R v Strawhorn
[2008] VSCA 101
•13 June 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 423 of 2006
| THE QUEEN |
| v |
| WAYNE GEOFFREY STRAWHORN |
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JUDGES: | VINCENT, NETTLE and KELLAM JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 and 12 February 2008 | |
DATE OF JUDGMENT: | 13 June 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 101 | 1st Revision – 13 June 2008 |
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Criminal law – Conviction – Trafficking in a commercial quantity of pseudoephedrine – Applicant was a serving member of Victoria Police attached to Drug Squad – Applicant’s failure to mention pseudoephedrine transactions to investigating superiors – Statement made by applicant that ‘it never happened’ – Whether such conduct amounted to a consciousness of guilt – Issue of corroboration – Whether evidence relating to movement and communication between relevant individuals was capable of providing support for conduct alleged – Whether such evidence intractably neutral – Whether trial judge erred in declining to give Faure warning to jury regarding the reliability of evidence given by former police members involved in criminal conduct – Applicant at relevant time in possession of unexplained cash – Whether such evidence of betterment admissible – Whether applicant guilty of trafficking in ‘pure pseudoephedrine hydrochloride’ – Meaning of ‘pure’ according to the standards postulated by British Pharmacopeia – Application dismissed.
Criminal law – Sentence – Whether sentence available in proper exercise of sentencing discretion – Parity – Fresh evidence – Subsequent superannuation order made – R v McLeod (2007) 16 VR 682 – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC with Ms E J Gardner | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr P J Morrissey | Galbally & O’Bryan |
VINCENT JA:
NETTLE JA:
KELLAM JA:
The applicant was, on 22 June 2006, presented before the Supreme Court at Melbourne on four counts of trafficking in pseudoephedrine (counts 1 to 4), one count of trafficking in a commercial quantity of pseudoephedrine (count 5) and one count of making a threat to kill (count 6). He was, on 18 October 2006, found guilty by the jury on count 5 only.[1]
[1]The jury returned verdicts of not guilty in respect of counts 2, 3, 4 and 6 and being unable to reach a verdict in respect of count 1 were subsequently discharged without verdict on that count.
After hearing a plea in mitigation of penalty, the sentencing judge, on 11 December 2006, imposed a term of imprisonment of seven years in respect of which a non-parole period of four years was fixed.
The application for leave to appeal against conviction
The applicant seeks leave to appeal against his conviction[2] and sentence on the grounds that:
[2]Ground 1 which asserted that the verdict on count 5 was unsafe or unsatisfactory because the jury ought not to have been satisfied of the applicant’s guilt, was not pursued and need not be addressed.
2. Consciousness of guilt grounds
2AThe learned trial judge erred in leaving evidence of [the applicant’s] “failure to mention pseudoephedrine” as consciousness of guilt on all or any counts.
2BThe learned trial judge erred in leaving evidence of [the applicant’s] alleged “directive” to witness BC that “it never happened” as consciousness of guilt on count 5.
2CA miscarriage of justice was occasioned by the Crown leading evidence which, not ultimately constituting admissions by conduct, was of little probative weight and significant prejudicial effect.
3. Corroboration grounds
3AThe learned trial judge erred in directing the jury that the following pieces of evidence were capable of corroborating the evidence of Stephen Paton.
(i)Regarding counts 1 to 4, all displays of unsourced cash before 19 May 2000.
(ii)Regarding count 5, all displays of unsourced cash including those after 19 May 2000.
(iii)Regarding count 5, the car log for 19 May 2000.
(iv)Regarding count 5, the CCRs for 19 May 2000.
(v)Regarding count 5, the evidence of witnesses DE and BC.
(vi)Regarding counts 1-4, the relevant CCRs.
(vii)Regarding all counts and particularly count 5, the evidence of admissions by conduct.
3BThe learned trial judge erred in suggesting to (or directing) the jury that a finding that the alleged corroborative evidence was “consistent” with Mr Paton’s account was capable of being used to corroborate his evidence.
4.Dangerous Witness Warning grounds
4AThe learned trial judge erred in declining to give a specific direction, in the nature of a Faure warning, to the jury regarding the witness BC.
4BThe learned trial judge erred in declining to give a specific direction, in the nature of a Faure warning, to the jury regarding the witness DE.
5. Financial Evidence grounds
5AThe learned trial judge erred in admitting evidence of eight financial transactions said to involve “unexplained cash transactions” by the applicant. (The Crown initially sought to lead evidence of 11 financial transactions. The evidence in relation to three transactions was ruled inadmissible.)
5BAlternatively, admitting the evidence produced a miscarriage of justice, by exposing the applicant to the danger that the jury might use the material:
(ii)as circumstantial evidence inculpating the applicant, or
(iii)as evidence of corroboration of the account of Mr Stephen Paton.
6. Commercial quantity ground[3]
[3]An application to amend ground 6 of the Full Statement of Grounds was made and granted on 11 February 2008.
6A
1The learned trial judge erred in ruling that the expression “quantity of pure drug” in column 2 of Part 1 of Schedule Eleven of the Drugs, Poisons and Controlled Substances Act 1981 (“the Act”), is an expression that has a special or technical meaning.
2The learned trial judge further erred in alternatively ruling that the ordinary meaning of the word “pure” is the meaning that is employed in the “standards laid down in the principal reference work on the subject”, the British Pharmacopeia.
3As a result, the verdict on count 5 was unsafe and unsatisfactory in that:
-the verdict was unsupported by evidence of a commercial quantity of pseudo-ephedrine (or pseudo-ephedrine hydrochloride), there being no evidence of a commercial quantity;
-alternatively, the verdict was against the weight of the evidence with respect to the existence of a commercial quantity of these substances.
6B
1The learned trial judge erred
a.by directing the jury that the quantity of the drug alleged in count 5 was not in issue; and
b.by failing to direct the jury that the meaning of the expression “quantity of pure drug” in column 2 of Part 1 of Schedule Eleven of the Act did not encompass or include a quantity of any other substance in which a drug was contained or with which it was mixed.
2As a result, the learned trial judge erred in removing from consideration by the jury an element of the offence charged: that the Appellant trafficked in a quantity not less than the commercial quantity.
7. Aggregation of prejudicial evidence ground
7AA miscarriage of justice was occasioned by the Crown leading evidence which, in the event, was of little probative weight and significant prejudicial effect on any count, including count 5; such evidence including:
(i)the evidence that [the applicant] secured Paton’s resignation;
(ii)the evidence that [the applicant] threatened to kill Paton;
(iii)the evidence that [the applicant] threatened to kill witness 4/199;
(iv)the evidence that [the applicant] commended witness 4/199’s character to the Court of Appeal in 2001;
7BThe evidence originally mooted as consciousness of guilt evidence, but which the learned trial judge declined to allow to be so used, including:
(i)[The applicant’s] instruction to Sayce “don’t tell anyone”;
(ii)[The applicant’s] guilty conduct in recorded conversations of 16 January and 30 May 2001;
(iii)[The applicant’s] alleged lies in 15 March 2003 tape.
7CThe evidence of police finding allegedly relevant pseudoephedrine in raids on the Bandidos.
7DThe evidence of police finding allegedly relevant pseudoephedrine in the raid on Milne’s house on 16 June 2000.
8.Aggregation of errors ground
8AIn the event that one or more aspects of the above grounds are made out, a miscarriage of justice occurred by reason of that aggregation of errors.
The background
The applicant was a serving member of the Victoria Police. At the relevant time, he held the rank of Detective Senior Sergeant and was attached to the Drug Squad. His duties included participation in a covert operation, designated ‘Vere,’ which had as its focus particular groups of individuals believed to be implicated in the illegal trade in amphetamine based drugs. He held a senior position within a section of the operation identified as Unit 2, the activities of which were directed to the location of clandestine laboratories. The drugs produced in such laboratories include amphetamines, methylamphetamines and MDMA (ecstasy). An essential chemical for the manufacturer of these substances is pseudoephedrine hydrochloride (‘pseudoephedrine’), a common ingredient in medications for the relief of colds and flu, including the Sigma company product ‘Sudafed.’ The applicant’s primary responsibilities related to the activities of the ‘Chemical Diversion Desk,’ which as its name implies was concerned with cutting off supplies of the necessary chemicals to alleged operators. As part of his duties, he was involved in the authorisation of what were termed ‘controlled deliveries.’ Under this process, quantities of chemicals and equipment necessary for the manufacture of illicit drugs would be made available to undercover operatives and/or informers to supply to suspects with the purpose of following the material by way of covert surveillance through to the laboratories and to those engaged in this form of criminal enterprise. Understandably, the procedures under which the unit was to operate required that such deliveries be made only when there were sufficient resources available to monitor the movement of the chemicals on a 24-hour basis.
