R v Strawhorn (No 3)
[2006] VSC 477
•11 December 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1427 of 2003
| THE QUEEN |
| v |
| WAYNE GEOFFREY STRAWHORN |
---
JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 22-23, 28-30 JUNE; 3-6, 10-14, 17-20, 24-28, 31 JULY; 1-4, 7-9, 14-18, 22-25, 28-31 AUGUST; 4-6, 8, 11-13, 18-22, 25-29 SEPTEMBER; 2-6, 9-14, 16-18 OCTOBER 2006 | |
DATE OF RULING: | 11 DECEMBER 2006 | |
CASE MAY BE CITED AS: | R v STRAWHORN (No. 3) | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 477 | |
---
Criminal Law and Procedure – Reasons for rulings – Admissibility of tape recorded conversation – Admissibility of video tape – Evidence of betterment and unsourced cash transactions part of circumstantial case not linked to any particular count – Admissibility of information report when not put to witness – Admissibility of report by the accused – No case submission – Meaning of "quantity of pure drug" – Drugs, Poisons and Controlled Substances Act 1981, ss.70, 71AA, Part 1 of Schedule 11.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elston SC with Mr M. Tinney | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Accused | Mr P. Morrissey with Mr J. O'Sullivan | Galbally & O'Bryan |
HIS HONOUR:
During the trial of the accused, Wayne Geoffrey Strawhorn, on five counts of trafficking in a drug of dependence, including one count involving a commercial quantity, and one count of making a threat to kill, I gave certain rulings in respect of which, in order not to delay the trial, I said I would provide my reasons at a later stage. I now publish my reasons in respect of each of the rulings.
The first of these rulings occurred on 27 July 2006, Day 22 of the trial. Counsel for the accused applied to have excluded from the evidence at the trial certain parts of two recorded telephone conversations involving the accused. The Crown proposed to tender the recordings as exhibits. The first conversation, call number 1127, was between Mr Strawhorn and Detective Sergeant Martin Allison of the Drug Squad on 24 October 2002. The second, call number 63, was between Mr Strawhorn and an informer whom I will hereafter call "BC" on 4 November 2002. The probable consequence of a ruling in favour of the application was that the whole recording would be omitted because it no longer had any relevance.
A preliminary issue was that both of these conversations had been opened to the jury by senior counsel for the prosecution in his opening, as a result of an agreement reached with counsel for the accused. Mr Morrissey, who appeared with Mr O'Sullivan on behalf of Mr Strawhorn, very fairly conceded that the application was late and was contrary to the agreement between counsel and that as a result the Crown would suffer the prejudice of having opened something to the jury which was then taken away. He explained the late application on the basis that he had only recently clarified in his own mind the vague sense of unease he had felt concerning these two conversations.
Not surprisingly, Mr Elston SC, who appeared with Mr Tinney on behalf of the Crown, criticised the belated nature of the application. He did not, however, seek to argue that the earlier agreement prevented defence counsel from making the application. He also very fairly conceded that although the Crown was concerned about the potentially serious prejudice, it was a marginal issue in the circumstances of this application.
It therefore seemed to me that, although the prejudice to the Crown was a relevant consideration in the exercise of my discretion, the real question was whether or not there was any substance in the application itself. I accept that there will be cases where, in fairness to the accused, late applications have to be made and heard notwithstanding that such issues should have been sorted prior to the trial commencing.
The relevant part of call number 1127 was that Mr Strawhorn told Mr Allison that he needed to get a message to a bloke who lived in Euroa (an informer whom I will hereafter call "DE") that he had been "burnt" and that he should not come back to Melbourne because the Morans were after him. Mr Strawhorn said that he would pass the message on through the bloke that was acting as his intermediary (BC).
Mr Morrissey reminded me that the Crown had indicated that they proposed to rely on this call as evidence of consciousness of guilt of the count 5 offence of trafficking in a commercial quantity of a drug of dependence. He also informed me that the Crown's position was that they had evidence that the accused was involved in other illegal dealings with DE involving the distribution of Sudafed tablets in late 1999.
