R v Tartaglia
[2011] SASCFC 88
•15 August 2011
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 of 'manufacture' in Controlled Substances Act 1984 (SA) should not be limited - verdict not unreasonable - supported by evidence.
Controlled Substances Act 1984 (SA) s 4, s 13, s 32(1)(d); Criminal Law Consolidation Act 1935 (SA) s 352, s 353; Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA), referred to.
Shepherd v The Queen (1990) 170 CLR 573; R v Merritt [1999] NSWCCA 29; Velevski v The Queen (2002) 76 ALJR 402; Burrell v The Queen (2009) 196 A Crim R 199; Pfennig v The Queen (1995) 182 CLR 461; R v Ellis (2010) 107 SASR 94; R v Sutton (No 2) (1983) 32 SASR 553; R v Hamzy (1994) 74 A Crim R 341; Walsh v Tattersall (1996) 188 CLR 77; Johnson v Miller (1937) 59 CLR 467; Ayles v The Queen (2007) 97 SASR 78; Ayles v The Queen (2008) 232 CLR 410; R v Nguyen (2010) 85 ALJR 8; SKA v The Queen (2011) 85 ALJR 571; R v Hore [2010] SASCFC 60; Martin v Osborne (1936) 55 CLR 367; R v Duncan (2011) 109 SASR 479; M v The Queen (1994) 181 CLR 487; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; Barca v The Queen (1975) 133 CLR 82; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; R v Dimitropoulos (unreported, Court of Criminal Appeal, 18 September 1992, judgment no S3625); R v Arrol [1999] SASC 293; R v Anderson [2004] SASC 201; R v Smith (1883) SALR 47; Knight v The Queen (1992) 175 CLR 495; Cutter v The Queen (1997) 71 ALJR 638; R v Bailey [1924] 2KB 300; Markby v The Queen (1978) 140 CLR 108; Perry v The Queen (1982) 150 CLR 580; Sutton v The Queen (1984) 152 CLR 528; Reid v The Queen [1980] AC 343; Andrews v The Queen (1968) 126 CLR 198; Gerakiteys v The Queen (1983) 153 CLR 317; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, considered.
R v TARTAGLIA
[2011] SASCFC 88Court of Criminal Appeal: Sulan, Kourakis and Peek JJ
SULAN J: I have read the draft reasons of Kourakis J and Peek J. The relevant facts and circumstances of the case have been identified in their judgments, and I do not propose to deal with the facts in detail.
The appellant was not charged with any offence relating to the presence of ephedrine hydro phosphorous acid or equipment that could be used to produce methylamphetamine at the Richmond premises. The evidence relating to the appellant’s connection with the Richmond premises was limited to the following:
·He had resided at the house with his estranged wife until August 2007.
·The Richmond house was owned by his sister-in-law.
·In the early hours of 5 March 2008 he was sleeping at the Richmond house when associates of his sister-in-law attended and required him to leave.
·On that day, and on 10 March, police attended at the house and found a 20 litre drum containing ephedrine in a methanol/ethanol solution concealed near the back door. In the shed at the rear of the house there were glass jars containing ephedrine in a methanol/ethanol solution. In a freezer in the house was a drum containing ephedrine. There was other equipment which could be used for the production of methylamphetamine.
·There was no evidence about where in the house the appellant had been sleeping. No evidence was led to show that he had been in any area in which the illicit drugs or equipment or any other relevant material was found.
·There was no evidence about the length of time he had been at the house, or the reason why he might have been there.
·There was no evidence of who had access to the Richmond house, or who had keys to the property.
I agree with Peek J that the evidence relating to the Richmond house was insufficient to establish that the appellant knew that the drugs and equipment were there. There was insufficient evidence to support a conclusion that he was in possession of the drugs or equipment. There was simply insufficient evidence to connect the appellant with any illicit activity arising from the drugs and paraphernalia found at the Richmond house. It is not insignificant that no charges were laid against the appellant in respect of his presence at the Richmond house.
The prejudicial effect of that evidence far outweighed any probative value. Although there may have been a great deal of suspicion surrounding the appellant’s presence at the house, it was not open to draw the conclusion that he knew or had any connection to the drugs and paraphernalia found at that house. It is not known who had access to the house. It cannot be discounted that persons other than the appellant might have been involved in placing the drugs and equipment at the Richmond house.
I do not agree with Kourakis J that there was sufficient evidence to establish the appellant’s connection with the ephedrine and other material found at the house. The trial Judge did not give reasons for permitting the evidence to be led. In the circumstances, it is not possible to determine upon what basis he ruled that the evidence should be admitted. In my view, the prejudicial effect of the evidence far outweighed any probative value, and the evidence should not have been admitted.
A further issue arises. Having admitted the evidence about the Richmond house, what directions were required. The trial Judge directed the jury in the following terms:
Ladies and gentlemen, the prosecution bases its case against each of the three accused upon what we call circumstantial evidence. Circumstantial evidence is to be distinguished from direct evidence. Direct evidence is the evidence of a person who witnessed the actual offence, who saw or perhaps heard. Circumstantial evidence, as its name suggests, is evidence of the circumstances surrounding the alleged offence from which the prosecution asks you to infer beyond reasonable doubt that the accused, or one of them, committed an offence.
To speak of evidence in a case as circumstantial does not imply that the evidence is necessarily weak or unsatisfactory. Circumstantial evidence can afford very secure grounds indeed for a conclusion of guilt. You will be aware that many crimes are committed in secret. It is often necessary, therefore, that courts and juries should act on circumstantial evidence. Nevertheless, I need to give you a special direction regarding the approach which you should take to circumstantial evidence.
The amount of circumstantial evidence that will suffice to prove a charge beyond reasonable doubt will vary from case to case. The number of circumstances proved can vary enormously and so can the weight of the various circumstances that are proved. As you have heard, a case which depends substantially upon circumstantial evidence is sometimes likened to a rope and the many strands which go to make it up. The rope has the combined strength of all of its strands. Some of the strands may be strong while some of the strands may be weak. When they are all twined together they produce a total effect, the strength of which is greater than the strength of any single strand. The weight of a case which depends upon circumstantial evidence, in the result, depends upon the combined strength of all the facts that are proved to you.
…
It is important to understand that your approach to the circumstantial evidence in this case requires two steps. First, you must look at the facts upon which the prosecution relies as circumstantial evidence and decide which facts you accept as being established by the evidence. Then you must consider what inference or inferences you are prepared to draw from those facts.
…
In the case against the accused Tartaglia, the prosecution relies upon these circumstances:
1. On at least one occasion a car registered in his name was seen at 50 Whiting Road by the neighbour Mrs Robbins. You remember she worked as a dressmaker in an upstairs room.
2. Mr Tartaglia’s DNA was found on a drinking straw in a McDonald’s drinking cup at the Whiting Road house.
3. In Mr Tartaglia’s mobile telephone, in the contacts section, were entries for ‘Tony V’ and a ‘Tony T’(the co-accused in the case).
Further, in its case against Mr Tartaglia, the prosecution also relies upon circumstances which suggest, on the prosecution case, that Mr Tartaglia was living at 6 Bignell Street at Richmond and that he was in possession of certain drug related items found there. Let me remind you of that evidence in a little more detail and some of it is set out in the Statement of Agreed Facts, which you have.
He then dealt with the Richmond evidence. Later he said:
Let me now give you some further directions about the case against Mr Tartaglia.
As you know you have heard evidence of what was found at the premises at which he may have been living – depending on the view you take of the evidence – at 6 Bignell Street. If you accept that evidence you may be satisfied that, at 6 Bignell Street, Mr Tartaglia was or had been involved in the manufacture of illegal drugs. Well, ladies and gentlemen, he has not been charged with any offence in respect of anything found at 6 Bignell Street. There are no charges against him in respect of that address. As a result of that there are proper and improper uses of the evidence of what was found there.
You must not reason that because he was found in possession of those items, if you find that to be the case, that he is therefore the sort of person who would be likely to commit the offences charged in respect of the premises at Whiting Road, but you may use the evidence of what was found at 6 Bignell Street, if you accept it, as evidence that Mr Tartaglia was interested in and knew about the process for the manufacture of methylamphetamine which had been used at Whiting Road.
He correctly directed the jury that mere presence at the St Agnes premises was not enough to convict the appellant, but that there must be evidence that the appellant participated in the manufacture of methylamphetamine. He directed the jury as follows:
Let me then say this: I understand the prosecution’s submission to be this: that in the case of each accused there is circumstantial evidence upon which you can be satisfied beyond reasonable doubt that the particular accused was present at the house. The prosecution then asks you to look at some surrounding circumstances, namely that such presence was, in fact, presence at premises which were being used solely and, of course, secretly as a drug making laboratory at which a large and very valuable amount of methylamphetamine had been manufactured.
Then, in addition to those facts, the prosecution, in Mr Targalia’s case, asks you to look at which the prosecution submits, is his knowledge of and interest in the manufacture of methylamphetamine from ephedrine.
He dealt with counsel for the appellant’s submission:
With respect to what was found at 6 Bignell Street, Ms Downey asks you to ignore it. She submitted that it is difficult to know who was actually in possession of the house at Bignell Street. How can you be satisfied, she asks, that Mr Tartaglia was in possession of the chemicals found there? She emphasised that there is no evidence about how often he was present at 6 Bignell Street or if anyone else was staying there. There was no evidence about who, if anybody, had access to the premises or who else may have had keys. Ms Downey’s submission is that there is simply insufficient evidence for proof beyond reasonable doubt of either of the offences charged against Mr Tartaglia.