Background evidence[4]
[4]The summary of evidence set out in this judgment has been prepared from the transcript of the trial and the other materials provided to the Court. It hardly needs to be stated that it does not purport to represent the totality of the evidence adduced in relation to count 5 in the proceeding which was lengthy and does not refer to a substantial amount of evidence or witnesses called in relation to the other counts on which he was acquitted or count 1 where no verdict was reached.
Detective Superintendent David Barry Newton and other police officers stated that controlled deliveries of pure pseudoephedrine (the material encompassed by count 5), in distinction to medications containing this substance, were extremely rare and that the last one occurred around 1997 or 1998. In that case, approval was ultimately given by a Deputy Commissioner.
Malcolm Rosenes, a former member of the Police Force, was, at the time of the applicant’s trial, undergoing a term of imprisonment.[5] In 2000, he was a Detective Sergeant in Unit 2 of the Drug Squad and his subordinates were Detectives Senior Constables Paton and Firth.
[5]He had pleaded guilty to a number of counts of trafficking drugs for which he was sentenced on 24 October 2003.
Stephen Andrew Paton[6] was attached to the squad between March 1997 and the end of 2000.[7] His duties at the time with which we are concerned here, included the maintenance of liaison with and the making of payments to the drug companies that supplied chemicals for use in controlled deliveries.
[6]The convention has been adopted in this judgment of italicising the name of a witness where it first appears and where, unless it is specifically indicated or clear from the context, the evidence summarised was adduced from the witness.
[7]Paton had, prior to the applicant’s trial, pleaded guilty to trafficking pseudoephedrine hydrochloride between 28 October 1999 and 19 May 2000 and trafficking in a commercial quantity of pseudoephedrine between 9 May and 6 December 2000. The latter count, covered a series of transactions including the one encompassed by count 5 on the Presentment in this matter. At his plea hearing, Paton gave an undertaking to give evidence in any future criminal proceedings.
The Drug Squad predominately secured its supplies from ‘Science Supplies’ and ‘Sigma Pharmaceuticals’ (‘Sigma’). Sigma was the squad’s sole supplier of Sudafed tablets and pseudoephedrine. When advised by a supplier that the chemicals requested were available, Paton would travel by car to the relevant factory and collect them. Pseudoephedrine could only be obtained from Sigma’s Croydon factory whereas Sudafed tablets were secured from its premises at Clayton.
At Croydon, where he dealt with one of two employees, Ian McKinley-Nicholson or David William Guy, Paton usually had only to telephone ahead and the security guard would admit him upon arrival. The price of pseudoephedrine purchased from Sigma was $170 per kilogram.
BC stated that he had been a serving police member between 1972 and 1997. In the period 1990 to 1997, he too was a Detective Sergeant attached to Unit 2. In the course of his duties, from time to time, he received information from a Police Informer, DE. After he resigned in 1998 or 1999, he was told by DE that, if chemicals were provided to certain persons, including a man named Mark Moran, they could lead the police to another person of interest, Antonious Mokbel. BC conveyed this information to the applicant, pointing out what he perceived to be a unique opportunity to target Mokbel.
In consequence, Operation Vere was commenced and quantities of chemicals and related paraphenalia were supplied to Moran. BC took possession of chemicals handed to him by the applicant and passed them on to DE to be delivered to Moran. The money handed over by DE for these materials was then passed back to the applicant. Usually the cash was provided beforehand and the chemicals were delivered between two and seven days later. BC stated that the prices for the products were set by the applicant. It was BC’s belief, based upon his conversations with the applicant, that he was an unregistered informer and that he had been granted immunity with respect to offences involved in his participation.
BC would meet the applicant in the vicinity of BC’s office in Holmes Road, Moonee Ponds. He normally met DE in the same general area. It was his understanding that all deliveries of chemicals were carried out under surveillance. The materials supplied consisted, for the most part, of quantities of Sudafed tablets, but included other chemicals, such as red phosphorous, caffeine and a bonding agent (usually lactose gel).
DE served as a member of the Victoria Police between 1976 and 1984. In the 1990s, he formed a friendship with BC. DE stated that, in late 1999 or early 2000, BC became aware that he knew Mark Moran and suggested that the Drug Squad might be interested in conducting an operation whereby DE passed materials for the manufacture of amphetamines to Moran by way of controlled deliveries, indicating that the principal target of the operation would be Mokbel. DE stated that BC requested that he ask Moran whether he would be interested in buying such materials.
According to DE, he understood that he would only assist the police in obtaining evidence and that he would never be required to enter a witness box. He stated that he agreed to participate on the understanding that the operation was under the direct control of the Drug Squad.
When he told Moran that he could secure some Sudafed tablets, Moran initially responded that he would think about it but, shortly afterwards, requested him to proceed. He stated that his early discussions with Moran were face-to-face and that in respect of all further dealings, he waited for Moran to make a short telephone call directing him to meet somewhere. The proposed transactions were never discussed over the telephone.
David William Guy was Plant Manager at Sigma Pharmaceuticals. He gave evidence of the internal procedures and documentation required to requisition quantities of chemicals from the company and stated that Sigma did not provide unmixed pseudoephedrine to any person or entity other than the Drug Squad. On some occasions when this material was sought, Guy was directly contacted by Paton. On others, Nicholson was contacted by the applicant and the request was forwarded to Guy.
Peter James Thomas, was, in May 2000, National Security Manager for Sigma. He acted as Sigma’s liaison person with the Drug Squad which was represented by Paton. An exchange of emails between Thomas and Nicholson on 9 May 2000[8] demonstrated that Thomas was alert to the security issues for these purchases. On that particular day, the squad had purchased a significant quantity of Sudafed and Thomas stated that he experienced no concern from the company’s viewpoint because the dealings were confined to the same police officer and it was not necessary to ascertain his identity every time he attended.
[8]The exchange of emails was tendered as Exhibit 60.
Graeme Lionel Sayce was a police member from 1981 until March 2000 and between October 2001 and August 2006. In the period between March 2000 and September 2001 he was employed by a company operating as the Strategic Security Alliance Group (SSA), the clients of which included Sigma Pharmaceuticals. SSA provided a security consultation and guarding services for Sigma Pharmaceuticals. Accordingly, Sayce worked with Sigma officers, Thomas and Nicholson. During his employment with SSA, Sayce was aware that Paton was the main contact person between Sigma and the Drug Squad for the purpose of purchasing chemicals or drugs. The contact person at Sigma was Thomas or his assistant Debbie Sierakowski. Sayce recalled seeing Paton at least once and possibly twice at the Clayton plant during 2000.
Count 5
DE stated that, in late April 2000, Moran made a request for pseudoephedrine, which he (DE) then passed onto BC, whose initial response was that pseudoephedrine would not be available. However BC subsequently indicated, in May, that it could be provided in small quantities if Moran wanted it. DE stated that he so informed Moran who said that he was interested.
When he was advised by the applicant that a kilogram of this substance could be provided at a price of $12,000, BC conveyed this information to DE, who confirmed that it was wanted. BC said that he informed the applicant of this response, who approved the transaction.
Paton stated that he was directed by the applicant to secure two kilograms of pseudoephedrine and that he then followed the normal procedure of contacting either Guy or Nicholson by telephone.
18 May 2000
On 18 May 2000 at about 11.14pm, Nicholson forwarded an email to Guy requesting the supply of two kilograms of pseudoephedrine to Paton by 2.00pm the next day.[9]
[9]Exhibit 54.
19 May 2000
Paton had two mobile telephone accounts.[10] One of them was in his own name, while the other was in the false name, ‘Craig Grundy’.