In these circumstances, Mr Morrissey submitted that this evidence could never be used as consciousness of guilt of the count 5 offence because the proposed intimidation of DE may have been related to the other possible criminality and not to this offence. Mr Morrissey argued that there was nothing in the relevant part of the telephone conversation to say that it related to the alleged pseudoephedrine offence on 19 May 2000 and not to the alleged Sudafed tablets transactions in 1999. Yet this argument could not be advanced by the defence because it would have to introduce evidence of the other possible uncharged criminality in order to establish the basis for its argument. Obviously such a step would be highly prejudicial to the accused. Mr Morrissey submitted that if the defence was forced to deal with the Crown's argument that this part of the telephone conversation constituted consciousness of guilt, then this would result in an unfair trial.
Mr Elston agreed that the relevant part of the telephone conversation potentially could provide evidence of consciousness of guilt. However, he submitted that this call was related to other evidence relevant to count 5. Mr Elston pointed out that this call took place the day before Mr Strawhorn met with the intermediary BC and allegedly told him that the pseudoephedrine transaction "did not happen". He therefore argued that it was probative of count 5. The contact between Mr Strawhorn and Mr Allison was directly referable to the meeting the next day between Mr Strawhorn and BC.
I did not accept Mr Elston's submission that the two conversations were linked in the way suggested by him. As Mr Morrissey submitted, what Mr Strawhorn said to BC was not to tell DE that he had been burnt but to tell him that the pseudoephedrine transaction never happened.
It seemed to me, therefore, that it became a question of whether this evidence could be used as demonstrating a consciousness of guilt. Mr Elston did not dispute Mr Morrissey's assertions about the Crown's position in respect of other alleged but uncharged criminality by Mr Strawhorn. He merely said that he was not making any concessions about other conduct. I therefore proceeded on the basis that what Mr Morrissey had said was correct.
I concluded that Mr Morrissey's submissions were correct. It seemed to me that the problem for the accused in allowing the Crown to rely on the relevant part of the telephone conversation as demonstrating consciousness of guilt of the count 5 offence was similar to that considered by the Court of Appeal in R v Hartwick[1]. In that case the evidence said to constitute consciousness of guilt by the applicant of one charge of armed robbery consisted of flight from an attempt to arrest him, written and oral threats to a witness, and his conduct at the time of his eventual arrest. However, the Crown had relied on the same evidence to demonstrate a consciousness of guilt when the applicant was tried for another armed robbery. One of the grounds of the appeal was that the same evidence could not be used again for the same purpose but in relation to a different armed robbery. The main judgment was delivered by Callaway JA, with whom Charles JA and Vincent AJA, as his Honour then was, agreed. Callaway JA said:
"For such material to be used to demonstrate a consciousness of guilt in a case such as the present, the jury must be satisfied that the conduct of the accused cannot be explained by any other reasonable hypothesis. Here there was another reasonable hypothesis, namely that the conduct evinced a consciousness of guilt of the other armed robbery. The prosecuting authorities themselves had used it for that very purpose at the earlier trial, but the jury at this trial could not be informed of the other armed robbery nor could the applicant be expected to put it in evidence to rebut the inference of consciousness of guilt of the offence with which he was charged. The direction, which his Honour correctly gave, that the jury had to be satisfied that the cause of the applicant's fleeing and hiding in the cupboard was his desire to escape the consequences of this offence and not the consequences of some other wrongdoing has a hollow ring. Both the Court and the Crown knew, as the jury could not, that there was other wrongdoing and that it might reasonably explain the applicant's conduct."[2]
[1]Unreported, 20 December 1995.
[2]At p.2.
In this case, another reasonable hypothesis for Mr Strawhorn's statements to Mr Allison was that the conduct evinced a consciousness of guilt of the alleged and uncharged 1999 Sudafed tablets criminality. Yet Mr Strawhorn could not be expected to lead evidence of that conduct to rebut the inference of consciousness of guilt of the count 5 offence. I therefore ruled that this part of the telephone conversation should be excluded, and as the rest of it was not relevant, the Crown did not pursue the tender of the recording of that conversation.