The general direction that circumstantial evidence depends upon the combined strength of all the facts which are proved, although correct, failed, in this case to have regard to the fact that, in considering whether the case had been proved, the evidence of the appellant’s involvement with the drugs and paraphernalia at Richmond was of such significance that it required a direction that it must be proved beyond reasonable doubt. The general direction overlooks that, in some cases of circumstantial evidence, there are facts which, if not established despite other items of circumstantial evidence, would result in the case collapsing. Those facts, rather than being a strand in the rope as described in cases of circumstantial evidence, are in effect a link in the chain.
The evidence of the appellant’s involvement with the Richmond premises was such a fact, or facts, which is a link in the chain of proof necessary to establish that the appellant was involved in manufacturing methylamphetamine at the St Agnes premises.
In Shepherd v The Queen,[1] Dawson J, with whom Mason CJ, Toohey and Gaudron JJ agreed, discussed circumstantial evidence and the necessity in some cases to identify intermediate facts which constitute an indispensable link in the chain of reasoning towards the inference of guilt. He said:[2]
Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.
On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol 9 (Chadbourn rev 1981), par 2497, pp 412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.
[1] (1990) 170 CLR 573.
[2] Ibid 579.
The question of whether such a direction is required will depend on the circumstances of the case. In R v Merritt,[3] the New South Wales Court of Criminal Appeal (Wood CJ at CL, James and Adams JJ) considered whether a general direction about circumstantial evidence was sufficient. In that case, the trial Judge had directed the jury in similar terms to the direction given in this case. There were several items of circumstantial evidence upon which a jury could conclude that the appellant had been a party to a robbery. The Court said:[4]
Ultimately, of course, it is for the trial judge to determine whether to give directions that relate the standard of proof to what are, or might be, intermediate facts “which constitute indispensable links in a chain of reasoning towards an inference of guilty” (Shepherd 170 CLR per Dawson J at 579). It is important in this regard, we think, to appreciate that the trial judge should, in considering this question, ask whether the jury might reasonably regard certain facts as intermediate facts even if, as it happened, his Honour did not regard any of the facts in that light. This is implicit in Chamberlain v The Queen [No 2] (1984) 153 CLR 521 (eg per Gibbs CJ and Mason J at 535, 537-538, Deane J at 626-627) and see Shepherd 170 CLR 573 per Dawson J at 583 and 585, McHugh J at 592 and 594.) It is important to note, as McHugh J said in Shepherd¸170 CLR at 593, that Chamberlain was concerned with whether the verdict was unsafe or unsatisfactory, not with the directions which a jury should receive on the standard of proof to be applied to the circumstances of the case. In our opinion, where one or more facts might reasonably be regarded as intermediate facts, it will usually be essential for the trial judge to identify those facts and instruct the jury that if the jury considered that such facts were indispensable links in their chain of reasoning towards an inference of guilt, they would need to be satisfied of them beyond reasonable doubt before convicting. If the case is one where, in the judge’s opinion, there were no such crucial intermediate facts, it “will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence” (Shepherd 170 CLR at 579 per Dawson J), directions which were given by his Honour in this case. It is clear that there were in this case many individual items of evidence themselves going to establish an important fact. Thus, the finding of the beanie in the getaway car which was indistinguishable from that found in the carpark, enabled the conclusion to be inevitably drawn, when added to the evidence of Mrs Hawker, that the latter had been used by the unidentified robber and the fact that gloves were found in the getaway car together with the similar beanie was a significant indicator that the gloves found with the other beanie had also been used by an offender. McHugh J pointed out, in Shepherd (at 170 CLR 592) that “there are many case where the probability of the correctness of an inference of guilt drawn from the circumstances is greater than the probability of the truth of any of the individual circumstances”. Although “in a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt” which is “likely to be the case where the incriminating facts relied on to establish the inference are few in number”. (See, also, Dawson J, 170 CLR at 579).
Having regard to the relatively few incriminating facts in this case, we think that it was both desirable and necessary that his Honour should have identified for the jury the crucial factual issues and assisted them to apply to them the legal rule requiring proof beyond reasonable doubt of the Crown case and, in particular, directed them that if they regarded any particular fact as being an indispensable link in the chain of proof, then that fact must be proved to their satisfaction beyond reasonable doubt before they could convict. We do not think that this was a case of such simplicity as to enable a general direction concerning the onus and standard of proof to suffice. This was especially so, in our view, because of the conventional direction that drew the distinction between proving guilt beyond reasonable doubt on the one hand and establishing individual facts by reference to other different but unexplained standards on the other and the other proper directions as to the relevance of the appellant’s silence.
[3] [1999] NSWCCA 29.
[4] Ibid [70]-[71].
The Court identified those matters which, in its opinion, were intermediate facts requiring proof beyond reasonable doubt. The Court observed that if there are relatively few incriminating facts, then it may be incumbent upon the trial judge to identify for the jury the crucial factual matters and direct the jury that those facts require proof beyond reasonable doubt.
In Velevski v The Queen,[5] Gleeson CJ and Hayne J confirmed the proposition that there may be cases in which an intermediate fact as a link in a chain of reasoning must be proved beyond reasonable doubt. In such a case, it is necessary for a trial judge to explain to the jury how a fact may be an intermediate fact. Ultimately, it is a matter for the jury to determine whether the fact is an intermediate fact. If they conclude that it is an intermediate fact, then proof of it beyond reasonable doubt is required.
[5] (2002) 76 ALJR 402.
In Burrell v The Queen,[6] the appellant was convicted of kidnapping and murder. The case was circumstantial. No body had been found after the deceased had disappeared. The Crown case relied on three major planks. First, on 6 May 1997, when the victim disappeared, she was seen in a Pajero motor vehicle, similar to the appellant’s vehicle, leaving premises in the city. Secondly, notes found in the appellant’s premises related to things to be done in connection with a ransom. Thirdly, a call had been made by the kidnapper from a telephone box at a time when the appellant was in the city and had made a call from that telephone. There was also evidence that the appellant was in financial difficulty at the time.
[6] (2009) 196 A Crim R 199.
At trial it was argued that, in respect of the three principal planks, the Judge should direct the jury that they must be satisfied of each of them beyond reasonable doubt. In his summing up, the trial Judge directed the jury that it was not restricted to any piece or body of evidence when deciding whether guilt has been proved beyond reasonable doubt. The jury was told that they should judge the case on all the evidence. The jury was directed to take into account every piece of evidence which, in the jury’s view, is capable of bearing on its decision. In other words, the trial Judge directed the jury in a standard way in which a circumstantial evidence direction would be given in a case where each item of circumstantial evidence is to be regarded as a strand in a rope.
On the appeal, it was argued that the trial Judge erred in not giving a direction to the jury that, if the jury was going to act on the Pajero evidence, then it had to be satisfied beyond reasonable doubt of the facts alleged.
The Court considered that the trial Judge was correct in refusing to give such a direction. The Court observed that the case was not a case that was dependent upon the Pajero evidence or, for that matter, the other two items of evidence, to which I have referred, being proved beyond reasonable doubt. The Court observed that there was a large body of evidence upon which the jury could be satisfied beyond reasonable doubt that the appellant had abducted and later murdered the deceased. The subject evidence was not an indispensable intermediate fact forming a link in a chain of circumstantial evidence. A Shepherd direction was not required.
The Court concluded:[7]
Even if one or more of the three independent bodies of evidence was not sufficient, the inference of guilt could be drawn from a combination of the range of circumstantial facts of which the Crown adduced evidence. The broader case was not abandoned by the Crown, nor did it undergo any mutation in the Crown’s address to the jury, considered in its entirety, in which the Crown reminded the jury of the larger body of evidence. The Crown case at all times remained one where individual facts gained cogency from other facts in the case. In particular, as the trial judge directed the jury, the appellant could have been detained much later than shortly after 9.38 am, which was a requisite finding on the Pajero evidence. The inference that she had been kidnapped arose from the combination of circumstances: that she did not meet her husband as previously arranged; the receipt of the ransom note; and the fact that it was out of character for her to disappear of her own accord.
[7] Burrell v The Queen (2009) 196 A Crim R 199, 228 [134].
The Court said that the giving of a Shepherd direction may well have confused the jury. They simply had to be satisfied beyond reasonable doubt on the whole of the evidence of the appellant’s guilt, and such a direction had been given.
I have earlier considered the evidence relating to the Richmond premises. The evidence against the accused in respect of the St Agnes premises was that, on one occasion, some time prior to the day upon which the police attended those premises, a car registered in the appellant’s name was seen near the premises. No person was seen. Further, that the appellant’s DNA was found on a drinking straw at the premises and that he was an associate of the co-accused, both of whom were acquitted. It could be argued that the evidence against the co‑accused, JV, was stronger than the evidence against the appellant. The evidence against AV, excluding the Richmond house, was at least as strong as the evidence against the appellant. AV did not give evidence.
In my view, the evidence from which the jury was asked to conclude that the appellant was in possession of drugs and equipment at the Richmond house was necessary to establish his guilt in respect of the St Agnes house. The evidence of the Richmond house, and the conclusion that the appellant was in possession of the drugs and equipment, or was at least involved in some illicit activity in respect of the drugs and equipment at the Richmond house, was a necessary link to establish his guilt in respect of the St Agnes house. In my view, without that evidence, the appellant could not have been convicted of the charge.