[10]Exhibit 62 depicted a series of colour coded chronological charts of the telephone calls made from mobile telephones owned or held by the persons of interest in this matter. These charts were compiled from relevant call charge records for each mobile telephone. The telephone call charge records also recorded the location of the nearest mobile telephone base station at the time of each call. Therefore it is possible to establish, within certain limits, which region a mobile telephone is located in at the time of a particular call being made.
On 19 May 2000, Paton used police motor vehicle registered PWE-990. The log for that vehicle recorded that it was signed out at 6.10am, on 19 May 2000, was returned at 11.10pm and had travelled about 50 kilometres that day.
DE who was living in the country stated that he made arrangements to travel to Melbourne on Friday 19 May 2000 for the purpose of the proposed drug delivery and also to meet his brother for lunch.
BC made a telephone call to DE at 8.37am. He stated that that call was to ascertain what time DE would be in Melbourne.
DE made a telephone call to BC at 9.42am while in the Essendon area. He stated that, by this time, he had already collected the money from Moran who he had met behind a garage in Curzon Street. BC was recorded to have made a telephone call to the applicant at 9.44am.
DE’s next call to BC was at 10.14am from the Essendon region. He made another telephone call to BC at 10.33am from the Maribyrnong area. An unrelated call was made by DE at 11.02am also from the Essendon area.
Paton made a call from his ‘Grundy’ telephone at 10.48am to Nicholson at Sigma. A further call was made to Sigma Croydon at 10.52am. Paton stated that this latter call was to indicate that he was on his way.
A telephone call by DE to BC was made at 11.41am from the Ascot Vale area which placed him as quite close to BC’s office at Moonee Ponds.
DE stated that calls recorded at 11.51am and 12.01pm in the Parkville area related to his arrangements to have lunch with his brother. The next two telephone calls made by him at 12.05pm and 12.55pm were also from the Parkville area.
BC made a telephone call to the applicant at 12.05pm and two further calls at 12.21pm and 12.22pm.
BC made a call to DE at about 12.34pm which BC believed was close to the time that he met DE in the vicinity of his office.
According to DE, upon arrival at BC’s office, he was advised that the amount of pseudoephedrine would be two kilograms at a price between $12,000 and $14,000. He stated that he then went to obtain the money from Mark Moran.
While Paton was in the Knox region, he made a call to Detective Senior Constable Firth at 12.38pm and then one to the applicant at 12.43pm.
Telephone records indicated that Paton made a telephone call to ‘Sigma Clayton’ at 1.29pm.[11]
[11]Exhibit 62.
David Guy went to the relevant vault at Sigma’s Croydon plant where two kilograms of pseudoephedrine were measured out and the drugs were dispensed into a heavy-gauge plastic bag which bore a label identifying the material with an item number, a batch number, a date and a quantity. He placed that bag into a brown paper bag before taking it out for collection.[12]
[12]An internal material requisition order filled out by another employee, identified this packed quantity as ‘Item No. 075862’ taken from ‘Material Batch No. R14189.’ This order form was checked and signed by David Guy (Exhibit 53).
Usha Gulapalli is a chemist who was employed by Sigma Pharmaceuticals in 1999 and 2000. A test was conducted by her on the batch from the two kilograms extracted on 19 April. It was found to consist of pseudoephedrine hydrochloride with a purity of 99.7 per cent. She stated that, according to British Pharmacopeia standards which have a testing error margin of plus or minus one per cent, the material was pseudoephedrine in the purest state possible.
The receipt for the collection of two kilograms of pseudoephedrine on 19 May 2000 was signed by both Paton and Guy[13] and was in the amount of $340.10. That document also records that payment by cheque was not received until 15 August 2000. This transaction is also recorded in Sigma’s computer records.[14]
[13]Exhibit 55.
[14]Exhibit 57.
Payment for the material was made by way of a Bank of Melbourne bank cheque dated 20 June 2000 and purchased with cash by Mr S Paton. The cheque was received by Sigma under cover of a memorandum addressed to Guy from Paton.[15]
[15]Exhibit 56.
After Paton collected the pseudoephedrine which was packaged in a heavy-duty plastic bag inside a heavy duty brown paper bag, he then made a telephone call (at 1.24pm) to the applicant. He said that he was not certain whether it was at this time or in a later call that he told the applicant that he had picked up the material and requested instructions as to where to meet him.
Telephone company records indicate that:
· DE made an unrelated telephone call from the Parkville region at 1.29pm, another to BC at 1.30pm and an unrelated call at 1.47pm, also from the Parkville region.
· Paton made two further telephone calls to the applicant at 1.44pm and 1.45pm.
· A telephone call was made by BC to the applicant at 1.53pm.[16]
· Paton made a telephone call to the Victoria Police Switchboard from the North Melbourne region at 2.01pm and another from the Port Melbourne region at 2.02pm.
[16]BC gave evidence that he telephoned the applicant to let him know that he had the money and to arrange a meeting and time. BC said that he had earlier received the money from DE.
Paton stated that he received instructions by telephone from the applicant to meet him at the Shell Service Station off the Westgate Freeway, near the eastern approach to the Westgate Bridge. Upon arriving there, he drove into the parking area at the rear of the service station where he recognised a dark green Toyota Vienta that was normally driven by Detective Inspector Reid. The applicant was seated in the car alone. Paton placed the package he had collected in the rear seat of that vehicle. He was not aware of any surveillance being put in place for this transaction and did not arrange for any.
A telephone call was made by the applicant to BC at about 2.11pm from the Port Melbourne area.
BC then went to an area behind the VicRoads Office beside the Westgate Freeway and waited. In due course, the applicant arrived driving a grey Toyota Camry. The applicant got into the passenger side of BC’s car and handed BC the plastic bag containing the pseudoephedrine. The applicant then left.
BC telephoned DE at 2.36pm.
At 2.53pm DE made an unrelated telephone call from the Sunshine North area. He stated that this call was made shortly before his meeting with BC at around 3.00pm.
DE stated that, after he collected the money from Moran, he waited for a call from BC advising of the place where they were to meet. When contacted, BC told him to go to a petrol station situated on the Western Ring Road, off the northbound side, heading towards Melbourne Airport. DE stated that he went there and waited. BC arrived and handed over the pseudoephedrine which was contained in a black sports bag in exchange for the purchase money. DE stated that they were together less than five minutes.
BC said that he drove to the service station, where DE was waiting, and handed over the plastic bag containing pseudoephedrine. BC saw DE drive away along the Ring Road towards the airport and then contacted the applicant on his mobile telephone advising him of details concerning DE, it being his normal practice to do so for surveillance purposes. He stated that he then returned to his office.
At 3.24pm DE made a telephone call to BC from the Beveridge area in the course of his return to Euroa.
At 4.34pm BC made a telephone call to the applicant.
DE stated that, upon his return to Euroa, he tested the powder to ensure that it was pseudoephedrine, employing a method that Moran had described to him. This involved the placing of a small amount on some silver paper and holding a cigarette lighter flame underneath until the powder melted into liquid. He had been told that, if genuine, when it cooled the powder should return to its original form. DE confirmed that the weight of the material he collected was two kilograms.
Some documents relating to 19 May 2000
Paton’s diary for 19 May 2000 recorded that he commenced work at 7.30am on Friday, 19 May, and ceased at 5.30pm having been ‘ON DUTY AT OFFICE, CORES & ENQ RE OPERATION VERE.’[17]
[17]A copy of that entry was tendered as Exhibit 71.
BC identified the Log Book entry for police motor vehicle PKR-150, a Toyota Camry, for 19 May 2000, as having been filled out in the applicant’s handwriting[18] and recording a car trip commencing at 1.50pm and ending at 2.50pm with odometer readings indicating that a distance of 18 kilometres was travelled. Save for two other entries on that page recording the vehicle being used by the applicant, all other entries indicated use by ‘D REID’ – ‘DDI’. BC also identified the handwriting in the Police Diary as that belonging to the applicant.[19]
[18]That Log Book entry was tendered as Exhibit 95.
[19]Exhibit 96.
Evidence of subsequent events
DE stated that the two kilogram package he had collected from BC was delivered to Moran in the Essendon area in the first week of June 2000.
Jeffrey Robert Milne occupied a bungalow at the rear of premises in Bell Street, Airport West. He stated that in the period prior to the murder of Mark Moran, on 15 June 2000, Moran commenced using his bungalow as a place to keep some of his drug manufacturing equipment and other items.
