likely amphetamine type substances.
The persons nominated have the required equipment and chemicals to make drugs, except for hypophosphorous acid.”
I should point out that Garde was not called on the voir dire and that Edmonds account of the information that he received from Garde, was not challenged by counsel for the accused.
Edmonds further deposed that he had discussed the undercover operation with Beattie during the days leading up to the grant of approval. He said that Beattie told him that there were people looking to manufacture amphetamines, that they were short of one of the precursor chemicals and that there was an opportunity for intervention. He was also told that the source of the information was an informant. He was unable to recall, though pressed on this point in cross-examination, any further information that he received from Beattie. Beattie was not questioned on the voir dire in relation to the information that he is said to have provided to Edmonds.
Was This Body of Information Sufficient for the Purposes of s3 (2)?
Reasonable grounds can be established through the personal knowledge of the applicant, or, as in this case, through hearsay information derived from a third party, for example an informant: see R v Rondo (2001) 126 A Crim R 562 at 577; Hoobin vSamuels [1971] 2 SASR 238 at 245-246; Feldman v Buck [1966] SASR 236 at 241. However, the information upon which the application is based must contain sufficient facts upon which it can be said that reasonable grounds exist.
The requirement of reasonable grounds guards against the arbitrary exercise of power vested in a senior police officer. Such an officer cannot discharge his duty under s3 (2) by “acting parrot like upon the bald assertion ” of the applicant: see Bowden v Box [1916] G.L.R. (N.Z.) 443; R v Tillett; Ex parte Newton (1969) 14 FLR101 at 106 (search warrant cases).
In Crowley v Murphy (1981) 52 FLR 123 (a search warrant case) Lockhart J expressed the principle in these terms (at 143):
“…it is the justice himself who must be satisfied, not the policeman who gives the information on oath. The justice must not act as a mere rubber stamp for the police. He must ensure that a finding of reasonable ground is supported by credible facts and circumstances.”. (My emphasis)
In R v Macleod [1991] Tas R 144 a police officer successfully applied for a search warrant under the Poisons Act 1971 (Tas) on the basis of information given by a police informant. The information, which asserted that the accused was involved in selling prohibited drugs, had been passed onto the police officer by one of his colleagues. The police officer had never met or spoken to the informant.

The log makes no reference to P having been telephoned by Barrett. The reference in the log to P having been contacted by another source is entirely consistent with P having been contacted by Barrett through Kim. As I have already pointed out Beattie first recorded that P told him that “he was contacted via his mobile phone by a male who only introduced himself as Ozzie” when he commenced preparing the rationale about one week later. It is likely in my view that the remarks in the rationale are the result of a vague recollection or misunderstanding on Beattie’s part of what P told him. Other than the rationale Beattie’s only record of the information that he received is the log.
Furthermore, there is not necessarily any inconsistency between P and Beattie in respect of Beattie’s evidence that P did not tell him over the phone on 30 May 2001 that he met Barrett at Kim’s place. It was not put to P in cross-examination that he failed to tell Beattie, over the telephone on 30 May 2001, that he met Barrett at Kim’s home. He was not afforded the opportunity to provide an explanation for this suggested omission. In any event, it does not surprise me that he may have omitted to mention the meeting at Kim’s. The content of P’s discussions with Barrett were far more important than the location where they took place. Furthermore, the possibility that P informed Beattie of the meeting at Kim’s home and that Beattie failed to record that detail, which he has since forgotten, cannot be discounted.
The arguments advanced by counsel for the accused do not satisfy me that P lied about the circumstances in which he met Barrett. On the contrary, I am satisfied that P met Barrett as a result of Kim informing P that Barrett wanted to meet with him
The Group’s Drug Manufacturing Capabilities
The next aspect of the accused’s circumstantial case relates to information that P is said to have given Beattie during the period leading up to the approval of the undercover operation. The information relates to conversations that are alleged to have taken place between P and Barrett on 29 May 2001 and between P and Schiworski, Schaefer and Barrett on 4 June 2001 at the Old Spot hotel. According to Beattie, P informed him:
·that Barrett and his associates had all of the equipment and chemicals (except hypophosphorous acid) that were required.
·that Barrett, Klaus and Gordon were all involved in the laboratory, which has been operating for some time.