Unlike the position in Burrell, for reasons which I have given, the Richmond evidence was of such importance that, without it, the prosecution case must fail. For the conclusion of guilt to be drawn, it was necessary to be satisfied of the appellant’s involvement in the manufacture of drugs or possession of drugs and equipment at the Richmond premises.
It follows, and I conclude, that the trial Judge should have directed the jury that, before they could use the Richmond premises as evidence to support the guilt of the appellant, they must be satisfied beyond reasonable doubt that he was in possession of, or had a connection with the drugs at the Richmond premises which went beyond his mere knowledge of them. As I have earlier indicated, the evidence was insufficient to establish even knowledge beyond reasonable doubt.
I make one further observation. There are cases involving circumstantial evidence in which it is possible to reason that the hypothesis of innocence becomes fanciful, as the arm of coincidence cannot stretch so far as to conclude innocence as a rational hypothesis. For example, if in a case there were numerous premises at which methylamphetamine was being produced, and at each of those premises there was evidence connecting the accused to those premises, then it might be possible to conclude that the arm of coincidence does not stretch so far as to conclude as a reasonable possibility that the accused’s presence at each of the locations was innocent. However, the evidence in this case cannot be said to fall into that category.
I would allow the appeal, set aside the conviction and enter a verdict of not guilty.
KOURAKIS J: The appellant appeals against his conviction for the offence of manufacturing a large commercial quantity of methylamphetamine. The particulars of his conviction are that he, together with his co-accused, JV and AV, manufactured the drug between January and March 2008 at St. Agnes. The appellant was found guilty by the unanimous verdict of a jury, which also unanimously acquitted his co-accused.
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.
Police inquiries were not able to locate a person by the name of Mark Thomas who had any connection with the St. Agnes house. The name of the subscriber to the mobile telephone number given by Mark Thomas was Jeremy White. No Jeremy White with a connection to that telephone number was located by the police. The Campbelltown address given by the subscriber to that number was fictitious.
It was an agreed fact that, from early 2008, the appellant lived in a house, which was not the laboratory, but was also in St. Agnes.
The evidence connecting the appellant to the Richmond house was a series of agreed facts. The Richmond house was the appellant’s former matrimonial home; the appellant and his wife had rented it from his wife’s sister, AK. The appellant and his wife had separated in August 2007 in acrimonious circumstances which included antagonism between the appellant and AK. It was an agreed fact that on 5 March 2008 the appellant was found asleep in the bedroom of the Richmond house. He was evicted from the Richmond house at about 5:30am by AK’s associates.
Police attended and searched the Richmond house on the same day. On that occasion they found a 20 litre drum in a freezer in the kitchen of the house. The contents of the drum were analysed and found to contain 50 grams of ephedrine in a methanol solution. Police also found an electric frying pan which contained a residue comprising ephedrine and methylamphetamine. A Lipton iced tea bottle found on the same day contained hypo-phosphorous acid.
Police visited the Richmond house again on 10 March 2008. A 20 litre drum containing liquid and sediment was found near the back door of the house. The drum contained 8.1 grams of ephedrine in a methanol/ethanol solution. Two glass jars containing liquid and sediment were found in a shed in the back yard. One jar contained 8.6 grams of ephedrine in a methanol/ethanol solution and the other contained 7.4 grams of ephedrine in solution.
An expert forensic scientist, Mr P, gave evidence about the process of methylamphetamine manufacture. Mr P was a forensic chemist employed at the Forensic Science Centre of South Australia who worked in the Illicit Drugs Group. The work of that group was to examine and report on items suspected to be illicit drugs. It was also part of their work to inspect clandestine illicit drug laboratories discovered by police. It was implicit in his evidence that the group were regularly, if not exclusively, used by the police in their investigations of illicit drug manufacture.
The first step in methylamphetamine production is to extract ephedrine or pseudoephedrine from cold and flu tablets or from powder before it has been pressed into tablets. Mr P testified that pseudoephedrine is more commonly the base product than ephedrine. The powder or crushed tablets are dissolved leaving the active ingredient in solution and the remainder of the tablets as a sediment. The solvents that can be used for extraction include methanol, toluene and mineral turpentine. The solution is then subjected to an evaporation process which may be accelerated with the use of an electric frypan. Alternatively, evaporation at room temperature may be optimised by increasing the surface area over which the solution is spread, for example by using the glass panels found at the St. Agnes house. The evaporation process leaves a residue of either ephedrine or pseudoephedrine, depending on the compound used in the cold and flu medication.
The second step is to subject the ephedrine or pseudoephedrine to a chemical process using either hypo-phosphorous or red iodine. The product of that process is methylamphetamine.
The third step is to use acetone to purify the methylamphetamine in what is referred to as a recrystallisation process. Methylamphetamine is dissolved in acetone and left to crystallise out of the solution.
Mr P testified that all of the necessary ingredients and equipment to produce methylamphetamine from ephedrine were present at the St. Agnes house.
Finally, Mr P testified, without objection, that neither he nor his colleagues in the Illicit Drugs Group had seen ephedrine used for the manufacture of methylamphetamine for ten years before the St. Agnes laboratory was discovered. Mr P was not asked by counsel for Mr Tartaglia whether ephedrine had been found more frequently since the discovery of the St. Agnes laboratory.
The appellant did not give evidence.
Evidence Properly Admitted
The appellant complains that the evidence of his presence in the Richmond house was wrongly admitted. He contends that there was insufficient evidence to establish that he was in possession of the ephedrine and associated material at the Richmond house and that his mere presence at the Richmond house was only weakly probative but very prejudicial. I would reject those submissions. For the reasons which appear in my discussion of the appellant’s complaint that the verdict was unreasonable, I have concluded that the evidence relating to the Richmond house circumstantially denies any possibility that the appellant’s presence in the St. Agnes house was innocent. It is, therefore, admissible on the Pfennig test.[8]
[8] Pfennig v The Queen (1995) 182 CLR 461; R v Ellis (2010) 107 SASR 94.
It is, in any event, admissible because its probative value does not depend on propensity reasoning. It is the improbability that the coincidence of the appellant’s presence in two different houses with the rare element ephedrine is an innocent one which gives the evidence probative value. That improbability is increased by the close temporal proximity of his presence in both houses and the other circumstantial connections between the appellant and both houses to which I refer in [73]-[93] below. The Richmond house evidence is overwhelmingly probative in the context of the St. Agnes house evidence and was, therefore, admissible.
No Misdirection
The appellant also complains that the Judge’s directions about the impermissible use of the Richmond house evidence were so inadequate that there has been a miscarriage of justice. In particular, the appellant complains that the Judge should have directed the jury that they had to be satisfied beyond reasonable doubt that the appellant possessed the ephedrine in the Richmond house before it could use that evidence in proof of the St. Agnes offending.
In my view, that complaint misconceives the circumstantial nature of the evidence concerning the Richmond house. It is in the nature of items of circumstantial evidence that each item can reinforce the others. In R v Sutton (No 2),[9] Wells J explained the nature of circumstantial evidence and its relationship to “similar fact evidence”, as follows:[10]
2.The probative force of circumstantial evidence depends on the united force of all the circumstances put together. So evaluated, a body of circumstantial evidence may attain a high degree of cogency, notwithstanding that its constituent items are, individually, colourless. Moreover, there may be two or more stages of drawing inferences before a final conclusion is reached, and a medial inference drawn from a body of circumstantial evidence may form part of the primary material from which further inferences are drawn.
3.In particular, there may be some cases in which, as Dixon C.J. once put it in argument, the relevance and cogency of no single piece of evidence becomes apparent until the very last item of evidence is locked into place, whereupon the relevance and cogency of all items are demonstrated, uno icto. In such cases, it is to misconceive the very nature of circumstantial evidence to impugn the admissibility of the evidence by contending that it is necessary to assume, at the moment when objection is taken to a particular item of such evidence, that the case, in proof of which the evidence was tendered, was made out in order to render it admissible.
4.The designation "similar fact evidence" denotes a wide and ill-defined class of circumstantial evidence whose identifying characteristic is the repetition of facts or acts that display marked underlying and essential similarities to such a degree that an inference can safely be drawn therefrom that represents proof (or disproof) of a fact in issue, or a fact relevant thereto. The probative force of such evidence is derived, as is the probative force of all cohesive circumstantial evidence, from the one tenet of human experience, namely, that coincidence is unlikely (Reg v Robinson; R. v Smythe, per Salmond J; R v Bond), and that where it would be a remarkable coincidence that a particular course of events would happen by accident, the inference may drawn that they were the outcome of a specific human act or design. Similarity of repetition is one method of proving design, but—as is obvious—it is not the only way, nor need it, in any given case, be the only use made of the evidence comprising repetition of that kind.
(Citations omitted)
[9] (1983) 32 SASR 553.
[10] R v Sutton (No 2)(1983) 32 SASR 553 at 562-3.
In this case the jury were entitled to have regard to the evidence of the appellant’s presence in the St. Agnes house in considering whether he was in possession of the substances found in the Richmond house. Moreover, even if they did not form a concluded view on that question, they were entitled to have regard to the likelihood that his presence in both houses was not accidental and innocent but arose from a criminal association with the substances found in them.
The appellant also contends that the Judge should have directed the jury that, even if they were so satisfied, they should not proceed “directly” from that finding to a finding that the appellant was criminally involved in the manufacture at the St. Agnes house.