16 June 2000
After the death of Moran the police obtained a warrant to search Milne’s bungalow. It was executed on 16 June 2000 by Drug Squad members, Paton, Firth, Rosenes, Jones and Arnott. Various items of drugs and drug-trafficking paraphernalia and laboratory glassware were located.[20] In a cupboard on the premises was a bag of white powder which Paton recognised as the one that he had delivered to the applicant on 19 May 2000. However he did not mention this to anyone.
[20]Exhibit 34.
DE stated that the bag and the bag of white powder contained therein[21] were similar to the package he had received from BC.
[21]Photograph 33.
Rosenes was involved in the collecting of the items taken from Milne’s bungalow. Upon his return to the Drug Squad office, he had them set out on his desk. They included three bags of white powder, one of which weighed two kilograms (and identified as the one in Photograph 33), while the other two weighed about half a kilogram each. He conducted spot tests to ascertain whether they were drugs. The test for amphetamines was negative for all. Most of the other detectives, including the applicant, gathered behind Rosenes as he completed his amphetamine tests. At this point, the applicant came forward, put his finger into the large white bag, put it to his mouth, tasted it and told everyone that it was pseudoephedrine. Rosenes had not conducted any test for pseudoephedrine at that stage. Rosenes stated that, ‘I thought it was a pretty brave and gutsy move of him to do that, not knowing what the powder was.’ He said that, notwithstanding what one saw in the movies, Drug Squad members were trained to behave much more carefully when handling chemicals that had not been identified.
Later in the evening, after Milne was arrested, Paton asked Rosenes to remove some of the pseudoephedrine from the larger bag. He complied and took the three bags of white powder down to the car park of the St Kilda Road police complex, where he placed them in a Nissan four-wheel drive vehicle that was used by the squad. He then drove to Toorak Road and ordered some pizzas for the detectives and Milne to eat that night. While they were being prepared, he went to a supermarket in Clarendon Street, South Melbourne, where he purchased two packets of Glucodin powder and requested several extra white plastic shopping bags. He collected the pizzas and returned to the basement of the St Kilda Road Police Complex. After taking the food to the office, he went back to the vehicle where he removed half the contents of each of the three bags of white powder, and substituted the equivalent quantities of Glucodin. In the process, he spilt some of the powders in the back seat area. He then took the three adulterated bags upstairs to the Drug Squad offices and re-weighed them to ensure that they tallied with the weights he had previously obtained. At this stage, he believed that the smaller bags also contained pseudoephedrine. Subsequent analysis disclosed that this was not the case and that they actually contained ketamine. He had, in consequence, mixed both ketamine and Glucodin with the pseudoephedrine. The powder he had removed from the bags was taken home.
19 June 2000
On 19 June 2000, the three bags of white powder that had been retained at the Drug Squad were taken by Rosenes to the Victorian Forensic Science Centre and examined by Eleanor Sear, a forensic scientist, in his presence. The large bag weighed 2488.2 grams and the other two bags combined weighed 992 grams. The contents of the smaller bags were 50 per cent Ketamine and the large bag was six per cent Ketamine. The large bag also contained 35 per cent pseudoephedrine. Sears said that there was a margin of variation of 20 per cent in respect of all estimates of purity.[22]
[22]The three bags of white powder were subsequently re-analysed by Aaron Heagney, a senior chemist of the Australian Forensic Science Laboratory in Sydney, who returned percentages of 29.9 and 35.7 per cent respectively, for each of the two smaller bags while the larger bag was 3.9 per cent Ketamine. He found that the large bag was 25.5 per cent pseudoephedrine with the balance being dextrose sugar. With respect to the Ketamine analysis, he stated that he did not have a methodology for the quantification of that material that had been validated as accurate. He expressed the opinion that he would put more weight on Sears’ results.
Rosenes’ account of the dispersal of the removed powder
Rosenes stated that he told Paton that he had removed the powder as requested. He kept it at his home for at least a month before speaking again with Paton. It was his understanding that Paton had intended to sell it to an informer and that the transaction had fallen through. Rosenes stated that, at Paton’s suggestion, he then approached one of his own informers and supplied him with a one ounce sample. However the informer contacted him some days later and said that the purchasers were not satisfied with the purity of the material. At another meeting, the informer took a pound of the powder in exchange for $800 on the understanding that a balance of $4,000 would be paid after it had been supplied to the informer’s client. Rosenes stated that Paton and he maintained observation over the informer’s premises and saw a known drug-trafficker go to the house to collect the powder. They followed that person’s vehicle to the vicinity of another known drug trafficker. He stated that they subsequently met with the informer and were told that he had not been paid and that he did not anticipate that he would be because the purchasers were not happy with the quality of the material supplied. Rosenes said that the powder remaining in his possession was subsequently flushed down the toilet.
Late 2000
Sayce said that he recalled a discussion with Thomas in late 2000, about the need to arrange a meeting with the Drug Squad to review the policies and procedures relating to the purchase of pharmaceutical products from Sigma. Thomas had raised this issue as a consequence of his impression that there had been an increase in the frequency and volume of such transactions. Sayce stated that he agreed and attempted to arrange a meeting without success.
18 December 2000
Sayce recalled an occasion in mid-December 2000, on which Thomas and he had travelled interstate and they met at Sigma’s Brisbane premises. After his return to Melbourne on Monday 18 December, he attended at the Clayton plant for a meeting with Thomas, who told him that, while he was in Brisbane, Paton had asked Thomas’ assistant, Debbie Sierakowski, what Sayce knew about the purchases of Sudafed tablets on behalf of the Drug Squad, indicating that it was important that he not be made aware of the specific details as he was not a member of the Police Force and these were covert operations. Sayce was troubled by this report which in conjunction with the apparent increase in the Drug Squad purchases had the effect of emphasising in his mind the importance of reviewing the policies and procedures for sales to the squad.
19 December 2000
On the following day, Tuesday 19 December 2000, at about 9.15am, Sayce contacted the Drug Squad and asked to speak to the applicant who was Acting Inspector in charge of Unit 2 at the time. However, as he was not available, Sayce spoke to Detective Inspector John David Shawyer, who was in charge of Unit 3.[23] Although much of their conversation related to social matters (they were friends), Sayce told Shawyer that he had telephoned to speak to the applicant about concerns he had with respect to the security processes in place for the sale of chemicals by Sigma to the squad. Sayce asked Shawyer to request the applicant to telephone him.
[23]That unit was concerned with the investigation of Asian Heroin Trafficking.
Shawyer recalled that Sayce told him that he was conducting an audit of the procedures for selling chemicals to the Drug Squad and mentioned that the paperwork was not up to the standard he would have liked. Shawyer passed the message to the applicant between 9.15am and 12.30pm.
Later that day, Sayce received a telephone call from the applicant to whom he conveyed his wish to meet concerning policies and procedures. He pointed out that there was an increase in the frequency and volume of sales and that he was troubled by the comment that Paton had reportedly made to Sierakowski. They agreed to meet that afternoon at 1.00pm at a café in Albert Road, a short distance from the St Kilda Road Police Complex. Sayce believed that he either faxed some documents relating to these sales to the applicant or informed him of their contents over the telephone.
When they met, they discussed the increase in frequency and volume of purchases and the need to review policies and procedures. Sayce told the applicant that the comment made by Paton was surprising because only a few weeks earlier, Sigma had requested that he be present when the police had purchased a large amount of pseudoephedrine-based tablets. It had been indicated to him that his presence was required so that he could verify to Sigma staff that the persons collecting the drugs were members of the Drug Squad who were personally known to him.Sayce stated that the applicant asked him to obtain documentation pertaining to the sales of drugs, expressing particular interest in purchases made after a date in May 2000. It was agreed that they would meet again in the New Year to review the issues of policies and procedures. He said that the applicant did not give any indication as to whether he regarded the purchases from Sigma as legitimate or otherwise.
20 December 2000
On Wednesday, 20 December 2000, Sayce collected an envelope from Thomas containing copies of the documents relating to all purchases made by the Drug Squad.
At 9.20am Shawyer spoke to his superior, Detective Superintendent Newton, about the call he had received from Sayce on the previous day. He said that great importance was attributed to the relationship they had with Sigma and he believed it was his duty to pass on such information. He did not believe however that anything improper or untoward had actually occurred.