·that the laboratory was set up in the country but P was not advised of the exact location.
·that all of the ingredients had been sourced including a large quantity of Sudafed and 10 kg of iodine.
Counsel for the accused submitted that these statements were inconsistent with other evidence on the voir dire. It was argued that the inconsistencies disclosed that P had lied to Beattie for the purpose of giving the false impression that he had come into contact with significant and established players in the drug manufacturing scene.
P’s Evidence on the Voir Dire
First, counsel for the accused pointed to inconsistencies between the alleged statements and P’s evidence on the voir dire. In cross-examination P said that he did not believe that he told Beattie that Schiworski, Schaefer and Barrett were involved in a laboratory that had been operating for some time or that a large quantity of Sudafed and 10 kg of iodine had been sourced. P deposed that he was informed that Schiworski and his associates could obtain all the equipment and chemicals required and that discussions had taken place in relation to locating the laboratory somewhere in the Barossa Valley.
These suggested inconsistencies between Beattie and P do not lead me to believe that P deliberately gave false information. The entry that Beattie recorded in the Informant Log following P’s meeting with Barrett on 29 May 2001 makes no mention of P having told him that Barrett and his associates had all the equipment and ingredients (other than hypophosphorous acid). That assertion first appears in the rationale that Beattie compiled some days later.
Similarly, the entry that Beattie recorded in the Informant Log following P’s meeting with at the Old Spot hotel on 4 June 2001 does not suggest that P told him that Schiworski, Schaefer and Barrett told him that they were involved in a laboratory that had been operating for some time or that they had sourced a large quantity of Sudafed and pseudoephedrine. Again that information which is attributed to P first surfaces in the rationale. The entry which Beattie recorded in the Informant Log on the night of 4 June 2001 states:
“R/I contacts C/H after meeting. New players known only as Gordon and Klaus. R/I informed throughout this meeting that all other items have been or about to be sourced including large amount of Sudafed. R/I did not agree to any part at this time until further instructed. New meeting was planned for 1200 11.6.01 at Roulettes Tavern Parafield.”
The statement in the entry that all other items have been or are about to be sourced is consistent with P’s evidence on the voir dire. Significantly it is an entry made within a relatively short time of P meeting the three men at the hotel. In my opinion, the inconsistencies which counsel for the accused have focussed on are entirely consistent with Beattie inaccurately recording in the rationale the information that he had received from P one week earlier.
I do not suggest that P has given a perfectly accurate account. It would not be surprising if there were aspects of the information that he received from the group and relayed to Beattie that he has since forgotten.
Be that as it may, I reject the submission that the discrepancies, upon which the accused’s “circumstantial case” is heavily reliant, demonstrate that P lied to Beattie.
The List
The next matter relied upon by counsel for the accused was P’s concession in cross-examination that at some stage before the test cook, on 4 July 2001, he wrote and gave to Schiworski a list of equipment (Exhibit VD D6). The list itemised the following items of equipment: plastic tubing, a butane fuelled camp stove, glass plates (11 inches in diameter), glasses (schooner size), a microwave oven and a glass air tube. The words “Crown Scientific” appeared next to a drawing of the glass air tube.
Counsel for the accused argued that there would have been no need for P to supply Schiworski with such a list if Schiworski, and his associates, had all the equipment necessary for the manufacture of methamphetamine. Furthermore, they would hardly require instructions to obtain something as fundamental as a cooking appliance.
P said that the list was written in the course of checking with Schiworski that they had all the essential equipment. He said that it was necessary to conduct such a check because there are different methods of manufacture and variations in equipment used (including heating appliances). To my mind, the list does not damage P’s credibility. There is nothing implausible about the checking procedure he described.
I have not overlooked that P agreed, in cross-examination, that he might have written “Crown Scientific” to identify an outlet from which Schiworski or one of his colleagues could acquire the glass tube mentioned in the list. The fact that Schiworski did not have that particular glass tube or, for that matter, any other item mentioned in the list does not contradict P’s evidence about the discussions that he had with Schiworski and the others. On his account he was told that they could obtain all the required equipment. Furthermore, the items listed, if they were used in the operation, would have represented only a small portion of the equipment located in the laboratory on Schaefer’s property. On the evidence before me, Schiworski and his associates must have provided all of the equipment not mentioned in the list without any input or guidance from P.