In the second call, number 63, between Mr Strawhorn and the informer BC on 4 November 2002, Mr Strawhorn referred to the death of two men in an aeroplane crash on the previous day. One of the deceased was a criminal Robert Sluzarczk and, in effect, Mr Strawhorn expressed his regret that the other man was not Inspector Peter De Santo, who was leading the investigation into the alleged criminal conduct of Mr Strawhorn. Mr Morrissey conceded that this part of the conversation was capable of demonstrating an animus by Mr Strawhorn towards Mr De Santo, which was relevant to the threat to kill count. However, he argued that the Crown did not need this evidence to establish animus; the threat had been recorded by the informer BC and there was no question that the threat was made because the words themselves were capable of sustaining the charge. The real issue was did Mr Strawhorn have the relevant guilty state of mind at the time he spoke the words. Mr Morrissey submitted that the animus expressed in this telephone conversation was not relevant to that issue, alternatively the prejudicial effect of the evidence greatly outweighed its probative value.
I did not agree. I accepted Mr Elston's submission that this animus towards Mr De Santo expressed in the telephone conversation on 4 November 2002 was relevant to the threat to kill count because it put that count into context and was capable of demonstrating that the threat made on 15 March 2003 was not idle but the venting of anger which had built up over a period of time. He submitted that this conversation was of assistance in determining Mr Strawhorn's state of mind when he made the threat. In the circumstances, I did not consider that any prejudicial effect of this part of the conversation outweighed its probative value. The recording of the telephone conversation being both relevant and admissible I saw no reason to exclude it from the evidence.
The second occasion when a ruling was made without reasons being given at the time happened on 2 July 2006, Day 26 of the trial, during the cross-examination of the informer BC. During his debriefing by Commander Moloney, BC had initially denied that he had been involved in any pseudoephedrine transactions as the intermediary between Mr Strawhorn and the informer DE. He eventually changed his story and, having said that he would take the inducement offered by the investigators, agreed that on 19 May 2000 he received pseudoephedrine from Mr Strawhorn, for which he paid him $12,000, and that he passed the pseudoephedrine on to DE. There was a transcript of the debriefing, including transcript of what were described as "gap tapes" when the tape recorder in the interview room was turned off but, unbeknown to the person being debriefed, a video tape continued to record what was happening in the room.
Mr Morrissey sought an indication from me concerning the use which could be made of the gap tape. He said that he wished to play part of the gap tape to the jury in order to show BC's demeanour at the time he was taking the inducement, but opposed the Crown being able to play other parts of the gap tape during the re-examination of BC. It was submitted that this would be prejudicial to the accused in giving too great an emphasis to what BC said on the video about the pseudoephedrine transaction when its probative weight was minimal. Alternatively, Mr Morrissey said, he would not seek to play any part of the gap tape and submitted that in that case the Crown should not be allowed to play any part of it to the jury. My view on these issues would govern how he proceeded in the cross-examination.
Mr Elston submitted that the Crown should be entitled to play the whole of the gap tape in re-examination in order to rebut the suggestion that BC was "crunched" by Mr Moloney into changing his story. He submitted that the gap tape relevantly showed not just what occurred before BC said that he would take the inducement but also how he acted thereafter.
I ruled that if Mr Morrissey sought to play part of the gap tape to the jury then the whole of it should be played. In my view the defence should not be permitted to pick and choose the parts of the gap tape which suited its purposes and then seek to prevent the Crown from playing other parts.
I further ruled that if the defence did not seek to play parts of the gap tape to the jury then, subject to how the cross-examination progressed, I was inclined not to allow the Crown to play it in re-examination. It seemed to me that the contrary course would run the risk of the gap tape assuming an importance beyond what was warranted, particularly when none of the other tapes or transcripts of debriefings were going into evidence. The extra probative value of the video was minimal when considered in the context of BC's evidence.
However, the course that was then adopted by Mr Morrissey was that he read to BC, and thus to the jury, lengthy passages from the transcript of the gap tape and asked whether BC agreed that this was what was said by Mr Moloney and by him. Interspersed through that reading were questions about Mr Moloney's suggested lack of knowledge about the detail of the alleged pseudoephedrine transaction. This led to Mr Elston applying on the following morning for a ruling that the gap tape could now be shown to the jury in re-examination. He submitted that the jury should have the evidence from the video of what occurred before and after BC agreed to take the inducement and not just the words which had been read to them.