The Judge warned the jury against improper propensity reasoning in the following terms:
As you know you have heard evidence of what was found at the premises at which he may have been living – depending on the view you take of the evidence – at 6 Bignell Street. If you accept that evidence you may be satisfied that, at 6 Bignell Street, Mr Tartaglia was or had been involved in the manufacture of illegal drugs. Well, ladies and gentlemen, he has not been charged with any offence in respect of anything found at 6 Bignell Street. There are no charges against him in respect of that address. As a result of that there are proper and improper uses of the evidence of what was found there.
You must not reason that because he was found in possession of those items if you find that to be the case, that he is therefore the sort of person who would be likely to commit the offences charged in respect of the premises at Whiting Road, but you may use the evidence of what was found at 6 Bignell Street, if you accept it, as evidence that Mr Tartaglia was interested in and knew about the process for the manufacture of methylamphetamine which has been used at Whiting Road.
No further warning was necessary. In particular it would, in my respectful opinion, have been wrong to direct the jury that they should be satisfied that the appellant was in possession of the drugs and equipment at the Richmond house before they could use that evidence in proof of the offence charged. This was a case in which the evidence of the appellant’s presence at St. Agnes had to be considered together with the evidence of the contemporaneous presence of the appellant and ephedrine at the Richmond house. The evidence could not be compartmentalised.
The direction was, if anything, favourable to the appellant. It did not explain to the jury that the Richmond house evidence raised an improbability that his association with the St. Agnes laboratory was innocent and it directed the jury that the probative value of the evidence was contingent on their satisfaction that he was, or had been, involved in the manufacture of mehylamphetamine at Richmond.
Contrary to the appellant’s contention, there was no need to direct the jury that any production of methylamphetamine at the Richmond house may have been an entirely separate process from the St. Agnes manufacture because the jury were clearly directed that it was the manufacture at St. Agnes that was charged and that the prosecution had to prove it. In any event, there was no real risk that the jury would use the Richmond house evidence in that way. The strong inference arising from the Richmond house evidence was that ephedrine extracted there would be converted to methylamphetamine elsewhere, and not that methylamphetamine would be produced at the Richmond house.
The Misdirection on the Evidence
The appellant also complains of a factual misdirection about a similarity of processes apparently employed at the Richmond house and the St. Agnes house.
The Judge did make a mistake of fact in the course of his directions to the jury. After referring to the ephedrine found at the Richmond house, he said:
The prosecution relies upon the finding of those substances. It asks you to infer, from the circumstances I have outlined, that the accused, Tartaglia, was the occupier of the premises at [the Richmond house] in March 2008 and that he was in possession of the various items to which I have just referred and that his possession of those items shows that he had an interest in extracting methylamphetamine from the ephedrine using the same process and chemicals as had been used in the secret laboratory at [St. Agnes].
(Emphasis added)
Methylamphetamine is not “extracted” from ephedrine; it is a compound manufactured from ephedrine using hypo-phosphorous acid or iodine. Only a trace of methylamphetamine was found at the Richmond house and the manufacturing chemical found at Richmond was hypo-phosphorous, not iodine which was used at St. Agnes. The only similarity, therefore, was the use of ephedrine as a precursor and the use of similar solvents to extract ephedrine from cold and flu mixtures.
However, the jury heard the evidence and submissions. They would, in my view, have understood the Judge’s direction in the sense in which it was undoubtedly intended, which was simply that in both houses it was the uncommon precursor ephedrine and not pseudoephedrine that was the raw material for the manufacture of methylamphetamine.
No Duplicity
The appellant also complains that the information was bad for duplicity because there were three separate packages, of variable purity, located in a tool box. I would reject that submission. It assumes that the offence of manufacture is circumscribed by the way in which the products of manufacture are finally packaged.
The manufacture of methylamphetamine is a complex and time consuming process. Production is often likely to be organised to take place over sufficient time to produce enough of the drug to defray expenses and generate sufficient profit to justify the obvious risks. In those circumstances, I would not limit the meaning of ‘manufacture’ in s 13 of the Controlled Substances Act 1984 to a particular chemical process of extraction or refinement or to the production of a single batch. The offence charged may comprise an isolated step but it might also encompass a continuous productive enterprise. On occasion, there may be a matter of fact and degree as to whether one process of manufacture has finished and another commenced. The source and composition of the raw materials, the times and places over which the production takes place and other considerations may lead to the conclusion that there has not been a single process of manufacture.
A similar approach has been adopted in New South Wales to charges of trafficking in drugs which comprise a number of transactions, together exceeding the prescribed quantity. In R v Hamzy Hunt CJ said:[11]
In my view, the Crown is entitled to plead in the one count a charge of supply where it intends to prove a number of individual acts of supply by the accused to different people and at different times, provided that those acts can fairly and properly be identified as part of the same criminal enterprise or the one criminal activity, but the trial court has power to direct the Crown either to elect or to separate the offences where the indictment would otherwise produce an unfairness to the accused. Where objection is taken to the indictment, the trial judge should apply common sense and decide what is fair in the circumstances.
(Citation omitted)
[11] R v Hamzy (1994) 74 A Crim R 341 at 348-9; see also Walsh v Tattersall (1996) 188 CLR 77 at 107 (Kirby J).
The evidence does show that the three packages in the single toolbox varied as to the purity and concentration of methylamphetamine. However, in my view, that evidence does not expose any latent duplicity. As I have explained, the process of manufacture prohibited by the Act is necessarily a continuous one. In this case, ephedrine was obtained by various processes of evaporation over a large number of glass panels and by the use of frypans. The conversion of ephedrine to methylamphetamine and the crystallisation of methylamphetamine after its production must have been undertaken in batches. The mere difference in purity of the packages does not reveal more than one manufacturing process. The St. Agnes house was let from very late in January. The police raided in early March. All three packages must have been produced in that period. In my view, the production of the three packages over a period of about a month, in the same location, using essentially the same equipment can properly be characterised as a single offence of manufacture within the meaning of that word in s 4 and s 13 of the Act.
There are additional reasons for dismissing this ground of appeal. No objection was taken before the commencement of the trial even though the finding of the three packages would have been apparent from witness statements provided before trial.[12] No objection was taken when the evidence was adduced. If objection had been taken, the information may have been amended to separate out the offence into separate counts[13] or to limit the count charged to one of the packages alone.[14] An information which is bad for duplicity or uncertainty is vitiated. That is not to say that any conviction resulting thereon is void. The existence of duplicity enlivens a discretionary power to quash the indictment or to move in arrest of judgment.[15] An appeal against a conviction on the ground of duplicity was thought to lay as of right,[16] but that may be limited to cases where the point is taken and ruled on. However, on appeal, the question is whether there has been a miscarriage of justice. In this case, the forensic issue would not have been any different if the objection had been taken at trial and a remedial order made. Nor is there any possibility of a different verdict if the packages had been charged separately. To the extent that the last two mentioned conclusions may be subject to any doubt, I would still hold that there has been no miscarriage of justice having regard to the decision at trial not to take the point.
[12] Johnson v Miller (1937) 59 CLR 467 at 492.
[13] Ayles v The Queen (2007) 97 SASR 78; Ayles v The Queen (2008) 232 CLR 410.
[14] Walsh v Tattersall (1996) 188 CLR 77.
[15] H D Roome and R E Ross (eds), Archbold’s Criminal Pleading Evidence & Practice (Sweet and Maxwell, 25th ed, 1918) at 98 – 100.
[16] H D Roome and R E Ross (eds), Archbold’s Criminal Pleading Evidence & Practice (Sweet and Maxwell, 25th ed, 1918) at 321.
Unreasonable – Cannot be Supported by the Evidence
The appellant complains that the conviction is unsafe. I take that complaint to be a complaint that the conviction was unreasonable and can not be supported by the evidence. The verdicts of the jury suggest that the presence of the appellant in the Richmond house was a significant point of distinction in the prosecution case against each of the accused. In my view, the unanimous verdict of the jury shows a keen appreciation of the full implication of the circumstantial case brought against the appellant. For the reasons which I explain below, I too am left in no doubt about the appellant’s guilt. I am certainly not persuaded that the jury’s verdict is unreasonable or cannot be supported by the evidence.
In R v Nguyen,[17] the High Court reaffirmed the appropriate test on this ground of appeal in the terms stated by the majority in M v The Queen (M)[18] as follows:[19]
[17] R v Nguyen (2010) 85 ALJR 8.
[18] (1994) 181 CLR 487.
[19] R v Nguyen (2010) 85 ALJR 8 at [33].
The task of an appellate court in considering whether a verdict of guilty returned by a jury "should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence" was described by this Court in M. As four members of the Court pointed out in M, the conclusion that a verdict should be set aside on this basis is often expressed in terms of the verdict being "unsafe or unsatisfactory", "unjust or unsafe" or "dangerous or unsafe". The question for the appellate court is one of fact.
[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
As the plurality in M went on to point out:
But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
The authoritative guidance which this Court provided in M about the task of a court of criminal appeal was expressed in the following terms:
It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(Citations omitted)
It must be remembered that in M, the prosecution case depended on direct witness testimony. The test stated by the majority in M was again confirmed by the High Court in SKA v The Queen (SKA).[20] SKA also involved a conviction which relied largely on direct witness testimony.
[20] SKA v The Queen (2011) 85 ALJR 571.