The list does not satisfy me that P deliberately misled Beattie in respect of the drug making capacity of the accused.
Difficulties Accessing Sudafed
Counsel for the accused argued that P’s statements to Beattie about the group’s ability to access large quantities of pseudoephedrine and iodine were inconsistent with the problems they later experienced in trying to obtain those substances.
In particular, during the period between the test cook and the second cook, Schiworski, on P’s account, expressed difficulty in obtaining amounts of pseudoephedrine that would make the second cook worthwhile. It is also clear that when the police raided Schaeffer’s property on 2 August 2001 only small amounts of methylamphetamine and pseudoephedrine were located.
Counsel for the accused also pointed to the fact that on the prosecution case P asked Schiworski, on either 4 June 2001 or 11 June 2001, to supply him with some iodine to test the acid that P was supposed to make. Yet, on 14 June 2001, at the first Carisbrook Park meeting Schiworski said that he was still trying to access the iodine. Then, on the night of 14 June 2001, Barrett rang P and said that he had received a quote of $1500 for one kilogram of iodine. P informed him that he could obtain the iodine from Ace Chemicals at a significantly cheaper price. Four days later, on 18 June 2001, Schiworski produced to P the bottle of granulated iodine.
I agree that the problems Schiworski is said to have experienced in obtaining iodine and pseudoephedrine are difficult to reconcile with Schiworski and his associates having immediate access to large quantities of Sudafed and iodine. But for the reasons I have expressed the information that P passed onto Beattie from the group may well have been that they could access large quantities of those substances. They may have believed that they could access the chemicals perhaps through established contacts, but subsequently experienced difficulties in acquiring them. It might also be the case that they intentionally exaggerated their drug making capacity for the purpose of promoting their venture to P.
The difficulties that these men are said to have experienced in acquiring pseudoephedrine and to a lesser extent iodine do not persuade me that P gave false information to the police.
Counsel for the accused also argued that Barrett’s conduct in obtaining a quote for iodine at an exorbitant price reflects incompetence on Barrett’s part. That might be true. But it does not necessarily follow that the others, in particular Schiworski, shared any such incompetence. Indeed, Schiworski was astute enough to cut Barrett out of the operation because he was concerned about Barrett’s excessive use of drugs and his unreliability.
Furthermore, P gained the impression that at this juncture Barrett may have been operating independently from the others. In cross-examination it was suggested that Barrett was making an enquiry about iodine on behalf of Schiworski and the others. P replied:
“Well I’m not too sure because, at the same time, when Gordon said he had people sourcing things and then I had Ozzie ringing me with these things, I sort of got the conclusion that Ozzie was off doing something else as well”
The Nature of the Equipment Used in the Laboratory
Counsel for the accused attached significance to the fact that some of the items of laboratory equipment seized by the police on 2 August 2001 did not fit properly and had to be joined with adhesive tape or “Blue Tack”. They submitted that the fact that some of the items of equipment had to be cobbled together illustrated that the accused were inexperienced and incompetent drug manufacturers.
I reject this submission. Detective Jeffries and Mr Pigou, who have considerable experience in the investigation and examination of clandestine drug laboratories, both said that that it was not uncommon to find drug manufacturing equipment with these features. Furthermore, there were only a few items that had to be modified in the above-mentioned manner. In the main the laboratory was well equipped. Indeed, the accused, on the prosecution case, managed to supply all of the equipment that was necessary for the manufacturing process except a suitable steam head.
I turn now to the other features of the accused’s circumstantial case.
P acting Outside his Brief
Counsel for the accused submitted that certain acts performed by P in the course of the investigation show that he was an informant the police could not control. His behaviour, it was submitted, supported their contention that he was an informant prepared to engage in acts of manipulation without the authority of Beattie. The acts upon which counsel relied were P’s conduct in (i) requesting the magnetic stirrer from Barrett on 29 May 2001 to determine if Barrett’s group were seriously considering manufacturing drugs, (ii) requesting iodine from Schiworski on the pretext that he needed the chemical to test the acid that he was supposed to make, and (iii) giving Schiworski the list of equipment.
These acts do not impress me as a sound basis for counsel’s contention.
