R v Snounou (No 1)

[2023] NSWDC 583

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Snounou (No 1) [2023] NSWDC 583

Hearing dates:

7 – 10 November 2023
13 - 14 November 2023

Date of orders:

15 November 2023

Decision date:

15 November 2023

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

At [132] - [135]. The evidence is inadmissible as not falling within the exception provided for in s 79(1) of the Evidence Act. Were the view formed that the evidence were admissible under s 79(1) it would be rejected pursuant to s 137 of the Evidence Act.

Catchwords:

EVIDENCE — Criminal trial — Admissibility — Expert opinion evidence — no confirmatory tests undertaken — chemical sample used in presumptive testing destroyed — presumptive testing generated positive result for border-controlled pre-cursor — whether opinion evidence adduced from a forensic chemist of accuracy of presumptive testing is admissible — evidence from defence expert that false positive still possible

Legislation Cited:

Evidence Act 1995(NSW)

Criminal Code Regulations 2019 (Cth)

Cases Cited:

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Honeysett v The Queen [2014] HCA 29

IMM v the Queen (2016) 257 CLR 300; [2016] HCA 14

Lang v The Queen [2023] HCA 29

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

R v Bowie (No 1) [2022] NSWSC 1502

Ramsay v Watson (1961) 108 CLR 642

Texts Cited:

Dixon, ‘Science and Judicial Proceedings’ in Crennan and Gummow (Eds) ‘Jesting Pilate’ 3rd ed 2019 124

Macquarie Dictionary (3rd edition revised, 2001 at 1054)

Category:

Procedural rulings

Parties:

Michael Snounou (Accused)
Commonwealth Director of Public Prosecutions

Representation:

Counsel:
T Hammond (Accused)
D Jordan and K Curry (CDPP)

Solicitors:
Jamieson Criminal Law (Accused)

File Number(s):

2018/058199

JUDGMENT

1. Michael Snounou appears on an indictment which charges him with four offences arising from his alleged involvement with either a border-controlled drug or pre-cursors able to be used in the manufacture of prohibited drugs, namely methylamphetamine.

2. Pre-trial applications have been brought which seek to exclude the opinion evidence of a forensic chemist, tendency evidence sought to be relied upon by the Crown and, in the event that the expert opinion is held to be admissible, a permanent stay with respect to one particular count in the indictment. Evidence and submissions have been received on each of these three applications.

3. The present judgment will deal with the first application which seeks to exclude the opinion evidence of the forensic chemist, which, as will become clear, relates to Count 3 of the indictment.

4. The first count on the indictment relates to the accused’s possession of a pre-cursor, namely iodine, in September 2013, intending that the iodine could be used in the manufacture of the prohibited drug, methylamphetamine. He has entered a plea of guilty to that offence.

5. The short relevant facts are that Snounou had become a Director of a company, Cyndan Manufacturing Pty Ltd, from April 2009. Cyndan was involved in the sale and manufacture of chemical,…