At about 9.10am, Newton and the applicant had a discussion in Newton’s office. Newton noted in his diary that three different issues were discussed. One of the notations was, ‘Pending Query – Sayce Chemicals.’ Newton formed the view that Sayce had contacted the applicant about what appeared to be suspicious transactions and, in consequence, the applicant was directed to prepare a briefing paper.
Newton spoke to the applicant again at 11.50am and was advised that he had made contact with Sayce and that a list of the chemicals obtained was being cross-referenced to operations.
In the afternoon, Sayce was present at a Christmas function with an SSA client, when he was contacted by the applicant who asked whether he had the documents relating to sales of materials to the squad and where they were located. Sayce responded that he intended to arrange for them to be delivered to the applicant sometime that afternoon. Otherwise he would endeavour to have them forwarded on the following day.
21 December 2000
On Thursday, 21 December, at 2.25pm, Newton contacted Commander Sprague at the Ethical Standards Department (ESD) and advised him of the drug diversion issues in order to alert him to the possibility that they may have had a problem. He reported that a member of the Drug Squad may become the subject of an investigation and, accordingly, that the matter had to be handed over to ESD.
At about 3.30pm, Newton received a further update from the applicant who now had advice from Sayce.
21 December 2000
On Thursday, 21 December, Sayce met with Nicholson at Sigma Pharmaceuticals.[24] They discussed the sales of pseudoephedrine-based tablets to Paton. Nicholson told Sayce that Paton had been involved in the purchase of pure pseudoephedrine on four or five occasions, including a quantity of two-and-a-half kilograms on 19 May 2000. Sayce was told that Paton had advised the Sigma officers that this was required for a covert NCA Operation. Sayce stated that this was the first time that he had heard about pure pseudoephedrine being provided to the Drug Squad.
[24]His diary records that it was scheduled for 8.30am.
After the meeting, Sayce attended to other appointments before making contact with the applicant. They met at about 11.20am in Bowen Crescent, on the corner of St Kilda Road, near the St Kilda Road Complex. Sayce handed the documents over to the applicant who remonstrated with him for having told Shawyer about what was happening as Shawyer had pre-empted the issue with the applicant’s immediate superior. He said that this had caused him embarrassment. Sayce told the applicant, who appeared to be aware of them, that he had learned of the sales of pure pseudoephedrine from Sigma to Paton.
In a later conversation, the applicant requested the originals of the copy documents that had been provided to him. Sayce returned to Sigma where they were retrieved. He was present when a facsimile transmission, used as a check sheet for identifying and collecting the original documents for each transaction, and setting out dates of details of the various transactions in 2000 from 9 May 2000 onwards, arrived from the applicant.[25] The transactions listed related to the purchase of Sudafed tablets only.
[25]That facsimile transmission document has been tendered as Exhibit 99.
Afterwards, Sayce contacted the applicant and told him that he had the transaction records. The applicant told Sayce to retain them because the matter was now in the hands of the ESD and the documents would be collected by them in due course.
Paton stated that on the night of 21 December 2000, he received a visit from Rosenes who told him that there were issues regarding the Sudafed transactions and that it had been decided that it was in the best interests of everyone if Paton resigned.
22 December 2000
Paton then typed a letter of resignation which he signed and gave to the applicant. According to Paton, the applicant said at that time, or shortly afterwards, that if Paton said anything about him, he would hunt him down and kill him. Paton then went on leave and never returned to the office.[26]
[26]A printout of the letter of resignation typed up by Paton was tendered as Exhibit 93.
At 9.30pm, Newton received the briefing paper that he had requested the applicant to prepare.[27]
[27]This briefing paper was tendered as Exhibit 100.
23 December 2000
On Saturday, 23 December, Newton received a telephone call from the applicant who informed him that Paton had resigned and that his resignation was effective immediately. He did not recall the applicant saying anything as to the reasons behind Paton’s decision and the applicant gave no indication that he was in any way responsible for or involved in it.
At 12.30pm, Newton contacted Commander Lambert. Newton had already decided that he was not going to accept Paton’s resignation and would require the giving of the minimum three months notice applicable to his contract of employment.
Newton then telephoned Paton and told him that he would not accept his resignation unless he could produce a letter from an employer saying that he would be in a position to take up employment immediately. He said that, if he could not do so, the resignation would be effective from the following March.
27 December 2000
On 27 December, Commander Fontana briefed a team for an investigation into the transactions involving Paton, which was designated ‘Operation Hemi.’ He had the briefing paper that the applicant had provided to Newton on 22 December. Detective Inspector De Santo was placed in charge of this investigation. Fontana believed that he had telephone contact with the applicant on that day.
At 9.20am, Newton told the applicant that Paton’s resignation was not accepted, that three months notice was required and that all outstanding issues were to be addressed.
28 December 2000
On 28 December at 10.30am, Fontana met the applicant at a café in South Melbourne. The purpose was to inform the applicant of the membership of the investigation team and to ascertain which members of the Drug Squad could assist them with their enquiries. The applicant advised Fontana that Paton had intended to resign 12 months earlier and that his motivations included the considerations that: Paton had been under a deal of pressure and knew that he was going to be relocated; Paton’s father, who lived in Queensland, was dying of cancer; Paton’s paper work was poor due to pressure from several areas; a number of overdue property files were missing along with telephones that he had used as well as a computer that had been taken from the property store; and Paton’s third marriage was in trouble. Fontana stated that the applicant and he discussed the unauthorised deliveries. The applicant agreed to assist by providing any Drug Squad documentation relating to his audit of the chemical diversion programme. At this stage, the concerns of the witness related to the possibility that Paton had been trafficking Sudafed tablets. The only mention of pseudoephedrine in the conversation was made in reference to an unconnected importation of that chemical.
Between 22 December 2000 and 3 January 2001
At a time which Sayce placed as being between 22 December 2000 and 3 January 2001, he had a conversation with the applicant in which the applicant said that he did not want anyone to be told about the sales of pure pseudoephedrine from Sigma. Sayce assumed that this was because it was part of an ongoing investigative operation.
3 January 2001
On 3 January 2001, Sayce received a telephone call from Detective Superintendent Fontana of the ESD. Fontana’s notes of this conversation were read to the court and the matters related by Sayce included the supply of two kilograms of pseudoephedrine on 19 May 2000 to Paton.
13 February 2001
Detective Senior Sergeant James Dwyer was brought into Operation Hemi on 5 January 2001. On 13 February, he spoke to Nicholson at Sigma’s Croydon Plant who advised him that there had been a number of sales of pure pseudoephedrine as well as Sudafed tablets. He asked Nicholson to gather together as much information as he could in respect of those transactions.
14 February 2001
On 14 February 2001, the applicant provided a one-page report entitled ‘Audit of Chemical Purchases from Science Supply – Discrepancies Found.’[28] This report related to purchases of acetic-anhydride from ‘Science Supply.’
[28]The copy of that report was tendered as Exhibit 102.
28 February 2001
On 28 February 2001, at 1.30pm, Newton attended a meeting at the ESD at which the applicant and Inspectors De Santo and Taylor were present. The applicant was asked whether his audit had disclosed any pure pseudoephedrine purchases. The applicant said there had been no authorised purchases since 1998. Otherwise no other issues were raised about pseudoephedrine. The applicant did not indicate that he had any knowledge of pseudoephedrine having been supplied to Paton.
27 March 2001
On 27 March 2001, Taylor had a conversation with the applicant who reported that he had proceeded as far as he could in relation to his enquiries with the chemical companies and that he had not identified any further incidents. Taylor told him that the ESD would require statements from Newton and himself as well as other documents and details about Paton. No reference was made to pure pseudoephedrine hydrochloride in this conversation.
30 March 2001
On 30 March, Taylor had another meeting with the applicant in a café on St Kilda Road. Again there was no discussion about pseudoephedrine hydrochloride as distinct from Sudafed tablets.
3 April 2001
Dwyer said that, on 3 April, he attended Sigma’s Croydon Plant and spoke to Nicholson and Guy and obtained a number of documents relating to five separate purchases of pure pseudoephedrine. A meeting was conducted at 11.30am at the ESD office between O’Dwyer, Taylor and the applicant in the course of which the applicant was provided with a copy of these documents. The applicant was directed to conduct an audit in relation to their contents and to check Drug Squad records for comparison. The documents related, inter alia, to the supply of pseudoephedrine on 19 May 2000. The applicant did not give any indication that he had knowledge of any of those transactions.