The request for the stirrer occurred on the first occasion P met Barrett. It was a sensible and non-coercive tactic designed to test the seriousness of Barrett’s proposal. Furthermore, the request for the stirrer was not a secret. P reported his request to Beattie who agreed that it was a reasonable strategy. He instructed P to follow it through. There is not a hint of improper conduct on the part of P.
I also reject the argument that P’s request for iodine was improper. It was submitted that P requested iodine from Schiworski during the meeting at the Old Spot hotel on 4 June 2001 without authority from Beattie. This contention is based on P’s evidence that the request for iodine was made on that day and Beatties evidence that it was at a later date that he gave P an instruction to request iodine. The argument assumes that P’s evidence as to when he made the request is accurate. As I indicated earlier in my reasons I find that P was mistaken on this point
Beattie gave evidence that in conjunction with P he devised the strategy of P requesting iodine from Schiworski and that the strategy was to be implemented at the meeting at Roulettes Tavern on 11 June 2001. Consistent with that arrangement Beattie said that P rang him on 11 June, after the meeting at the tavern, and told him that he had met Gordon and that they were going to meet again at Carisbrook Park so that Schiworski could provide him with the iodine. This information that P gave him was entered into the informant log by Beattie on 11 June. It is the first entry in the log that makes reference to iodine. All of this is consistent, in my view with the request for iodine having been made by P, on 11 June, in accordance with Beattie’s instructions.
Counsel’s argument in relation to the list has more merit. The evidence does suggest that P wrote the list and gave it to Schiworski without Beattie’s knowledge. This aspect of the evidence lends support to the accused’s argument. I have considered it carefully but it does not persuade me that P engaged in coercive conduct or any form of behaviour that constituted improper importuning.
The Eight Ball
Mr Retalic submitted that it was more than a coincidence that following the test cook on 4 July 2001 P supplied Beattie with one eighth of an ounce of methamphetamine (an “eight ball”) and that P often sold eight balls when he was conducting his commercial drug operation. He submitted that I should infer that P never manufactured the substance on Schaeffer’s property, that he manufactured the drug at, or obtained the drug from, some other location and supplied the substance to Beattie on the pretext that it was the product of the test cook that he was supposed to carry out with the accused.
The weight of the drug supplied to Beattie does not satisfy me that P engaged in such conduct. There would have been no need for P to resort to such extraordinary measures if the laboratory was operational on 4 July 2001. To my mind the notion that the laboratory did not exist at that stage is fanciful considering the detailed information that P provided the police during the preceding weeks. The deception that P is said to have practised on the police and the accused was incredibly elaborate, and unnecessarily intricate, if there was never an arrangement to conduct a test cook on 4 July 2001. It also would have been very risky from P’s point of view. For all P knew the police could have raided the property on 4 July and discovered that he had misled them.
Furthermore, there can be no doubt that a methylamphetamine laboratory was established on Schaeffer’s property. Consistent with P’s information on 2 August 2001, the police found an established and operational laboratory. In my view there is no sound reason to doubt P’s evidence that the laboratory had been in existence since 4 July.
The theory that P gave Beattie an eightball, which was not manufactured on Schaefer’s property is speculative. In any event I believe that P told the truth about the test cook conducted on that day.
The Failure to Complete the First Cook on 2 August 2001
As I have previously mentioned P said that he cooked two batches of methylamphetamine oil before he left Schaefer’s property on 2 August 2001. Some of the first batch was converted into methylamphetamine powder and some was poured into glass containers and left to be processed later. The second batch of oil was still refluxing in the round bottom flask when he left.
Counsel for the accused submitted that it was significant that the oil was still in the flask (assuming it was the same oil) when the police attended about three and half hours later that night. All of the equipment and chemicals needed to convert the oil into methylamphetamine were in the shed. They argued that the accused’s failure to complete the process of converting the oil into methylamphetamine powder serves to show that they had no real expertise or experience in this area and that P was doing all the technical work. The process stopped when the expert walked out the door.
The unprocessed oil is consistent with that submission. But there may be other explanations. The accused may have spent some of the afternoon converting into methylamphetamine powder the oil that P said he left in the glass containers. Following the completion of that process the accused may have ingested the product. That might serve to explain why the police did not find any containers of oil other than the round bottom flask.
