R v Tartaglia

Case [2011] SASCFC 88

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TARTAGLIA

[2011] SASCFC 88

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Kourakis and The Honourable Justice Peek)

15 August 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - DIRECTIONS TO JURY

CRIMINAL LAW - EVIDENCE - CORROBORATION - SUFFICIENCY OF EVIDENCE TO CONVICT

Appeal against conviction for the manufacture of a large commercial quantity of methylamphetamine discovered at premises in St Agnes.

Evidence of appellant's presence at the premises at St Agnes consisted of a DNA match to a drinking straw in a McDonald's cup and the sighting of his car on the street outside the house - appellant was found at premises at Richmond where items connected with the manufacture of methylamphetamine were later found - amounts of ephedrine (a rarely used precursor in the manufacture of methylamphetamine) were found at both premises.

Whether the evidence of the appellant's presence at the Richmond premises was wrongly admitted - whether the evidence was the subject of an appropriate direction - whether the evidence adduced was insufficient to prove the charge beyond reasonable doubt.

Held: Appeal allowed, conviction set aside, verdict of not guilty entered. (Sulan, Peek JJ, Kourakis J dissenting).

(Sulan J): The evidence relating to the Richmond premises was insufficient to establish that the appellant knew the drugs and equipment were there - the prejudicial effect of the evidence far outweighed its probative value - the evidence of the appellant's involvement with the Richmond premises constitutes a link in the chain of proof necessary to establish that the appellant was involved in the manufacture of methylamphetamine at the St Agnes premises - the trial Judge should have directed the jury that before they could use the Richmond premises as evidence to support guilt they must be satisfied beyond reasonable doubt that the appellant was in possession of, or had a connection with, the drugs at the Richmond premises.

(Peek J): Verdict of jury unreasonable as the evidence adduced was insufficient to prove the charge beyond reasonable doubt – there are a number of possible reasons for the usage of ephedrine at both houses which do not necessitate the appellant having participated in a manufacturing enterprise at the St Agnes premises - evidence of the items found at the Richmond premises was inadmissible or should have been excluded in the exercise of discretion on the basis that the prejudicial effect of the evidence outweighed any probative value – trial Judge's directions to jury regarding this evidence were inadequate.

(Kourakis J): (In dissent). Evidence of appellant's presence at Richmond premises properly admitted as circumstantial evidence to prove the appellant's presence at St Agnes house was not innocent - no misdirection given to jury - propensity direction given was sufficient - no misdirection of fact on the evidence - no duplicity - meaning…

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AGLC
R v Tartaglia [2011] SASCFC 88
Case
[2011] SASCFC 88
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by Antonio Tartaglia against his conviction for manufacturing a large commercial quantity of methylamphetamine for sale. Tartaglia and two co-accused were jointly charged, with the jury ultimately convicting Tartaglia on the manufacturing charge while acquitting his co-accused. The appeal was heard by Sulan, Kourakis, and Peek JJ.

The legal issues before the court included whether the evidence was capable of proving Tartaglia's guilt beyond reasonable doubt, whether evidence of his presence at another house where chemical ingredients for methylamphetamine were found was wrongly admitted, and whether the jury received appropriate warnings regarding this propensity evidence. Tartaglia also raised grounds concerning the conviction being bad for duplicity and a misdirection of fact.