In my respectful opinion, at least as the appeal provision is expressed in s 353 of the Criminal Law Consolidation Act 1935, it is difficult to see why a doubt entertained by a Court of Criminal Appeal, even in a largely circumstantial case, means, at least as a general rule, that a jury’s verdict is unreasonable. If it is accepted that reasonable minds may differ as to whether all rational hypotheses consistent with innocence have been excluded, it does not follow that a jury’s verdict is unreasonable simply because the judges constituting a Court of Criminal Appeal take a different view. If that approach were to be adopted, it would seem to give insufficient weight to the jury’s constitutional role and to, in effect, downgrade the trial before a jury to the first of two inquisitions into the offence. The importance of a jury of peers as a bulwark against the power of the State, and as a body with a sound collective understanding of the ways of the world, is well understood. However, as the difficulty in articulating any satisfactory elaboration of the concept of beyond reasonable doubt shows, there is both a factual, and evaluative, judgment involved in finding a charge proved beyond reasonable doubt. For all of these reasons, the verdict of a jury should not be transformed from a final adjudication of guilt to a provisional one.
That is not to deny the function of the Court of Criminal Appeal to interfere, where it appears to it, that, notwithstanding the respect which must be accorded to the jury’s adjudication of the facts, there remains an unacceptable risk that an innocent man has been convicted. It is an equally important function of the Court of Criminal Appeal to guard against a miscarriage of justice where the verdict is reasonable and amply supported by the evidence but there is reason to apprehend a miscarriage of justice because the jury may not have, in the circumstances of the trial, properly appreciated the inherent weaknesses of the prosecution case. Such a case most commonly arises where the jury has not properly been warned about the efficiencies of evidence which, in the experience of the courts, has proven to be dangerous. However, when a miscarriage of justice of that kind is apprehended, the proper order is that there be a retrial. The tendency to use the same expression “unsafe and unsatisfactory” both for verdicts which may be said to be unreasonable and for verdicts returned without proper instruction, has led, in my respectful opinion, to some conflation of the two, quite distinct, grounds on which a jury’s verdict can be impeached.
However, as I observed in R v Hore,[21] and particularly with the reaffirmation of the test of the majority in M, in Nguyen and in SKA, it is necessary to proceed on the basis that a doubt entertained by this Court will render the jury verdict unreasonable. Plainly this is a circumstantial case. The jury did not enjoy any advantage which is unavailable to this Court. Nonetheless, after examining the evidence for itself, this Court should, when considering whether the evidence has proved the offence, keep steadily in mind that the constitutional tribunal of fact was satisfied of the appellant’s guilt beyond reasonable doubt. The obligation of the Court of Appeal to have regard to the jury’s verdict, which in my view is implicitly required by the text and context of the standard form criminal appeal provision, is analogous to the responsibility of individual jurors to conscientiously consider the views of the other members of the jury before coming to a final conclusion.
[21] R v Hore [2010] SASCFC 60.
With the jury’s verdict in mind, I turn to the evidence. True it is that the evidence of the appellant’s presence in the St. Agnes house is established only by the evidence of the match between the appellant’s DNA and the DNA on the straw in the “McDonald’s” cup. However, the significance of that evidence must be assessed in its full factual context.
Several innocent hypotheses were propounded by the appellant for his presence at the St. Agnes house. Each must be rejected after a proper analysis. I start, however, by making the observation that there is no evidential foundation for any of them. The appellant, of course, carried no onus on the trial and the jury were properly directed not to draw any adverse inference from his failure to call evidence. However, the appellant on this appeal now carries the onus of demonstrating that the verdict of the jury was unreasonable. A person regularly convicted by a jury must necessarily find discharging the appellate onus more difficult when he or she ask the Court of Appeal to entertain doubts which are largely speculative and were, ex hypothesis, rejected by the jury.
In the written outline the appellant submitted that his only involvement with the manufacture at St. Agnes may have been to supply ephedrine for others who were undertaking the manufacturing process there. That submission was abandoned on the hearing of the appeal. Plainly, it is not an hypothesis consistent with innocence.
Alternatively, it was submitted that the appellant might have procured the ephedrine found at the Richmond house from those involved in the manufacture of the drug at St. Agnes. Even if I were to accept that hypothesis as a factual possibility, and I do not for the reasons appearing in [95] below, it is not one consistent with innocence. Assuming for these purposes that the containers with ephedrine which were found at the Richmond house had been at the St. Agnes house, their presence at the St. Agnes house must have been connected with the manufacture of methylamphetamine at that house. The removal of ephedrine solution, which was in excess of the requirements of the St. Agnes production, or which was sold as a by-product of that production, is nonetheless inextricably connected with the manufacture of methylamphetamine at St. Agnes. It is not unusual in lawful or unlawful manufacturing enterprises for there to be an associated trade in raw materials and by-products. Even though the purchasers of by-products from the operators of lawful industries might not be characterised as taking part in the primary manufacture, different considerations apply to the illicit manufacture of drugs. The disposal of by-products which, if discovered by police, might lead to the location of the illegal laboratory, is an important part in the continuing process of manufacture at that laboratory.
The appellant also submitted that there were two discrete manufacturing operations, one at St. Agnes and the other at Richmond. Even if that were so, that finding would not necessarily entail any doubt about the appellant’s criminal involvement with the St. Agnes laboratory; nor would it detract from the circumstantial weight of the Richmond house evidence.
In any event the evidence showed that the Richmond house did not have all the equipment necessary to manufacture methylamphetamine. Further, it is unlikely that it would have been selected by the appellant or an unknown third person for that purpose given its ownership and occupancy history. The product secreted in the Richmond house was most probably associated in some way with another production process.
In yet another alternative, it was suggested that the appellant’s involvement with the St. Agnes house, whatever it may have been, may have been preparatory to the manufacture of methylamphetamine and, accordingly, did not amount to an offence. That hypothesis, too, must be rejected. The manufacturing enterprise at St. Agnes had plainly proceeded well beyond preparation and had resulted in the manufacture of a substantial amount of finished product. The only question was whether the appellant had taken, either on his own account or jointly with others, a step in that process. Participation in a step in that process might arise in very many different ways. Helping to move the plant and chemicals into the St. Agnes house is participation in the process of manufacture which subsequently took place. Providing material support to the “chemists” involved in the production in the St. Agnes house would amount to participation. Acting as an assistant to any one of those “chemists”, even for a short period of time, is culpable participation. Certainly, supplying ephedrine, raw materials or pieces of equipment for that purpose would constitute the offence of participating.
An act of participation can, in some circumstances, be inferred from presence at the scene of an illicit drug laboratory. In the circumstances of this case, that inference is a strong one and the final possibility of innocence contended for by the appellant, which was that he was just visiting the St. Agnes house, is most improbable. The appellant could not have been “just visiting” an acquaintance, who was a resident, because there was no such resident. The appellant could only have known that an acquaintance of his was at the St. Agnes house if his acquaintance was involved in the manufacture of methylamphetamine at that house and had invited him to visit. Even though the appellant was residing in St. Agnes at the relevant time, it is unlikely that the appellant happened to see an acquaintance as he drove to, or from, his own home. The producers of methylamphetamine at the St. Agnes house were unlikely, in the extreme, to loiter in the front yard of the house in full view of neighbours and passers-by.
Importantly, it is unlikely that the appellant was invited to the St. Agnes house, or allowed in it, unless those involved in the manufacture believed they could trust him not to inform on them. Participants in a criminal enterprise of this type are unlikely to trust anyone but their co-participators. It follows that, in the absence of, on the face of the evidence, any probable innocent purpose for visiting the St. Agnes clandestine laboratory, it is a serious understatement of the evidence of the appellant’s presence to say that it showed “mere” presence. It is most improbable that whoever was responsible for the manufacture of amphetamine at the St. Agnes house would allow anyone, who was not also involved in the enterprise, anywhere near it. In this respect, the appellant’s residence in another house in St. Agnes over the same period of time that the laboratory was in production is significant because a participant in production of the scale undertaken in St. Agnes is very likely to take up residence nearby, both to facilitate access to, and maintain observation of, the house.
I pause here to mention that the appellant’s counsel at trial did not invite the jury to consider the possibility that the appellant had visited the St. Agnes house to enquire as to where he might source ephedrine for a manufacturing process of his own, which might account for both his DNA profile being on the straw and the presence of the ephedrine in the Richmond house in which he had slept. Nor was that possibility mentioned in this Court on appeal. In the ordinary course it might have been proper to call the matter back on to allow the Director of Public Prosecutions an opportunity to address that theoretical possibility. In the view that I have taken it is unnecessary to do so.
In my respectful opinion the possibility to which I have just referred is fanciful. The signal circumstance associated with the St. Agnes house is that, from the start of the tenancy, it was exclusively dedicated for the use as an illicit drug laboratory. It is a most unlikely venue for an industry workshop on sourcing raw materials. Indeed it may be doubted that the principals would disclose their source of a rare precursor to an outsider at all. The hypothesis advanced appears to be that the appellant knew the occupants of the St. Agnes laboratory and believed that they knew how to source ephedrine. Presumably when he asked them for their source they did not, as is most likely, deny any such knowledge, nor, as might have happened if they were more generously inclined, did they provide the requested information. Instead, on this hypothesis they invited him into the St. Agnes laboratory to further discuss his request. Alternatively, the hypothesis is, perhaps that, the appellant was invited to the St. Agnes laboratory after indicating only that he had an undisclosed topic to discuss with the occupier of the premises. I find these possibilities incredible and I am certainly not inclined to stretch the limits of my credulity when they were neither put to the jury nor advanced on the hearing of the appeal.