The accused may also have spent time drinking beer (beer bottles were found in the shed) and ingesting the methylamphetamine powder from the first cook. P said that he could not remember what happened to that powder after it was scraped from the plate. In my view it is conceivable that Schiworski and Schaefer placed the powder in the ginseng bottle (OW 28) and the bowl (OW43). That scenario is consistent with Mr Pigou finding traces of methylamphetamine powder on the pie plate (OW 25) and scraper (OW32) and in the ginseng bottle and bowl.
Then again it may be the case that they waited for P to return because he was proficient in making methylamphetamine using the hypophosphorous method and they were not. A lack of expertise in a particular method of production does not mean that they were novices in the manufacture of amphetamines. This might explain why P focused on the more technical aspects of the cooking process namely the reflux and steam distillation phases.
Forensic Evidence
Counsel for the accused also pointed to aspects of the forensic evidence to support their proposition that the accused were novices and mere drug users who were inveigled into committing these offences and assumed a peripheral role.
They emphasised that unlike P the accused did not reek of chemicals when the police arrived and Mr Pigou found no evidence of chemicals on their clothing. Mr Pigou did not agree that this meant that they had not been intimately involved in the manufacturing process. He said “it means that they didn’t spill anything on themselves in a quantity that was visible”.

Counsel further submitted that the chemicals found on Schiworski and Schaefer’s hands were consistent with a minimal role such as popping blister packs or handling the drug for the purpose of ingesting it. That is so. But it is also true that the findings are not inconsistent with Schaefer and Schiworski having participated in the manufacturing process in the manner described by P.
Counsel also placed reliance on the absence of the accused’s fingerprints on any of the items of laboratory equipment other than the separating funnel which bore prints consistent with Schaefer’s.
In relation to this topic, P said that he, Schiworski and Schaefer wore gloves during the cooking process and that they took them off from time to time when their hands got sweaty. Several pairs of used latex gloves were found inside the shed by police. P’s evidence was, however, inconsistent with his statement to the police. In that statement he said that he was the only person to wear gloves. But even if the accused were not wearing gloves the absence of fingerprints does not lead me to think that they merely popped the odd blister pack. The absence of prints on items other than the separating funnel could be due to a variety of factors including sweaty hands.
Conclusion on Entrapment
The accused bore the onus of proving on the balance of probabilities that they were subjected to improper entrapment. They did not give evidence in support of their case but relied on the collection of factors that I have canvassed. I have carefully considered those factors. I have also had regard to their collective force. The evidence does not satisfy me to the requisite degree that the accused were improperly importuned
Indeed while I have reservations about aspects of P’s evidence I am satisfied that he has told the truth. I find on the evidence that has been put before me that the accused were willing participants from beginning to end.
Insufficient Control
I turn to the submission that the police failed to adequately instruct P and to monitor his activities so as to ensure that he did not improperly importune the accused.
The importance of police maintaining control of a police informants and agent provocateurs was recognised by White J in R v Romeo (1987) 45 SASR 212 at 223:
“ I accept that there are dangers in the use of informers and agents provocateur like W and that the police should take steps to supervise the activities of these offenders carefully in those cases where the police become involved in working closely with them, zealous as they are to show that others are guilty to save their own skin”
In the present case counsel for the accused submitted that the police failed to adequately monitor P in the following respects:
(i)The police did not attach a listening device to P or install listening devices in hotels where meetings took place in order to record P’s conversations with the accused.
(ii)The police did not intercept calls on P’s, Schiworski’s or Barrett’s telephone for the purpose of monitoring any conversations related to the investigation.
(iii)The police did not search P before he went onto Schaeffer’s property on 4 July 2001 and 2 August 2001 to ensure that he did not take with him equipment and pre-cursor chemicals (other than hypophosphorous acid) that he claimed were supplied by the accused.
(iv)The police did not search P before and after his visit to Schaeffer’s property on 4 July 2001 to eliminate the possibility that the methylamphetamine came from somewhere else.
(v)The police failed to search P before he met Schiworski on 18 June 2001 to ensure that he did not have on him the bottle of iodine that he claimed was supplied by Schiworski. Furthermore, no surveillance was conducted on P and Schiworski when the handover of iodine is said to have taken place.
(vi)The police should have raided the property during the afternoon, because if the accused were involved in manufacturing methylamphetamine to the extent described by P the police could have caught them in the act and corroborated P’s allegations.