When I put to Mr Morrissey that it seemed to me that there was sense in Mr Elston's submission given what had occurred, he did not seek to say anything further in opposition to the application. He then announced that he would play the gap tape. After some further discussion I ruled that the whole of the relevant gap tape should be shown. This was duly done. It was subsequently tendered as an exhibit by consent. It seems to me, therefore, that nothing further needs to be said about this issue.
The next occasion was on 17 and 18 August 2006, Days 35 and 36 of the trial. Counsel for the accused objected to the leading of evidence from an accountant, Mr Gerald Curtin, concerning the enrichment of the accused and what Mr Curtin said were 11 cash transactions by Mr Strawhorn where there was no identifiable source of the funds. Again, this was an issue which had been opened to the jury in general terms by the Crown. Financial gain was said to be part of the accused's motive.
By the time Mr Curtin was to be called as a witness there was evidence from Mr Paton that in December 1999 he had paid Mr Strawhorn $15,000 in cash for the 1.5 kilograms of pseudoephedrine, and received $5,000 back; from informer 4/199 that he had paid Mr Strawhorn $10,000 in cash for the one kilogram of pseudoephedrine in late January 2000 and that on other occasions in January 2000 he had given Mr Strawhorn $20,000 and $50,000 in cash; and from informer BC that in May 2000 he had paid Mr Strawhorn $12,000 in cash for the two kilograms of pseudoephedrine. This totalled $102,000 or $99,500 after deduction for the $2,500 which Mr Paton said he later received from the accused for the late January 2000 transaction.
Mr Morrissey also argued that the Crown was aware of alleged uncharged acts concerning Mr Strawhorn's involvement in the illegal sale of Sudafed tablets through informers BC and DE in 1999 and through Mr Paton between 9 May and 6 December 2000. However, Mr Strawhorn has not admitted any involvement in these offences and there was no evidence that he received any cash from any of these transactions.
The principal defence objection to Mr Curtin's evidence was that there was no evidence linking any cash payment to Mr Strawhorn with any particular transaction. Mr Morrissey submitted that each of the five separate counts of trafficking had to be individually considered. The accused was not facing a "between dates" or Giretti[3] count. Nor was he facing a conspiracy charge spanning many months. Different verdicts might be open on each of the five counts. But all of the 11 unsourced cash transactions identified by Mr Curtin occurred in the period between 25 February and 19 September 2000, that is after the alleged offence constituting count 4 on 27 January 2000, and eight of them occurred after the alleged offence constituting count 5 on 19 May 2000.
[3]Giretti v The Queen [1984] 26 A Crim R 112.
Thus, Mr Morrissey submitted, each of the allegations of payment in respect of counts 2 to 5 could be supported by evidence that the accused had entered into transactions after those dates using cash, the source of which was not able to be identified. But, he argued, if the accused already had cash, whether ill-gotten or not, before an alleged handover of cash, a display of cash afterwards could not support an inference that this particular handover occurred. Such a display might be equally consistent with possession of cash from one or several previous transactions, and it would be mere conjecture to choose between them. Mr Morrissey submitted that conjecture must be distinguished from inference.[4] Further, in a criminal case, an inference must be the only reasonable inference open.[5] Therefore, he submitted that there was no evidence capable of proving to the criminal standard that the cash expended by the accused derived from any particular transaction. The evidence thus had little or no probative value. At best, all that the Crown could say about this prejudicial evidence was that it was "consistent" with the accused's guilt.
[4]Caswell v Powell Duffryn Associated CollieriesLtd [1940] AC 152 at 169 per Lord Wright.
[5]Knight v The Queen (1992) 175 CLR 495 at 502-503 per Mason CJ, Dawson and Toohey JJ
Mr Morrissey distinguished the present situation from that where an accused was suddenly holding an inexplicable amount of cash immediately following a robbery where before the robbery the accused was bereft of funds. That could provide evidence of guilt of the robbery.[6]
[6]See for example R v Rich (No. 2) [2002] USCA 17 at [79-90].