Nonetheless, and accepting for these purposes that the evidence of the appellant’s presence at the St. Agnes house is not sufficient to exclude the possibility of an innocent visit to it, it is necessary to consider the evidence relating to the Richmond house.
True it is that there is no direct evidence that the appellant handled the frypan or containers of ephedrine solution at the Richmond house. However, in my view, the evidence that the ephedrine was under his control is extremely strong. It will be remembered that the Richmond house was the appellant’s former matrimonial house. Plainly enough, on 5 March, the appellant’s wife was not living in the Richmond house. It is extremely unlikely that anyone other than the appellant was there on 5 March. It can be inferred that the appellant may have retained keys to the Richmond house after the marital breakdown.
Having regard to the agreed fact that he was evicted on the morning of 5 March by AK’s associates, it was unlikely that the ephedrine was the property of AK or her associates. It had considerable value and it is, therefore, unlikely that they left it behind in Richmond for the police, or anyone else, to find after the eviction of the appellant on 5 March. It will be remembered that it was an agreed fact that the circumstances in which he was removed from the premises gave rise to the involvement of police and that Mr Tartaglia was in fact arrested on 7 March 2008 and was remanded in custody.
Once the appellant’s wife, AK, and her associates, are excluded as likely owners of the ephedrine, the remaining possibility is that another person became aware that the Richmond house had been vacated and secretly used it to store the ephedrine. That person would, of course, be taking a great risk to store such valuable illicit substances on another person’s property. It is more likely that someone with some familiarity with the circumstances in which the house was vacated brought those substances into the Richmond house. In particular, only someone with that knowledge is likely to undertake the process of evaporation of the ephedrine solution by using the frypan found in the premises. Of course, there may have been other persons, apart from the appellant, who were sufficiently aware of the circumstances in which the house had become vacant and who may have had a ready means of access, such as keys, but the inference that it was the appellant is a strong one.
Once again, it is necessary to consider whether there is a possibility consistent with innocence for the appellant’s presence at the Richmond house contemporaneously with the containers of ephedrine. It was not his house, he resided in St. Agnes at that time. There was acrimony between him and AK. He could not have believed that he had her permission to be in the house. Indeed, a restraining order prohibited any contact between them. In those circumstances, the possibility advanced by the appellant’s counsel on the hearing of the appeal that the appellant had decided to sleep at Richmond after enjoying a late night out in the city is, at least, unlikely. If his presence was due to such an isolated random event it is surprising that he was there on the very morning that AK sent her associates to remove him.
Finally, it must be remembered that the substance found in the house on the same morning was ephedrine. The ephedrine found there and a few days later in the St. Agnes laboratory, was the first ephedrine seen by chemists in the Forensic Science Centre in 10 years. I acknowledge the possibility left open by the evidence that ephedrine is now more commonly used but the failure of the prosecution, and the appellant to put this to Mr Painter leaves that possibility largely speculative. The fact remains that as at the time of the discovery of the ephedrine in the St. Agnes and Richmond houses its use as a precursor was rare.
The presence of the appellant in the Richmond house in which the same precursor was located has probative value precisely because of the improbability that the appellant’s proximity to that rare precursor on two occasions within a period of about a month was unrelated. The evidence of the appellant’s presence in the Richmond house and the St. Agnes laboratory are not separate links in a chain which might, on occasion, be said to be indispensible steps in a finding of guilt. They are strands of a circumstantial case which reinforce each other.
The distinction between chain and rope type circumstantial cases does not depend at all on the number of items of circumstantial evidence but on the causal relationship, if any, between those items. The distinction can be simply illustrated by postulating an offence of assault with a weapon. A weapon might be connected to the accused by a set of circumstances like fingerprints, DNA profiling, previous possession or traces of the weapon left on the accused. Any two or more of those items would operate circumstantially as strands which reinforced one another. However, those circumstances do not advance proof of the crime very far unless the weapon connected to the accused is found to be the weapon which inflicted the harm. The weapon might be so connected by another set of circumstances, including blood staining, a match between the shape of the wound and the weapon, or location of the weapon at the scene of the crime. Any two or more of those items would also operate as strands of circumstantial evidence to connect the weapon to the assault. However, to convict the accused, the accused’s connection to the weapon and the weapon’s connection to the wound operate circumstantially as links in a chain, and must be proved beyond reasonable doubt. At the risk of losing the simplicity of the example, it is nonetheless important to make the point that evidence of motive could operate circumstantially so that the appellant’s connection with the weapon might also become evidence which, together with other connecting evidence, proves that it was the weapon used to commit the offence.
The items of evidence which connect the appellant to each house operate as circumstantial strands which criminally associate the appellant with the ephedrine in both houses through the medium of coincidence explained by Wells J in the passage from Sutton which I have cited. For that reason the nature of the appellant’s association with the ephedrine in both houses can not sensibly be considered and determined by compartmentalising the evidence. Let it be assumed that the appellant’s possession of the ephedrine in the Richmond house must be proved beyond reasonable doubt before the Richmond house evidence can be used as evidence that he took part in the production of amphetamine at St. Agnes. The evidence that the appellant had visited the St. Agnes laboratory must still be considered in determining whether or not he possessed the ephedrine at the Richmond house. That reasoning is not circular and does not assume guilt. It is inductive reasoning which proceeds from the application of human experience to known facts and circumstances.
The reasonable possibility consistent with innocence on which the appellant must rely, with respect to the conjunction of his presence at both houses, is that he innocently visited acquaintances engaged in the manufacture of methylamphetamine at St. Agnes in the days or weeks before he slept over at the Richmond house, which he was not entitled to use, at the same time that the Richmond house was being used to store the same rare precursor found at the St. Agnes house.
The prosecution’s circumstantial case against the appellant was based on the improbability that:
·the St. Agnes entrepreneurs would invite someone unconnected with their drug production into the St. Agnes house;
·acquaintances of the appellant would establish a drug laboratory in a rented house, at about the same time that he established a residence in the same suburb as the laboratory, unless he was also involved;
·persons unrelated to the appellant would put their ephedrine out of their control by storing it at the Richmond house at the same time that the appellant stayed over in it;
·a person unrelated to the St. Agnes house would use the vacant Richmond house to store and process the same rare precursor used in the St. Agnes laboratory;
·in the alternative to the last mentioned circumstance, that those involved in the St. Agnes laboratory would use the appellant’s former matrimonial home to store ephedrine in solution on the same night the appellant was sleeping in it, unless the appellant was culpably involved in the manufacture in St. Agnes;
·the appellant would stay overnight at the Richmond house against the owner’s wishes simply because it was too a late to return to his own home.
In my view, the jury rightly concluded that the improbabilities to which I have just referred compounded to deny any possibility that the appellant’s association with the ephedrine at the Richmond house and the laboratory at St. Agnes was an innocent one.
It is no answer to the conclusion demanded by the concatenation of factual circumstances I have summarised to point to the available innocent inferences if anyone or more of them had stood alone. I need only refer to the passage of Wells J in Sutton cited above. The same combination of circumstances persuade me that it is not reasonably possible that the appellant was given, or sold, the ephedrine found at the Richmond house unless he was culpably involved in the manufacture of methylamphetamine at the St. Agnes house.
Notwithstanding the factual conclusion I have reached it is necessary to make several comments about the decisions of this Court referred to by Peek J. It is trite but deserving of repetition, to make the point that a conclusion that a jury verdict is unreasonable is a question of fact, not law. It follows that the decisions referred to by Peek J are therefore not, in any relevant sense, authorities. It would, in my respectful opinion, be productive of both wasted effort and error, to determine the unreasonableness of a verdict by reference to the facts and decisions of other cases. To illustrate, I hope, the lack of assistance yielded by the process of comparing factual findings, I make the following observations about those decisions.
In R v Dimitropoulos[22] the charge was receiving and the point emphasised in the reasons of King CJ was that a fingerprint on the engine of a car, in the garage of the house adjoining Dimitropoulos’ house, which belonged to his brother-in-law, did not go far in proving possession of the car by Dimitropoulos. The charge here is taking part in the manufacture of a drug and the use of equipment, or assisting others in that use, not possession, is the element in question. In R v Arrol[23] Arrol testified and gave evidence of an innocent explanation for the presence of his fingerprint on the plastic bag of cannabis. In R v Anderson[24] the unit in which Anderson was found was occupied by others as a residence. The presence of methylamphetamine under Anderson’s fingernails was not as significant as it might have been because no methylamphetamine had been produced in the unit; the production had not gone past the extraction process. In none of the cases was there any evidence similar to the Richmond house evidence. Of course, any debate about the factual significance of these distinctions merely serves to emphasise the problematic and collateral nature of the exercise. Even if there were no distinguishing circumstances, and thankfully such is the rich variety of circumstances in the real world that there always will be, I am not bound by any factual conclusion reached in another case.
[22] Unreported, Court of Criminal Appeal, 18 September 1992, judgment no S3625.
[23] [1999] SASC 293.
[24] [2004] SASC 201.
The decisions referred to by Peek J do not give me cause to review my conclusion.
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.
PEEK J. 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 VOTTARI
are charged with the following Offences
First Count
Statement of Offence
Trafficking in a Large Commercial Quantity of a Controlled Drug. (Section 32(1) of the Controlled Substances Act, 1984).
Particulars of Offence
Antonio 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 Count
Statement of Offence
Manufacturing a Large Commercial Quantity of a Controlled Drug for Sale. (Section 33(1) of the Controlled Substances Act, 1984).