These criticisms do not persuade me that the police failed to adequately supervise P’s activities. Beattie explained that a listening device was not fitted to P because it might jeopardise P’s safety. He also explained that the installation of listening devices in hotels was impractical because the precise locations where the discussions were to take place in the hotels were unknown. There was also the problem of surrounding noise affecting the quality of the surveillance. I accept his evidence. Beattie also explained that the police raided the property under the cover of darkness to reduce the possibility of a confrontation with the accused. I accept his evidence on that point as well.
It is true that the police failed to search P in the manner contended for by the accused and that no telephone interceptions were obtained. But these factors do not render the operation improper. It is nearly always possible to make suggestions of further matters that might have been investigated in criminal matters: R v Williams [1999] 1 Qd R 212 at 215. Indeed, there is no general rule in Australia that a complete investigation is a necessary element of the trial process or of a fair trial: Penney v The Queen (1998) 72 ALJR 1316 at [18]. In the present case, there is no sound basis for apprehending that the failure to conduct the investigation in the manner suggested by counsel for the accused has deprived their clients of a proper opportunity of exculpation. I have found that they were not subjected to improper methods of entrapment. I accept that P has told the truth about his dealings with the accused.
There is one aspect of the investigation which warrants comment. In the course of the voir dire Detective Jeffries and Detective Beattie were questioned about the directions that were given to P in the course of the undercover operation. They said that they explained to P what he could do under the terms of the approval. I accept that they did. They also said that they explained to P what he could not do. But when pressed in cross-examination, both were unable to recall the details of the instructions that they gave P in that regard. No notes were kept of the discussions that they had with P. P gave evidence that he was instructed what he could do under the terms of the approval. However, he said that he did not believe he was told that he should not engage in conduct of a coercive nature. He added that it was not an issue because he did not behave in that manner. I accept his evidence.
It is important, in my respectful opinion, for police officers to instruct agent provocateurs not to engage in behaviour that involves seducing, pressuring and manipulating a person into committing offences that they are unwilling or reluctant to commit. The failure on the part of the police to give that direction to P is unacceptable. The failure on the part of Beattie and, to a lesser extent, Jeffries, to record the instructions that they gave P in the course of the operation is equally unacceptable.
Police general order 8430, which was in force at the time of these events, stated:
“Caution must be exercised when dealing with informants to ensure they do not seek to procure persons to commit criminal acts or engage in other unlawful practices.” [Para 21]
I accept Mr Lister’s submission that the failure to instruct an informant acting as an agent provocateur not to engage in improper importuning is inconsistent with the spirit of the general order.
It also emerged on the voir dire that Detective Beattie did not record all contact that he had with P over the telephone. He explained that he did not record the fact of all telephone conversations because some of them were irrelevant. However, there was at least one conversation that was not recorded that dealt with a matter of importance. Beattie said, and I accept, that after the grant of the approval by Edmonds that he explained to P the acts that he was authorised to perform. However, there is no mention of this conversation in the informant log. This omission, in my opinion, is inconsistent with para 23 of general order 8430, which provides:
“A case officer shall inform his supervisor of any proposed meetings with an informant and the results of such meetings. He will also enter the precise details about any meeting in the Form R.F. 1928, individual Informant Log, including specific location, time and date.” [Para 23]
These inadequacies, however, do not, in the circumstances of this case, provide a proper platform for exclusion. There must be a causal connection between the impropriety and the evidence that is sought to be excluded. That connection is lacking here in that the failure to properly instruct P and the omission to record instructions did not result in entrapment.
The relevant principle was explained by Doyle CJ in Question of Law Reserved (No. 1 of 1998) 70 SASR 281 at 288:
The discretion is a broad one. It is founded upon the need to preserve the integrity of the administration of justice and the need to protect the processes of the courts of justice: see Ridgeway (at 30-32) per Mason CJ Deane and Dawson JJ. An object of the exercise of the discretion is to discourage illegal or improper conduct by the law enforcement authorities: see Ridgeway (at 32); R v Swaffield (at 22) per Brennan CJ.