Mr Elston submitted that the defence objection that the evidence was admissible only if relevant to a given count was misconceived. He submitted that whilst each of the five counts had to be separately considered they did not have to be considered in a vacuum. There was properly available to the jury a general body of circumstantial evidence which they were entitled to take into account. Mr Elston argued that the Crown was entitled to allege that the possession of unexplained cash over this period of time was consistent with the commission of the alleged offences. Mr Curtin's evidence demonstrated that despite intensive investigation and analysis the source of the cash for the 11 transactions was indeed unexplained.
Mr Elston further submitted that the jury were entitled to entertain consideration of a piece of circumstantial evidence, such as the unexplained cash transactions, in the context of the totality of the evidence. Whilst the jury could not infer guilt from this piece of evidence alone, it could be a probative piece of circumstantial evidence which entitled them ultimately to draw an inference of guilt from a combination of facts, provided they were satisfied beyond reasonable doubt as to guilt.[7]
[7]Chamberlain v The Queen [No. 2] (1984) 153 CLR 521; Shepherd v The Queen (1990) 170 CLR 573.
A secondary argument advanced by the defence was that even if the principal submission was not successful three of the 11 transactions should be excluded in any event. The investigation by Mr Curtin revealed that these three transactions involved payments by credit cards in the name of a Ms Sharon Stone for cupboards and appliances for Mr Strawhorn's kitchen. His investigation also revealed that Ms Stone appeared to be impecunious at that time and yet despite her lack of any apparent source of funding was able to pay off the credit card debt.
The first objection taken by the defence to these three transactions being admitted into evidence was that there was no evidence that Ms Stone received any reimbursement of these payments from Mr Strawhorn in cash or at all. Secondly, it was submitted that given that Mr Curtin had established that Ms Stone was the source of these payments for assets acquired by Mr Strawhorn, it was not correct to assert that they were paid for in cash from some unexplained source. The source was known, it was Ms Stone. What was unexplained was the reason she paid, but, if relevant, that must be proved by the Crown not the defence. It was submitted, therefore, that in the absence of the Crown calling Ms Stone as a witness, these three transactions were inadmissible.
Mr Elston submitted that an inference could be drawn that Mr Strawhorn had repaid Ms Stone from the fact that he was the beneficiary of the goods bought on her credit cards and from the fact that the credit card debts were discharged when Ms Stone herself did not appear to have the means to do that.
Mr Morrissey disputed that last assertion. He submitted that the evidence did not allow any inference to be drawn as to the financial status of Ms Stone.
After considering the arguments I ruled that Mr Curtin's evidence was admissible other than the three transactions relating to Ms Stone. It seemed to me that it was permissible for the Crown to lead this evidence of the cash transactions in respect of which no source had been found by Mr Curtin as part of the circumstantial evidence. The cash transactions occurring after count 4 and before count 5 could be used by the jury when considering counts 2, 3 and 4 and the cash transactions occurring after count 5 could be used in respect of counts 2 to 5 because they were consistent with the commission of the alleged offences.
In R v Sorby[8] the applicant was convicted on five counts of conspiracy to sell heroin. The periods of the alleged conspiracies all began on 8 April 1978 and continued until 31 October 1978 in the shortest case and until 31 May 1980 in the longest case. In an appeal concerning grounds not relevant to this issue, the Full Court (Kaye, O'Bryan and Tadgell JJ) made, without any adverse comment, the following statement:
"It was part of the Crown case that the applicant's pecuniary betterment between April 1978 and December 1980 resulted from his sales of heroin through the five conspiracies."[9]
[8][1986] VR 753
[9][1986] VR 753 at 764.
In R v Komljenovic[10] the applicant was found guilty on two counts of trafficking heroin, one count being between 1 January 1983 and 17 December 1983 and the other count being between 17 December 1983 and 7 December 1990. Again the appeal concerned grounds not relevant to this issue. However, the Full Court (Southwell, Nathan and McDonald JJ) stated, without any adverse comment, as follows:
"We can turn now to the acquisition of assets by the applicant, which are said by the Crown to be consistent with the availability of funds from large-scale heroin trafficking. The applicant in his unsworn evidence indicated no sources of income other than brothel keeping. It was not suggested that he was able to accumulate assets from some other commercial activity or windfalls from some other source. It was in this context the jury was entitled to assess the accumulation of wealth or betterment of the applicant during the relevant period."[11]
[10](1994) 76 A Crim R 521
[11](1994) 76 A Crim R 521 at 549.