The court considered the evidence, which included the undisputed discovery of approximately 6.7 kilograms of methylamphetamine at a house in St. Agnes. The prosecution's case against Tartaglia relied on DNA evidence from a drinking straw found in the house and the sighting of his car outside on a prior occasion. Evidence was also admitted showing Tartaglia's presence at another house shortly before the St. Agnes discovery, where chemicals for manufacturing methylamphetamine were found. The court reasoned that the totality of the evidence, including the presence of chemicals and equipment in the St. Agnes house, which was clearly set up for drug production, and Tartaglia's connection to both locations, led to the only rational conclusion that he was a participant in the manufacture of the methylamphetamine.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The prosecution evidence, that about 6.7 kilograms of methylamphetamine packaged in three portions and found in a padlocked metal tool box, was produced in a house at St. Agnes was not disputed. The street value of the methylamphetamine was estimated to be in excess of $2 million. The only evidence of the appellant’s presence at the house was a DNA match to a drinking straw in a “McDonald’s” cup on a kitchen bench top and the sighting of his car, on the street outside the house, on an occasion in January or February 2008. Evidence, also undisputed, was given of the appellant’s presence just days before the methylamphetamine was found at St. Agnes in another house in which chemical ingredients for the making of methylamphetamine were found. The appellant complains that that evidence was wrongly admitted, was not the subject of an appropriate warning and that, in any event, was not capable of proving his guilt beyond reasonable doubt. I would dismiss the appeal on those grounds. I would also dismiss the appeal on the grounds which complain that the conviction is bad for duplicity and that there was a misdirection of fact on the evidence. My reasons follow.The Evidence The existence of a drug laboratory in the St. Agnes house was discovered on the night of Saturday, 8 March 2008. The house was under police guard until a thorough search was undertaken on 9 March 2008. The fingerprints of the co-accused JV were identified on 12 separate glass panels found in the St. Agnes house, and on an acetone tin in a rubbish bag. JV’s DNA profile matched DNA found on a “Powerade” bottle. JV gave evidence that he had assisted his uncle, who was a glazier, to deliver 15 glass panels to the St. Agnes house late in January 2008. He testified that, on the day of the delivery, it was hot and he had drunk from the “Powerade” bottle found at the house. He explained his thumb print on the acetone tin by testifying that he had moved a number of items in the course of delivering the glass panels. The DNA of the accused AV matched the profile of DNA found on a lemonade bottle on a kitchen bench. AV did not give evidence. The house at St. Agnes was not used as a residence. The police who searched it found no indication that any person resided there. Instead, just about every room of the house contained chemicals and equipment. The house was very obviously set up for the production of methylamphetamine. I have already referred to the many glass panels that were discovered there. The kitchen of the St. Agnes house, in which the straw with the matching DNA profile was found, contained frypans, glassware, vacuum pumps, filters and an array of chemicals, all with the apparent purpose of producing methylamphetamine. The chemicals included acetone and red iodine. Ephedrine was found in the St. Agnes house and was the base product from which the methylamphetamine was produced. The St. Agnes house was a rental property. The person who approached the leasing agents used the name Mark Thomas and gave a mobile telephone number. He signed a rental agreement on 30 January 2008. The agreement records that the tenancy commenced on 21 January 2008 but the leasing agent testified that occupancy commenced on 30 January 2008. In light of JV’s testimony that the glass panels were brought into the house in late January 2008, it can be taken that the equipping of the house commenced soon after the principals behind the enterprise took occupancy. Moreover, it is beyond doubt that notwithstanding JV’s understandable testimony that he did not see any other drug making paraphernalia, there was already a tin of acetone on the premises, and other items, when the panels were delivered. As will be seen, acetone is only needed in the last stage of methylamphetamine manufacture.

Decision

Reasons for decision

PEEK J (dissent)
The only rational conclusion which can be drawn from the totality of the evidence is that the appellant was a participant in the manufacture of the methylamphetamine found at the St. Agnes house.Conclusion I would dismiss the appeal. This is an appeal against conviction of manufacturing a large commercial quantity of a controlled drug for sale. Introduction The appellant and two co-accused were jointly charged on Information with two alternative counts. Count 2 charged the manufacturing of a large commercial quantity of a controlled drug for sale at premises at Whiting Road, St Agnes (“the St Agnes house”). Count 1 charged the trafficking in a large commercial quantity of a controlled drug. The large commercial quantity of a controlled drug in each count was the methylamphetamine that was found inside a locked box at the St Agnes house. The Judge directed the jury to consider count 2 first and not to proceed to count 1 if they convicted of count 2. The jury convicted the appellant of count 2 and accordingly, no verdict was taken on count 1. The jury acquitted each of the two co-accused of both charges. The Information was as follows:ANTONIO TARTAGLIA, JULIAN VELONAKIS and ANTONIO VOTTARIare charged with the following OffencesFirst CountStatement of OffenceTrafficking in a Large Commercial Quantity of a Controlled Drug. (Section 32(1) of the Controlled Substances Act, 1984).Particulars of OffenceAntonio Tartaglia, Julian Velonakis and Antonio Vottari on the 9th day of March 2008 at St Agnes, trafficked in a large commercial quantity of a controlled drug, namely methylamphetamine.Second CountStatement of OffenceManufacturing a Large Commercial Quantity of a Controlled Drug for Sale. (Section 33(1) of the Controlled Substances Act, 1984).Particulars of OffenceAntonio Tartaglia, Julian Velonakis and Antonio Vottari between the 1st day of January 2008 and the 9th day of March 2008 at St Agnes, manufactured a large commercial quantity of a controlled drug, namely methylamphetamine intending to sell any of that drug or believing that another person intends to sell any of that drug.An overview of the appeal Put another way, the truism that persons who have a common interest tend to talk and share information applies to both legitimate and illegitimate enterprises. If a change in modus operandi in the manufacture of illicit substances takes place, say from pseudoephedrine to ephedrine, it will usually occur for a reason and that reason may tend to affect the various different participants in illicit drug manufacturing in much the same way. Accordingly, one must bear in mind that the use of the same precursor ephedrine at two houses does not necessarily suggest, much less establish, that the same person is actively involved in both enterprises. Rather, it may simply be that an external cause common to both houses is at work. An example of such a common cause may be as simple and obvious as the arrival of a large illicit shipment of ephedrine at about the end of 2007 or the beginning of 2008 which might well affect the pricing and availability dynamics as between ephedrine and pseudoephedrine on the local illicit market.

Ratio Decidendi

Legal Principle Established

Established by:

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