31 July 2001
On 31 July, Paton was arrested.
20 August 2001
On 20 August 2001, Fontana took a statement from the applicant for inclusion in the Brief of Evidence being compiled in respect of Paton.[29] In that statement, he set out the findings made in the ‘audit’ conducted after 19 December 2000. He asserted that he had no knowledge of the unauthorised collections of Sudafed and other chemicals. He advised that there were no authorised collections of pseudoephedrine during the period 1999 and 2000. He stated that only one controlled delivery of pure pseudoephedrine was ever conducted. That was made in August 1998 and the quantity was 10 kilograms. He said that other operations were conducted where a substitute product was used. The use of pseudoephedrine in quantities greater than 20 grams would, he understood, only be authorised in exceptional circumstances and never without the approval of an Assistant Commissioner.
[29]A copy of that statement has been tendered as Exhibit 101.
13 September 2002
On Friday, 13 September, prior to a lunch to be held by the Major Crime Squad, BC and the applicant met in a coffee shop near BC’s office and discussed the ESD investigation of the pseudoephedrine transaction on 19 May 2000. According to BC the applicant said that, ‘it never happened’ and indicated that this had to be made clear to DE as well. After this meeting, BC contacted DE to pass on what he interpreted as a direction.
25 October 2002
The police intercepted a series of telephone calls between the applicant and BC that took place on 25 October.[30] The first was quickly terminated because BC had someone in the office. The second sounded out the prospect of a meeting later in the day. During the third call, the applicant said that he would be ‘dropping in’ shortly and BC said that they would meet at the coffee shop.
[30]The recordings and transcripts of most of those calls at 9.38am, 9.44am and 11.32am were respectively tendered as Exhibits 84, 85 and 86.
4 November 2002
A telephone call, on 4 November, between BC and the applicant in which there was reference to Inspector De Santo was also intercepted.[31] They discussed the approaching Oaks Day races at Flemington and agreed to meet then.
[31]The transcript and recording were tendered as Exhibit 87.
Oaks Day 2002
BC recounted that they met in the Bird Cage area at Flemington Racecourse and that, in the course of their conversation, the applicant handed him a list in the applicant’s hand writing of the dates of authorised drug transactions.[32] BC noticed that it did not include any which had occurred prior to January 2000 or the transaction of 19 May or make any reference to pseudoephedrine.
[32]That document was tendered as Exhibit 88.
In January or February 2003, BC and the applicant met at the coffee shop near BC’s office. Again, BC said the applicant emphasised the importance of maintaining the stance that, as far as they were concerned, the pseudoephedrine transaction of 19 May had not occurred.
11 March 2003
On 11 March, the police intercepted a telephone call between the applicant and BC which commenced at about 11.11am.[33] In that call they discussed meeting again in the near future.
[33]The recording and transcript of that call were tendered as Exhibit 89.
15 March 2003
Police intercepted a telephone call on 15 March, between the applicant and BC commencing at about 12.20pm, followed by further calls at 12.37, 12.51 and 12.53pm.[34] These calls were a lead up to a meeting at the McDonald’s store at the intersection of South and Warrigal Roads, Moorabbin. BC attended, fitted with a covert sound recording device.[35]
[34]Recordings of those calls from the transcripts were tendered as Exhibits 90, 91, 92 and 93.
[35]The tape-recording made of the meeting and the transcript thereof was tendered as Exhibit 94.
BC indicated to the applicant that they had a problem with DE who he identified as ‘our little mate up the bush, up north’. He said that DE had been questioned by investigators on the previous day and was very agitated. BC said DE had tried to contact him about it immediately afterwards and that they had spoken at about 7.00am that morning. DE had told him that he was not asked anything about the tablets and that ‘they’re zeroing in on that fuckin’ pseudo … and what’s really …’ At that point the applicant interposed, ‘Cos we don’t know anything about it.’ The applicant then said that he assumed that Paton had given them a ‘story line’ and that they must have been ‘running with it.’ BC said that he (BC) had been asked questions about matters that Paton ‘wouldn’t or shouldn’t even know.’
Further discussion ensued about what Paton might have said or might say. The applicant said, ‘… he’ll be standing in the box declaring that he’s working for the police. Is he prepared to [sic] that?’
BC responded that he would go and ‘re-align’ him (Paton) again.
The applicant said that it was up to him (Paton) and pointed that ‘… he could be interviewed as many times as he wants … He knows the rules, he doesn’t have to make any comment.’
The applicant stated that, when he was ‘spoken to,’ he would not be making any comment –
I’m not going to give them the pleasure of giving them a thousand answers to a thousand questions when they might find something that’s just not quite right.
He pointed out that BC would also be interviewed and that he had ‘to make no comment as well.’
The applicant told BC, ‘If you make a statement you’re in the same boat … ’
BC said that he was ‘not planning’ on it.
BC went on to say, ‘No, you’re the brains of the operation, you can fix it up …’
The applicant replied, -
No – I am not too happy about it. So that when it is, all criminal matters are thrown aside and they wish to go down the path of the disciplinary ones, well they can’t interview me on those and I will not … and then I can tell you get fucked.
17 March 2003
On 17 March 2003, the applicant was arrested.
2 June 2003
The motor vehicle in which Rosenes had mixed Glucodin into the white powders was a green Nissan Patrol registration number QSD-083 that, in early 2001, was sold to Peter and Jenny Nugent. It was usually driven by Mrs Nugent and the interior had not been altered since purchase.[36]
[36]It was accepted that the vehicle was secured and normally parked in the Nugent residence when not in use. Exhibit 38 - Admission of Fact.
On Sunday 2 June, the car was driven to the Victorian Forensic Services Centre at Macleod where it was examined by forensic officer, Peter Ross, who used a commercial vacuum cleaner fitted with an inline filter to remove material from specific areas of the carpet and the seats of the vehicle as well as the underside of the foot mat. The filter was removed and replaced for each separate area. Six such filters were separately bagged by Ross.
These filters were examined by Aaron Heagney of the Australian Forensic Science Laboratory in Sydney. The residue collected from the rear passenger bench seat contained pseudoephedrine and ketamine. A similar finding was made in respect of the rear passenger’s compartment floor and on the rear passenger floor mat.
Betterment Evidence
Gerard Curtin, a forensic accountant, employed by Victoria Police, analysed the applicant’s banking records for the period 1 January 1999 to 31 December 2000.[37] He attempted to obtain all vouchers, deposit slips, withdrawal slips and cheques in respect of both of the bank accounts that he had and succeeded in obtaining most of them.
[37]Exhibit 107.
Insurance records were also examined to ascertain whether any rebates or refunds had been paid by Medicare and Medibank Private. The records of Ord Minnet, Stockbrokers, of purchases of shares by the applicant were examined. So were VicRoads records relating to the sale of the motor vehicle by the applicant and other records including tax returns.
Curtin created a chronological spreadsheet setting out all the transactions that he could detect.[38] This spread sheet excluded cash transactions under $100 unless they occurred within a bank statement. He did not count any transfers between the two bank accounts which in this case consisted of one transfer of $6,000. Wherever a receipt could be obtained for cash payments they were matched up with any relevant cash withdrawals.
[38]This spreadsheet was tendered as Exhibit 108.
Curtin also prepared a monthly cash-flow summary which set out the estimated monthly flow of money into the applicant’s bank accounts and the outflows.[39]
[39]This summary was tendered as Exhibit 109.
Finally, Curtin produced a short chart of eight cash transactions for which Curtin could not find a source. Three of them were prior to 19 May 2000.[40]
[40]Exhibit 110 - Annexure 4.
Transaction 4 was a cash payment of $4,620 comprising 92 fifty dollar notes and a twenty dollar note for an invoice sum of $4,607 for 2000 Voicenet shares which was made on 7 June 2000 at 2.57pm at the Westend Branch of the Westpac Bank. The order for those shares was placed with Ord Minnet on 2 June 2000.