In R v Clune[12] the applicant was convicted of a number of offences including three counts of armed robbery in which about $335,000 was stolen. In an appeal concerning similar fact evidence and identification evidence the Full Court (Phillips CJ, Hampel and Coldrey JJ) observed, without any adverse comment, as follows:
"There was a body of evidence called to establish that the applicant Clune was living a lifestyle not in keeping with the income he was deriving through his brother's company …"[13]
[12][1995] 1 VR 489
[13][1995] 1 VR 489 at 507.
Although I agree Mr Morrissey's submission that there can be pitfalls in seeking to rely on passages in judgments where the particular point has not been argued, it does seem to me that these three Full Court decisions lend some support to my conclusion that Mr Curtin's evidence about the cash transactions was admissible, apart from the three Stone transactions. That evidence was legitimately part of the circumstantial evidence and it was no reason for it to be excluded simply because the Crown could not link any one of the cash transactions with a particular offence.
However, I did not consider that the Crown should be permitted to lead evidence about the three Stone transactions, without Ms Stone being called as a witness to prove the necessary link between Mr Strawhorn and her payment of the debts she incurred in purchasing these items for Mr Strawhorn's kitchen. Without that link it seemed to be simply speculation that Mr Strawhorn was in any way involved in the repayment. And if he were not involved, then these three transactions were not examples of him engaging in unsourced cash transactions.
The next ruling occurred on 24 August 2006, Day 39 of the trial. The dispute concerned the extent to which an information report which the defence wished to put to Mr De Santo should be edited. Parts of the information report had previously been deleted on public interest immunity grounds. There was no issue about those deletions. The dispute was whether two further deletions should be made to the information report as sought by the Crown. In the course of the argument the parties reached an accommodation on one of the issues, so that only one remained in dispute.
The information report in question was one Mr De Santo had made on 2 December 2001 relating to a meeting he had had on 30 November 2001 with Mr Stephen Paton, a former policeman who had worked with Mr Strawhorn in unit 2 of the Drug Squad. The subject matter of the conversation was recorded in dot points. The second dot point contained an entry relevant to count 5. The meaning of that entry was disputed. Mr Morrissey submitted that the first dot point, which the Crown sought to have deleted, provided a significant context to the second dot point and helped the defence's argument about the meaning of the second dot point.
The difficulties pointed out by Mr Elston were that the first dot point referred to the possibility of uncharged acts involving the accused and the informers BC and DE, and that the allegation by Mr Paton recorded in the first dot point, which the defence said was false, had never been put to Mr Paton. Mr Elston submitted that strenuous efforts had been made to avoid the problem of uncharged acts surfacing before the jury and there was no need to cause difficulties in that respect by allowing the first dot point to remain. Questions could be asked of Mr De Santo to make it clear to what the second dot point referred. Secondly, he submitted that the first dot point not having been put to Mr Paton, to allow it to remain in the information report would be an unfair attack on the credit of the witness. Mr Morrissey conceded that nothing had been put to Mr Paton which would justify dot point 1.
I concluded that there was a real danger of distracting the jury with suggestions of uncharged acts. Not editing the first dot point out was, therefore, a course fraught with difficulty in my opinion. I accepted the argument that the necessary context could be established in the cross-examination. Further, there was unfairness to Mr Paton, and thus the Crown case, in allowing the first dot point to remain when it had not been put to him when he gave evidence. Accordingly, I ruled that the first dot point should come out.
Another ruling was made on this day, 24 August 2006. The defence sought to tender a report dated 11 December 2001 from Mr Strawhorn which referred amongst other things to a telephone conversation between Mr Strawhorn and Mr De Santo concerning an incident involving Mr De Santo and Mr Paton on 29 November 2001 and to the meeting he and Detective Sergeant Allison had had with an informer 4/199 at Lorne on 6 December 2001 which had been recorded. The Crown objected to the tender of the report. Mr Elston submitted that it was an inadmissible self-serving statement.