But the foundation of the discretion, and its object, do not give the courts a roving commission to search for illegality or impropriety by those responsible for the enforcement of the law. The discretion does not give a power to exclude the evidence whenever there is some association between that evidence and illegal or improper conduct, or whenever an attempt is made to bolster prosecution evidence by resort to illegal or improper conduct. To exercise the discretion in that fashion would be to use the exclusion of evidence as a means of punishing wrongdoing by those responsible for that enforcement of the law. That is not the responsibility of the courts. Or, to be more precise, the exclusion of evidence is not the means by which wrongdoing is to be punished by the courts. As the majority said in Ridgeway (at 37) with reference to improper conduct by law enforcement officers in the course of investigating criminal activity:
“A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of an offence with which the accused is charged.”
In other words, the discretion arises when the improper or illegal conduct has procured the commission of an offence or has enable the prosecution to obtain the relevant evidence.”
Selective Prosecution
I turn to the next argument. Each accused has sought a stay of proceedings on the basis that his prosecution is unlawful, offends the public conscience and brings the administration of justice into disrepute by reason of the failure on the part of the prosecuting authorities to prosecute other persons associated with prior offending by P.
This argument is founded on the Bill of Rights (1688) (UK) which is part of the received law in this state. Under the Bill, the Crown may not suspend laws or the execution of laws without the consent of Parliament. The Executive, which includes the police, does not have authority to dispense with the application of the law to a particular individual or to suspend the operation of law in general; see R v Stead (1992) 62 A Crim R 40.
In the present case, counsel argued that Jeffries dispensed with the laws in favour of persons who were selling amphetamines on behalf of P. It was submitted that the evidence of criminality was contained in the telephone intercepts. The argument proceeded, that the conduct of the authorities in prosecuting the accused on the one hand and failing to take action against those persons picked up by the intercepts brought the administration of justice into disrepute and warranted a stay of the proceedings against the accused.
The argument has no substance. Jeffries did not suspend the criminal laws of this State. On 2 February 2001, he arrested Brian Parker for taking part in the manufacture of methylamphetamine that occurred at P’s home. On 26 February 2001, Jeffries arrested Grahame Byrne for taking part in the manufacture of methylamphetamine at Melrose Park. Both men were arrested for the same offences as P.
In relation to the persons referred to in the telephone intercepts, Jeffries explained that he did not investigate persons who may have been involved in selling on behalf of P because there was insufficient evidence to identify them. Furthermore, his ability to conduct an effective investigation, was hampered by a lack of resources. I accept his evidence. There is not a hint of evidence that Jeffries or any police officer adopted a policy of suspending laws in favour of a particular individual or individuals. In my opinion, the public faith in the administration of justice would be shaken if these proceedings were stayed against the accused on such a unmeritorious basis.
P’s Sentence
There is one further matter. It relates to the letter which was provided to the judge who sentenced P. The letter (Exhibit VD D5), prepared by Beattie and signed by Superintendent Paynter, stated in part:
“Informants supplying information regarding outlaw motorcycle gangs are rare and highly valued. These persons generally assist police with the full knowledge that they face a genuine risk of persecution, harassment, or personal injury if discovered. In this particular case, the accused knew he was dealing with members of the Gypsy Jokers Motorcycle Club and was aware of possible dangers he would face if discovered. The Gypsy Jokers Motorcycle Club is notorious for resorting to extreme measures when faced with adversity including murder. Such cases have been well documented in recent times
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The accused accepted the role with the full knowledge of possible implications and ramifications if discovered. Over a period of approximately 9 weeks the accused held regular meetings with members of the Gypsy Jokers Motorcycle Club and accompanied them on two occasions whilst amphetamine was manufactured. This culminated in two members of the Gypsy Jokers Motorcycle Club being arrested along with a club associate. At the time of this arrest an operating amphetamine laboratory was discovered at the arrest location.”
The letter was misleading. It was not the case that P provided assistance to the police knowing that he was dealing with members of the Gypsy Jokers Motorcycle Club. On the contrary, Schiworski and Schaefer’s suspected links to that organisation were never disclosed to P during the operation. The provision of such misleading information was a serious error. At the very least Beattie was extremely careless in inserting such information in the letter
Counsel for the accused submitted that this was a matter that I should take into account in the exercise of my discretion. I disagree. It is a matter that occurred well after the operation. It has no causal connection to the events that I must consider.
Conclusion
I refuse the applications made by each accused for exclusion of the prosecution evidence and for a permanent stay of proceedings.