Transactions 5 and 6 were a cash payment amounting to $1,300 to Carpet Call Proprietary Ltd. The applicant admitted, pursuant to s 149A Evidence Act 1958 that, on 8 July 2000, he paid $1,300 to ‘Carpet Call’ as two cash deposits in the amounts of $1,050 and $250, for purchases of carpet, underlay and vinyl flooring for installation in his home.[41] The outstanding balance of $2,500 for these purchases was paid by cheque on 24 July 2000.
[41]Exhibit 111.
Transaction 7 was a cash payment of $597 for motor vehicle insurance made at the Head Office branch of AAMI Ltd on 21 July 2000 at 1.47pm.
Transaction 8 was a cash payment of about $1,000. On 19 September 2000, the applicant purchased a bank cheque in the sum of $990 and paid for it in ten one-hundred dollar notes. The cheques were purchased at the Collin Street branch of the Bank of Melbourne.
The Defence Case
The applicant gave and adduced no evidence.
It was submitted on his behalf that much of the evidence against him was given by witnesses who could be seen to be inherently unreliable and with powerful motives of their own to incriminate him. In relation to count 5, counsel directed serious criticisms against the witnesses Paton, DE, BC and Rosenes. He was particularly critical of the role and approach that he claimed were adopted by De Santo in the matter, arguing that he exerted considerable pressure upon these witnesses in what was described as the ‘fanatical’ pursuit of the applicant. It was not disputed that the applicant met with Paton and BC on 19 May but it was denied that any pseudoephedrine was handed over. The operation in which the applicant was engaged was legitimate and concerned caffeine that was to be the subject of a controlled delivery on 22 May. That operation, it was said, did not proceed due to Mark Moran’s request that the deal take place in the evening rather than during the day. This was unacceptable to the squad.[42]
[42]Presumably the conduct of adequate surveillance would have been much more difficult.
That said, however, none of it appears to us to imply that Parliament’s conception of purity was restricted to substances from which is excluded all contaminants no matter how slight the concentration of them might be.
If Sigma contracted to sell to a pharmacist two kilograms of ‘pure pseudoephedrine hydrochloride’ and pursuant to the contract delivered a bag of 99.7 per cent pure pseudoephedrine hydrochloride, there can surely be no doubt that Sigma would be taken to have satisfied its contractual obligation to deliver two kilograms of pure pseudoephedrine hydrochloride. Equally, in our view, if a drug trafficker sold and delivered the same bag to another dealer or customer, there can be no doubt that the drug trafficker would be guilty of trafficking in two kilograms of pure pseudoephedrine hydrochloride. If on the other hand, in pretended performance of its contract, Sigma delivered two kilograms of substance found upon analysis to contain one kilogram of 99.7 per cent pure pseudoephedrine hydrochloride and one kilogram of icing sugar, Sigma would doubtless be in breach of its contract by reason of its failure to deliver one of the two kilograms for which it contracted; as well, perhaps, by reason of mixing the one which it did deliver with the extraneous substance. Correspondingly, if the drug trafficker sold and delivered such a mixture to another dealer or customer, he could not be convicted of trafficking in more than one kilogram of pure pseudoephedrine hydrochloride or two kilograms of ‘mixture of substance and drug of dependence’.
In short, in our view, the notion of purity for the purposes of the Act accords with what would be regarded as ‘pure’ among those who deal in the drugs in question, and the distinction which the Act draws between ‘pure drug’ on the one hand and ‘mixture of substance and drug of dependence’ on the other hand is consistent with and capable of working satisfactorily on that basis.
Counsel for the applicant argued further that, whatever may be the position in relation to Part 3 of Schedule Eleven, Part 1 of the Schedule put the matter beyond doubt by its use of the adjective ‘pure’ in the expression ‘quantity of pure drug’ as opposed to the simple description ‘quantity’ which is used in the other parts of the Schedule.
We see no substance in that idea. As originally enacted, there was only one part to Schedule Eleven and it employed the simple description ‘Quantity’.[65] The first move towards something like the present structure was made by the Drugs Poisons and Controlled Substances (Amendment) 1983.[66] It added Parts 2 and 3 to the Schedule and also the following definition of ‘Commercial quantity’:
“Commercial quantity” in relation to a drug of dependence the name of which is specified in Column 1 of any Part of Schedule Eleven means the quantity that is specified in Column 2 of that Part of that Schedule opposite to the name of that drug of dependence.[67]
As was explained in the second reading speech,[68] Part I listed those drugs which it was said were identifiable by forensic scientists, Part II listed plants which were capable of being identified by botanists, and Part III listed substances containing any concentration of tetrahydrocannabinol (‘THC’). Hence, it made obvious sense to refer in Part 1 to the ‘Quantity of Pure Drug’, in Part II, simply to ‘Quantity’ and in Part III, to ‘Quantity of Substance’. But, significantly, it was not suggested that the use of the expression ‘Quantity of Pure Drug’ in Part 1 was intended to require any higher standard of purity than had previously been required by the expression ‘Quantity’.
[65]See Drugs, Poisons and Controlled Substances Act 1981 (Act no 9719), s 77(b) and Schedule Eleven.
[66]Act No 10002.
[67]Emphasis added.
[68]Assembly 16 June 1983, Hansard, Session 1982-3, Vol. 37 (Assembly) at 5300.
The next significant change came with the Sentencing and Other Act (Amendment) Act 1997[69] of which s 30 amended the definitions of ‘commercial quantity’ and ‘traffickable quantity’ substantially to their present form and s 45 of amended Parts 1 and 2 and substituted Part 3 of Schedule Eleven, so as in effect to give the overall regime substantially its present structure. In the result, Part 3 of the Schedule ceased to be concerned with plants containing THC, and the substances amphetamine, cocaine, diacetylmorphine (heroin), lysergic acid diethylamide, methlyamphetamine, methylenedioxyamphetamine, 3, 4 methylenedioxy amphetamine, and 3, 4-methylenedioxy-N-methylamphetamine (which were said in the explanatory memorandum to be the six most prevalent illicit drugs) were removed from Part 1 of the Schedule and placed in Part 3. Then as now, Columns 2, 3 and 4 of Part 3 were headed simply ‘Quantity’, and there was no suggestion that that was intended to mean anything different to ‘Quantity of Pure Drug’ in Part 1. To the contrary, it was said in the Explanatory Memorandum that :
Schedule 11 which specifies a pure quantity (that is, the amount of drug contained in the substance seized) in Column 2, and a dilute quantity (that is, the total weight of the substance seized) in Column 2A of drugs …[70]
[69]Act 48 of 1997.
[70]Parliament of Victoria, Bills Introduced, Vol 13 Sen-Sup Session 1997-1998 at p 14.
As it appears to us from that history of the legislation there is no difference at all in meaning between the expressions ‘Quantity of Pure Drug’ and ‘Quantity’ in Schedule Eleven. To the contrary, the fact that the expressions are used interchangeably tends even further to the conclusion that the composite phrase ‘Quantity of Pure Drug’ does not require the exclusion of all contamination no matter how slight the concentration of it might be.
Counsel for the applicant argued that so to construe the term ‘Quantity of Pure Drug’ would be productive of great inconvenience and for that reason was unlikely to have been intended. He contended that it would subject the elements of the offence of trafficking to changes in industry standards and result in evidentiary challenges and disputes which a jury could not easily resolve; in turn raising the prospect that different juries might return opposite verdicts on evidence of a similar type.
We do not think that to be a problem. Prima facie, the words of legislation need to be interpreted in accordance with their current meaning from time to time.[71] If so, in this case, the application of s 77 might vary over time according to changing conceptions of purity.[72] But there is nothing especially remarkable about offences of which the meaning may change over time.[73] On the other hand, it may be that the Act discloses an intention to limit the notion of purity to the standard current at the time of enactment,[74] in which case the question does not arise. For the time being, however, the inquiry is academic. Allowing that it may one day prove necessary to determine whether ‘Quantity of Pure Drug’ extends to ‘new exemplifications which have the characteristics of accepted denotations’,[75] at present there is no suggestion of any change in the meaning of ‘pure’ since the legislation began.
[71]R v Gee (2003) 212 CLR 230, 240 [6] (Gleeson CJ); Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113, 145 (Spigelman CJ).
[72]R v Gee ibid.
[73]R v Ireland [1998] AC 147, 158 (Lord Steyn).