I ruled that the document was relevant and admissible because it arguably established that at a relevant time Mr Strawhorn provided certain information to his superior, such as that the Lorne conversation had been recorded and that informer 4/199 had agreed to tape any conversation with Mr Paton. I accepted that there were certain parts of the document which might have to be deleted. During the adjournment to discuss possible deletions it was ascertained that in fact this document, Mr Strawhorn's report dated 11 December 2001, had been referred to by the Crown in its opening.
The parties reached agreement on some deletions. However, four passages remained in dispute – the second sentence in paragraph 2 of the report; the last sentence in paragraph 6; paragraph 11 and paragraph 12. I ruled that all the passages objected to should remain. In my opinion, it was arguable that the last three passages showed that Mr Strawhorn was identifying a potential problem with Mr Paton and recommending a course of action to be followed by the Drug Squad (or Task Force Kayak in particular) in conjunction with ESD. It was important, in the light of the Crown's attack on the accused going to Lorne to meet informer 4/199, for the defence to be able to argue that Mr Strawhorn's recommendations did not exclude ESD from the further investigations. On the contrary, he was attempting to involve ESD even though informer 4/199 had indicated he would only co-operate with Task Force Kayak investigators.
I also considered that the second sentence in paragraph 2 should remain because it was a simple statement that informer 4/199 had "confessed" or acknowledged receiving chemicals from Mr Paton. In the Lorne meeting, he had also acknowledged not telling Mr Strawhorn about that conduct in their earlier discussions and this was all recorded on the tape of the meeting, Exhibit 30. There was no unfairness in the use of the term "confessed".
The final ruling concerned a no case submission with respect to count 5, which was made on 11 September 2006, Day 49 of the hearing. Count 5 on the presentment alleged that Mr Strawhorn engaged in trafficking in a drug of dependence, pseudoephedrine, in a quantity not less than the commercial quantity applicable to that substance contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981 ("the Act").
"Pseudoephedrine" is a drug that is specified in column 1 of Part 1 of Schedule 11 of the Act. It therefore fell within sub-paragraph (a) of the definition of a "drug of dependence" contained in s.4(1) of the Act. Sub-paragraph (d) of the definition states that a drug of dependence includes "any form" of that drug "whether natural or synthetic, and the salts, derivatives and isomers of that drug and any salt of those derivatives and isomers." It was not disputed that pseudoephedrine hydrochloride was a salt of pseudoephedrine and thus could be said to be a form of the drug pseudoephedrine.
A "commercial quantity" of a drug such as this is defined in s.70 of the Act as being "the quantity" that is specified in column 2 of Part 1 of Schedule 11 opposite to the name of that drug of dependence. Column 2 is headed "Quantity of pure drug", with a sub-heading "Kilograms". The quantity specified for pseudoephedrine was "2.0". That is, two kilograms and upwards of pseudoephedrine constitutes a commercial quantity. The expression "quantity of pure drug" was not defined in the Act.
The no case submission on behalf of the accused was that the evidence, taken at the highest, did not establish that there was a quantity of pseudoephedrine hydrochloride of not less than 2.0 kilograms involved in this particular instance of trafficking. Mr O'Sullivan, junior counsel for the accused, submitted that the evidence of Ms Usha Gulapalli, the chemist from Sigma Pharmaceuticals who had tested the relevant batch of pseudoephedrine hydrochloride, established that contained within the two kilograms of substance collected by Mr Paton on 19 May 2000 there would have been at least 0.05% or one gram of impurities (0.02% or 400 milligrams of unspecified impurities, 0.03% or 600 milligrams of a solvent isopropanol and less than 0.002% of heavy metals) so that the amount of pseudoephedrine hydrochloride had to be no more than 1.999 kilograms and not 2.0 kilograms.