Particulars of Offence
Antonio 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.
As another example, one may refer to the following further passage in Mr Painter’s evidence in the present case:
Q:Now, in relation to ephedrine and pseudoephedrine, are those chemicals freely available?
A:There are restrictions placed on those chemicals. For example, pseudoephedrine is found in cold and flu-type tablets. Recently there’s been changes that you need a prescription to obtain these tablets. So there are restrictions placed on ephedrine and pseudoephedrine.
When one looks into the background of those changes, one finds that the Controlled Substances Act 1984 (SA) was amended by the Controlled Substances (Serious Drug Offences) Amendment Act 2005 (No 80 of 2005) to include precursors (including ephedrine and pseudoephedrine) as controlled substances, such amendment coming into operation on 3 December 2007. This change in the law shortly before the operations at the St Agnes and Richmond houses in February 2008 may well be relevant to a general change in illicit usage from pseudoephedrine (which hitherto had been available lawfully and without limit in various medications) to ephedrine. One does not know why such changes may have prompted a movement from pseudoephedrine to ephedrine (both being illicit) but possibilities are not difficult to imagine: if previous easy access to pseudoephedrine contained in tablets were altered, a replacement strategy may have centred on ephedrine for reasons best known to those in the criminal milieu.
Causes associated with the appellant
The second category of reasons for the usage of ephedrine at both houses consists of causes associated with the appellant but not entailing his participation in a manufacturing enterprise at the St Agnes house.
In this regard, it is helpful to consider the alleged association between the appellant and the Richmond house. However, in doing so, one should not start with any assumption that the appellant was taking part in the enterprise at the St Agnes house, for that is the very matter to be proven. Nor should we assume that he was experienced in manufacturing methylamphetamine for there is no evidence of that other than that which might be inferred if one assumed proof of the commission of the offence charged against him.
If, for whatever reason, the appellant wished to manufacture methylamphetamine at the Richmond house, he may well have needed assistance and advice as to how to do it. In this regard, he would ex hypothesi have needed to approach people involved in manufacturing methylamphetamine and he may have moved in circles where he was able to be introduced to such a person. Such acquaintanceship with criminals may be disreputable but does not constitute proof of the present charge.
In those circumstances, he may have visited the St Agnes house for a number of reasons, none of which do him any credit but nor do they constitute participation in the manufacturing enterprise at the St Agnes house. Thus he may have visited the St Agnes house to:
·seek general advice as to manufacturing methylamphetamine;
·view the process of manufacturing methylamphetamine; or
·obtain information as to suppliers of material.
Obviously, if the enterprise at St Agnes house was using ephedrine, it would not be particularly surprising that he might decide to use it. Again, if the St Agnes house had a supplier of material containing ephedrine (as it must have), the appellant may well have decided to use the same supplier for an enterprise at the Richmond house. Alternatively, those at the St Agnes house may have in fact resold unused material containing ephedrine to the appellant (no doubt at a profit). No doubt, this is all unlawful conduct on the part of all concerned, but such possibilities are hardly unrealistic and none of them would constitute the appellant taking part in the manufacturing enterprise at the St Agnes house as distinct from any enterprise at the Richmond house.
An unreasonable or unsafe and unsatisfactory verdict?
Although various statements have been made in judgments of the High Court as to the correct approach to provisions equivalent to s 352 of the Criminal Law Consolidation Act 1935 (SA), I take the decision in M v The Queen[34] together with the recent decisions in The Queen v Nguyen[35] and SKA v The Queen[36] as binding authority for the proposition favourable to an appellant, that a doubt entertained by this Court will render the guilty verdict unreasonable.
[34] (1994) 181 CLR 487.
[35] (2010) 85 ALJR 8.
[36] (2011) 85 ALJR 571.
In the present case it was not suggested that there was any evidence of identification, or admissions or any independently established lie evincing a consciousness of guilt. There can be no demeanour findings against the appellant since he did not give evidence. In the circumstances of the present case which relies on an analysis of circumstantial evidence, the jury had no advantage over this Court: the matter is pre-eminently a matter of correct analysis as to what inference may be safely drawn from the proven facts as distinct from the resolution of a dispute as to the existence of those facts.
Where, as here, the case rests upon circumstantial evidence, a verdict of guilty cannot be returned unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused” and the guilt of the accused must be “the only rational inference that the circumstances would enable them to draw”.[37] Further, it is important to emphasise that it is not for the accused to establish particular facts that would tend to support such an inference. Thus in Barca v The Queen[38] Gibbs, Stephen and Mason JJ stated:[39]
… although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted.
[37] Peacock v The King (1911) 13 CLR 619, Plomp v The Queen (1963) 110 CLR 234, Barca v The Queen (1975) 133 CLR 82, Chamberlain v The Queen (No 2) (1984) 153 CLR 521.
[38] (1975) 133 CLR 82.
[39] Ibid 104-105.
Although, as stated above, the test of whether the verdict is “unreasonable” ultimately turns on whether this Court of Criminal Appeal holds a doubt as to the guilt of the appellant of the particular offence of which he has been convicted, it is nevertheless helpful to refer briefly to some Court of Criminal Appeal decisions in similar or analogous cases.
The case of R v Dimitropoulos[40] resembles the present case with fingerprint evidence there corresponding to the DNA sample on the drinking straw in the present case. The appellant was charged jointly with his brother-in-law, Ghinis, with two counts of larceny of two motor vehicles (a blue Commodore and a red Commodore) and two alternative counts of receiving them. Ghinis pleaded guilty to both counts of receiving and was acquitted of the larceny charges. The appellant was convicted only of the count of receiving the red Commodore. Both vehicles were stolen on the night of 23 June 1990 and the following night police discovered the blue Commodore in Ghinis’ garage and, on the floor nearby, the engine of the red Commodore. The police discovered, on the rocker cover of the red Commodore engine, the appellant’s left thumb print and the right middle fingerprint. When interviewed by the police, he denied all knowledge of the vehicles and said that he had been watching TV throughout the night. However, at trial the appellant gave evidence and attempted to explain the fingerprints on the basis that while he was passing near Ghinis’ garage he heard some noises and went in to discover Ghinis and two other persons stripping the red Commodore; he looked at the Commodore, handled the engine and passed to Ghinis a spanner at his request. He said that he realised that the vehicle and the engine were stolen and left the garage.
[40] Unreported, Court of Criminal Appeal, 18 September 1992, judgment no S3625.
It is to be noted that, first, the fingerprint was found directly on the vehicle the subject of the conviction; second, on the appellant’s own evidence, he had lied to the police throughout; and third, that the jury positively rejected his evidence. Nevertheless the Court of Criminal Appeal found that the jury’s verdict was unreasonable and substituted a verdict of acquittal. King CJ (with whom Olsson and Mullighan JJ concurred) stated:[41]
The only incriminating evidence was the presence of the appellant’s fingerprints on the engine. Miss Abraham, who has appeared before us, has argued that that evidence is sufficient to support the convictions for receiving, and she placed particular stress on the fact that a fingerprint from both hands was discovered on the engine and that the proper inference from that is that the appellant did more than he admits to and was actually engaged in the stripping operation, that is to say, in the removal of the engine. She also drew attention to what turned out to be the false statement to the police that he had been watching television throughout the night.
In the circumstances of this case I do not think that the false statement to the police has any real significance. A false statement can only be probative of guilt if it tends to indicate some consciousness on the part of the accused of guilt and a willingness to lie by reason of that consciousness of guilt. I think that in the present case it would be unreasonable to draw that inference.
Clearly the appellant knew that the vehicles were stolen. He also knew that his brother was in some way involved in the matter and that the vehicle was in the garage belonging to his brother-in-law. In those circumstances there were obvious motives for concealing the fact that he had actually seen the vehicles there and had seen the persons concerned in stripping the red Commodore and there were also obvious motives why he would want to distance himself from the events in the garage. If that false statement is discarded as not bearing an incriminating character, the prosecution is left with the presence of the fingerprints on the engine.
I think that the presence of the fingerprints on the engine, in the circumstances that the engine was in the garage belonging to the appellant’s brother-in-law in the house which was adjoining his own house, is equivocal. There are many ways in which the next door neighbour, being the brother-in-law of the occupant of the garage, namely, the appellant, might come to place his fingerprints upon an engine in his brother-in-law’s garage. There are many such ways in which that could occur which could be quite consistent with his never having taken the vehicle into his possession and therefore never having received it.
The appellant gave an explanation on oath. Miss Abraham has argued that it is incredible, but I don’t think that it strains credulity that he may have observed some activity in the garage, visited the people who were engaged in the activity and handled the motor without ever having taken it into his possession. But even if the explanation given by the appellant is not accepted the fact upon which the prosecution relies, namely, the presence of the fingerprints, remains equivocal.
In my opinion, a verdict of guilty of receiving, based upon such slender evidence, is unsafe and unsatisfactory and the verdict can be characterised as being unreasonable or one that cannot be supported having regard to the evidence. That being my view, it is unnecessary to consider the other ground of appeal, namely, that the judge should have upheld the submission of no case to answer. In my opinion, the appeal should be allowed. The conviction should be set aside and there should be substituted therefore a verdict and judgment of acquittal. The order is: appeal allowed, conviction set aside. In lieu thereof, verdict and judgment of acquittal.
[41] Ibid 2-4.