[74]See, for example, Joyce v Grimshaw (2001) 105 FCR 232; Corporate Affairs Commission of New South Wales v Yuill (1991) 172 CLR 319, 322-3, Pearce & Geddes, [4.9].
[75]D & R Henderson (MFG) Pty Ltd v Collector of Customs (NSW) (1974) 48 ALJR 132, 134 (Mason J).
Finally, counsel for the applicant argued that on any analysis the expression ‘Quantity of Pure Drug’ is ambiguous and that the ambiguity should be resolved in favour of the appellant. We do not accept that argument either. As was stated in Beckwith v The Queen,[76] by and large the same rules of statutory construction apply to penal statutes as to other legislation. It is only if after the application of ordinary principles of construction there remains any ambiguity that the doubt is to be resolved in favour of the subject. Here, in our view, the application of ordinary principles of construction leads to the conclusion that there is no ambiguity.
[76](1976) 135 CLR 569, 576.
It follows that we reject Ground 6.
Ground 6B
Under cover of ground 6B (as amended), counsel for the applicant argued in the alternative that even if a quantity of 99.7 per cent pure pseudoephedrine hydrochloride were capable of falling within the statutory conception of ‘quantity of pure drug’, it was a question for the jury whether it did in fact and that the judge had erred by directing the jury that they were to proceed on the basis that the substance the subject of count 5 satisfied the description of pure pseudoephedrine hydrochloride.
Technically, that it is correct. The construction of the expression ‘Quantity of Pure Drug’ and the question of whether the substance was capable of falling within the expression were questions of law,[77] and thus one for the judge,[78] but whether the substance the subject of count 5 fell within the expression as construed by the judge was a question of fact for the jury.[79] The judge should have left that question to them after instructing them as to the correct construction of the expression.
[77]NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509, 511-512 (Kitto J).
[78]The Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60,78; Collector of Customs v Agfa Gavaert Ltd (1996) 186 CLR 389, 396.
[79]NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509, 512-513; R v Francis-Wright (2005) 11 VR 354, 355[2](Callaway JA).
In our view, however, the judge’s failure to adopt that course could not have made a difference to the verdict.[80] For given the uncontested evidence of Ms Gulapalli, any reasonable jury properly instructed on the meaning of the legislation would have been bound to conclude that the substance in question was a quantity of pure pseudoephedrine hydrochloride and therefore a ‘Quantity of Pure Drug’ within the meaning of the statute. To have held otherwise, would have been perverse.
[80]Simic v The Queen (1980) 144 CLR 319, 332; Dhanhoa v The Queen (2003) 217 CLR 1, 18[60].
In the result, we reject ground 6B.
Grounds 7 and 8
It follows from the reasoning set out above that we also regard the complaints made under grounds 7 and 8 as lacking substance.
Conclusions
The application for leave to appeal against conviction is, accordingly, dismissed.
The application for leave to appeal against sentence
This application is based on the grounds that –
1. The sentence imposed on count 5 is manifestly excessive.
2.His Honour erred in failing to give sufficient weight to the principle of parity when sentencing the applicant.
In the course of the hearing before us, counsel drew attention to the circumstances that the sentencing judge had been unable to have regard to the additional penalty that may be incurred by the applicant in the event that a superannuation order was subsequently made under s 83E of the Sentencing (Superannuation Orders) Act 2004.
On 21 December 2006, the sentencing judge made an order against the applicant in the sum of $68,000 representing his employer’s contribution to his superannuation entitlement for the period 19 May 2000 to 18 March 2003.
In consequence, the applicant has sought leave to add the ground –
3.The sentencing discretion is re-opened by reason of the superannuation order made against the applicant.
Ground 1
It was asserted in support of the claim that the sentence was manifestly excessive, that the length of the term of imprisonment imposed indicates that inadequate consideration must have been given to –
- the isolated nature of the crime proved;
- the modest planning and sophistication required;
- the modest amount;
- the mixed motivation proved;
-the personal circumstances of the appellant before, during and after the offence; and
- the comparatively contained nature of the proved breach of trust.
However it is to be noted that each of them was specifically addressed by his Honour in his sentencing remarks and taken into account, together with a number of other matters that militated in favour of mitigation of penalty. They indicated, inter alia, his personal background, history of commitment to the successful raising of his children following their mother’s death from cancer, his highly successful career in the police force and reputation for dedication, intelligence and integrity, the minor financial benefit he could have anticipated from the activity and mixed motivation for engaging in it, his state of health and the increased difficulties that he would be likely to experience whilst in custody, both by reason of his state of health and his status as a protected person. He formed the view that specific deterrence did not assume importance as a sentencing consideration in this case and expressed confidence in the applicant’s prospects for rehabilitation. In short, it is apparent that the judge was careful to take into account all relevant principles and considerations that could operate in the applicant’s favour.
However as his Honour also pointed out, the applicant –
… exploited a structure put in place to facilitate the capture of drug traffickers, and effectively orchestrated the delivery of two kilograms of pure pseudoephedrine to one of the principal drug manufacturers and dealers in Victoria.
He continued –
The single most aggravating feature of your offending is that you committed the offence in your capacity as a member of Victoria Police, and while working in the very squad whose specific function it was to prevent and detect the trafficking of illicit drugs. You committed the very crime which you were entrusted to detect and eliminate. In doing so, you betrayed your oath as a member of the police force, and you breached the trust which the community placed in you. The trust placed in you, as a Detective Senior Sergeant, was higher than that placed in other members of lower rank, and therefore the breach of that trust is proportionately more serious. In your position as the effective head of unit 2 you were able to use your knowledge about drug manufactures, the relationship which the police force had with the pharmaceutical companies and your ability to operate with less supervision than your subordinates to pervert your own role as a police officer for personal gain.
Although Inspector Reid may have been the titular head of unit 2, I have described you as its effective head given the following description of your position in your August 2001 statement:
“Since the commencement of 1999 I have been in charge of operations in the Cladestine Laboratory Unit. I approve all operational directions and investigations undertaken. I am aware of all investigations and controlled chemical deliveries conducted by the Cladestine Laboratory Unit during this time”
Your corrupt conduct has inevitably had the effect of undermining public confidence in the Victorian Police Force. It was a betrayal of the thousands of other serving police officers who daily work with dedication and integrity under the same kind of pressures and constraints as you did. Your conduct potentially undermined the enforcement of the law and the administration of justice in this State.
His Honour placed appropriate emphasis upon the importance of general deterrence in cases of this kind. The sentence at which he arrived was, in our view, available in the proper exercise of the discretion reposed in him.
Ground 2
Although the criminality of Paton was, as counsel for the applicant contended, of a ‘categorically different scale’ to that of the applicant, there were significant differences in their situations. His Honour recognised the distinctions in his sentencing remarks, noting that –
… the two counts to which Paton pleaded guilty involved 2.5 times the commercial quantity in respect of the pseudoephedrine transactions (in fact I think it was 2.75 times) and 13 (I think it was 12.75) times the commercial quantity in respect of the Sudafed tablets transactions. Both counts were over a lengthy time frame. [Defence counsel] further submitted that Paton had been motivated purely by greed. For those serious offences Paton received a sentence of six years’ imprisonment on each count to be served concurrently with a minimum non-parole period of three years.
Whilst you and Paton were co-offenders in the trafficking offence committed on 19 May 2000, your circumstances are considerably different. It is true that you have been found guilty of only one offence, whereas Paton was guilty of numerous offences. On the other hand, you held a more senior rank than Paton and in respect of your offence the evidence on which the jury have convicted you is that you directed Paton to collect the two kilograms of pseudoephedrine. Moreover, Paton pleaded guilty and agreed to give evidence against other police officers, including yourself, which no doubt earned him a significant discount.
He then stated that notwithstanding the difficulties in comparing their situations that he had taken the sentence imposed on Paton into account.
We are far from persuaded that the applicant could have any justifiable sense of grievance arising as a result of the different sentences imposed upon them for this offence.
Ground 3
We consider that leave should be granted to add this ground which has been supported by written submissions.[81] However we have also concluded that, given the relatively small amount of the order and the personal circumstances of the applicant, no mitigation of the sentence imposed upon him was required. In other words, as we are satisfied that no different sentence should have been imposed, this ground fails.
[81]See R v McLeod (2007) 16 VR 682.
The application for leave to appeal against sentence also fails.
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