Although Ms Gulapalli did test the relevant batch of pseudoephedrine hydrochloride (R 14189), the evidence as to the impurities came not from her testing but from the certificate of analysis provided by the supplier in the USA. No objection was taken to Ms Gulapalli being cross-examined about the contents of that certificate or the certificate relating to another batch of pseudoephedrine hydrochloride relevant to other counts (R 12124) which showed that this other batch contained 0.05% of the solvent isopropanol. What Ms Gulapalli established by her testing was that the substance in question (batch number R 14189) was pseudoephedrine hydrochloride and that it was 99.7% pure. Given that there was a testing error of 1% plus or minus, Ms Gulapalli stated that this was pseudoephedrine hydrochloride "in its highest pure form." She also said that she did not think that it could be any purer.
Mr O'Sullivan submitted that the word "pure" in the expression "Quantity of pure drug" in Schedule 11 of the Act was a word that should be interpreted in accordance with its ordinary usage[14], and that would mean that I would have to conclude that there was no evidence that there was two kilograms of pure pseudoephedrine hydrochloride involved in the transaction. Mr O'Sullivan referred me to the Shorter Oxford English Dictionary definition of "pure", in a physical sense, as:
[14]See R v Francis-Wright (2005) 11 VR 354 at [32]-[34] per Williams AJA, with whom Callaway JA and Batt JA agreed.
"Unmixed; free from admixture or adulteration."
and
"Not mixed with, or not having in or upon it, anything that defiles, corrupts, or impairs; unsullied, untainted, clean."[15]
That was taken from the third edition. The definition in the fourth edition, which was published before these alleged events took place, was as follows:
"Not mixed with anything else, not adulterated."[16]
The Macquarie Dictionary[17] defined "pure" as:
"Free from extraneous matter or from mixture with anything of a different inferior or contaminating kind."
[15]3rd ed, (1944, Reprinted in 1973), vol. II, p.1710.
[16]4th ed., (1993), vol, II, p.2418.
[17]3rd ed., (1997), p.1731.
Mr O'Sullivan further submitted that because this was not a case where "pure" had some scientific meaning or term of art the meaning of "pure" was not a matter for expert evidence and therefore Ms Gulapalli's views about the purity of the pseudoephedrine hydrochloride were not determinative.
I did not agree with the no case submission. In my opinion, as Mr Elston submitted, this was a case where the expression "quantity of pure drug" had a special or technical meaning and that Ms Gulapalli's expert evidence was admissible on that issue. Mr Elston pointed out, correctly in my opinion, that neither the judge nor the members of the jury would be able to determine for themselves whether the substance in question was pseudoephedrine hydrochloride, let alone whether it was pure pseudoephedrine hydrochloride. In those circumstances, Ms Gulapalli's evidence that the substance was "chemically pure" and could not be any purer was admissible in order for the Court to determine the question. It was not simply a matter of considering the ordinary meaning of the word "pure".
Alternatively, Mr Elston submitted that if the correct approach was that the word "pure" was used in its ordinary meaning, as was decided by the Court of Appeal about the word "plant" in R v Francis-Wright[18], then the judge would still be:
"able to seek assistance from dictionaries and standard reference works in interpreting the ordinary meaning of the word."[19]
Mr Elston submitted that Ms Gulapalli's evidence established that the standard reference work in this context was the British Pharmacopeia. She had given evidence that the British Pharmacopeia provided that if a substance tested between 99% and 101% it was a pure substance. Thus, Ms Gulapalli's statement that the substance which tested 99.7% pure was pure pseudoephedrine hydrochloride "in its highest pure form" was not just her personal view. It was based on the standards laid down in the principal reference work on the subject. I also agreed with this submission.
[18](2005) 11 VR 354
[19](2005) 11 VR 354 at [34].
Although not strictly relevant because the evidence and the argument before me were apparently slightly different, I note that I have reached the same conclusion on the no case submission as Coldrey J did in the earlier trial of Mr Strawhorn. His Honour said:
"As I pointed out there was no definition of purity in the Act. In those circumstances I am driven to the view that what constitutes purity must be dependent upon the expert pharmacological evidence. In this case that evidence is unequivocal. It is that the drug dispensed by Sigma was pseudoephedrine or pseudoephedrine hydrochloride in its purest form. Consequently the no case submission must fail."[20]
[20]Unreported, 6 December 2005.
---
0
5
0