In the later case of R v Arrol[42] the appellant was charged with taking part in the sale of cannabis contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA). There was evidence that during the relevant period he resided with his mother at 33 Koongarra Crescent, Munno Para on whose telephone service a call was made to a mobile phone service number 0417 737 034 which was leased to one Michael Patrick O’Neil of 9 Brett Avenue, Browns Plains, Queensland. There was evidence that the appellant had known a Michael O’Neil from when he worked as a crowd controller at hotels in Adelaide in 1996 and that in 1997 he had again seen Mr O’Neil in Queensland when he had travelled there. Seven days after that telephone call, on 14 November 1997, an unidentified person left a bag at the Franklin Street Bus Depot for consignment to one “M O’Neil” in Queensland. The bag was later seized by police and inside were plastic vacuum sealed bags containing cannabis. A fingerprint was located on the outside of one of them which matched the appellant’s right middle finger. The appellant attempted to explain the fingerprint by giving evidence that he was a regular smoker and purchaser of cannabis and, in doing so, handled plastic bags when inspecting cannabis, some bags being left with the vendors and possibly with his fingerprints on them.
[42] [1999] SASC 293.
Again, it is to be noted that first, the fingerprint was found directly on the item the subject of the conviction and second, the jury positively rejected the appellant’s evidence. There was no suggestion of misdirection or other error but again, the Court of Criminal Appeal found that the jury’s verdict was unreasonable and substituted a verdict of acquittal. Wicks J, with whom Doyle CJ agreed, considered that the verdict of the jury was unsafe and unsatisfactory. Duggan J agreed and stated:
[3]The fact that the appellant’s fingerprint was found on the outside of one of the bags, the fact that the appellant knew a Michael O’Neil whom he met in Queensland and the fact that a telephone call had been made to a mobile phone service leased to a Michael Patrick O’Neil from the home of the appellant’s mother seven days before the consignment of the drugs, were all matters which were appropriate to take into account in determining whether the prosecution proved its case. It was the function of the jury to consider these items of evidence in their combined effect. However when the evidence is considered in this manner it cannot be said that the only rational inference to be drawn from it is the guilt of the appellant.
The final Court of Criminal Appeal decision to which I refer is R v Anderson[43] which resembles the present case factually and involves the same charge. The facts were that police attended at a unit leased to, and occupied by, the co-accused Elsayed. When the police entered, four men were sitting around the kitchen table including the appellant. Searches revealed numerous items commonly associated with the clandestine production of amphetamines including ethanol, pseudoephedrine, paracetamol, chemical glassware, filter papers, a tin with iodine stains, a bottle of methylated spirits and a gas bottle and burner suitable for use in the manufacture of methylamphetamine. Significantly, on the kitchen table near the appellant, police also found a red folder which contained a number of documents with information on the preparation of a variety of illicit substances including the manufacture of methylamphetamine, and more particularly its manufacture from tablets such as Sudafed. Elsewhere in the house, police located other chemistry books and nine empty packets of Sudafed, together with 24 empty blister packs.
[43] [2004] SASC 201.
In the main bedroom, the police found a silver case containing a pair of rubber latex gloves. On the inside of the left hand glove there was found a mixture of DNA from four individuals. The DNA was not attributable to any of the persons in the house at the time of the police raid, with the possible exception of the appellant. It was found that the DNA profile from the gloves was 85,000 times more likely to match the DNA profile of the appellant if he had left the DNA, than of any other unknown person who might have left it. However Mr Carroll, the expert witness from Forensic Science Centre stated that there were only four loci out of ten from which a result could be obtained and that, in his view, the most that could be said was that the appellant could not be excluded as the source of the DNA.
Traces of methylamphetamine were found under the appellant’s fingernails and that of others in the house and there were small quantities of methylamphetamine in two small plastic bags found in a lean-to at the rear of the premises. Once again, there was no misdirection or other error established but the Court of Criminal Appeal found that the jury’s verdict was unreasonable and substituted a verdict of acquittal. Perry J, with whom Doyle CJ and White JJ agreed, stated:
[51]The appellant’s presence at the house and the fact that he was sitting at the kitchen table when the police arrived, coupled with the traces of methylamphetamine found under his fingernails, the evidence of equipment and materials that could be used to extract pseudoephedrine, and information about the process of manufacturing methylamphetamine, was not in combination a sufficiently cogent evidentiary basis to justify a conclusion that guilt had been established beyond reasonable doubt. In the end, there was really nothing to link the appellant to the chemical process that was underway, or to the equipment and information, other than his bare presence in the kitchen and the methylamphetamine under his fingernails, indicating some contact with methylamphetamine and possibly an interest in obtaining some.
[52]Perhaps the strongest item of evidence against the appellant was the presence of DNA in one of the gloves, but as I have said, there were only four loci out of ten from which a result could be obtained. The fact that the appellant could not be excluded as the source of the DNA is not sufficient, considered in the context of the evidence as a whole, to support a finding of guilt.
[53]In my view, on the whole of the evidence, it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant.
(Emphasis added)
In order to forestall any confusion, I pause to mention what may be entirely obvious, namely that in R v Anderson there was some DNA evidence which was more “equivocal” in one sense than in the present case; however, that is in no way a point of distinction because there the presence of the accused at the house (with other highly incriminating items in his proximity) was directly proven by the observations of the police without having to rely on any inference drawn from a DNA sample (however reliable) as in the present case. It is that direct proof which is to be compared with the circumstantial proof in the present case which is by way of an inference of presence drawn from the DNA sample on the drinking straw.
In R v Anderson, the DNA sample really went to a matter quite different than the proof of presence; it potentially provided direct evidence of the accused actually taking part in the process of manufacture through the wearing of the glove used in the course of actual handling of chemicals during that manufacture. However, as noted in the reasons of Perry J, the Court hesitated to rely upon the DNA evidence for this purpose on the basis that the evidence of a “match” was insufficiently strong.
A point to be emphasised about the present case is that while the DNA evidence may not be equivocal on the limited issue of whether the appellant deposited the sample of DNA on the drinking straw, the inference to be drawn from the evidence (no matter how strong and definite the DNA “match” may be) cannot rise above showing mere presence at an unknown time, in unknown circumstances. Such evidence is far and away more equivocal than the direct police evidence of the actual presence of the accused at the house with highly incriminating items in R v Anderson or the direct linkage through the fingerprint on the subject of the receiving charge in R v Dimitropoulos or the strong direct linkage between the accused and the drugs the subject of the charge by virtue of both the fingerprint on the packaging and the connections between the accused and the consignee (including the telephone call), in R v Arrol.
Finally, to illustrate that there is nothing new in the approach taken in the above cases, I refer to two interesting period pieces.
The first is the South Australian case of R v Smith[44] in 1883 where the appellant had been convicted of burglariously entering a dwelling house with intent to commit a felony, namely rape. The appellant had broken and entered the house via a window of the complainant’s room and sat on her bed. On becoming aware of his presence she screamed whereupon the appellant fled. The complainant had previously been introduced to the appellant but she had refused to go out with him. The question was whether, on those proven facts, a case to answer had been established. The argument of the Attorney-General was that “the prisoner entered the house unlawfully, and the question was what were his intentions, and that was a question for the jury.” Way CJ in delivering the judgment of the Court stated:[45]
Intent must be gathered from acts; and, after careful consideration, we have arrived at the conclusion (and the learned Judge who tried the case, although at first impressed with the weight of the Crown Solicitor’s argument, now agrees with the other members of the Court) that the prisoner was there or might have been there for one of two purposes – both immoral – the one criminal and the other not so. But there is nothing to show that he went there with intent to commit anything criminal, and we are therefore of opinion that the conviction must be reversed and the prisoner discharged.
[44] (1883) 17 SALR 47.
[45] Ibid. Modern counterparts may well be decisions such as Knight v The Queen (1992) 175 CLR 495 and Cutter v The Queen (1997) 71 ALJR 638.
The second is a 1924 judgment of Lord Hewart CJ[46] whose words have lost none of their resonance over the long years since:[47]
It is so easy to derive from a series of unsatisfactory accusations, if there are enough of them, an accusation which at least appears satisfactory. It is so easy to collect from a mass of ingredients, not one of which is sufficient, a totality which will appear to contain what is missing. That of course is only another way of saying that when a person is dealing with a considerable mass of facts, in particular if those facts are of such a nature as to invite reprobation, nothing is easier than confusion of mind; and, therefore, if such charges are to be brought in a mass, it becomes essential that the method upon which guilt is to be ascertained should be stated with punctilious exactness.
[46] R v Bailey [1924] 2 KB 300.
[47] Ibid 305.
Conclusion as to ground 5 of appeal
Having carefully considered the whole of the evidence in the case, I am firmly of the view, and find, that the verdict of the jury is unreasonable in the sense that the evidence adduced was insufficient to prove the charge beyond reasonable doubt. The appellant succeeds on ground 5 of appeal.
The admissibility of the evidence in relation to the Richmond house and his Honour’s directions to the jury
In the light of my above conclusion, it is strictly unnecessary to consider the other grounds of appeal and I will do so only briefly. In my view, the evidence of the items found at the Richmond house was inadmissible or, in the alternative, should have been excluded in the exercise of discretion on the basis that the prejudicial effect of the evidence outweighed any probative value.
The learned trial Judge did not give reasons for his ruling. Often the basis upon which evidence was admitted may be derived from his Honour’s directions to the jury but I must say, with respect, that here they are somewhat confusing. His Honour initially stated (referring to the finding of the various items at the Richmond house):[48]
[55]… The prosecution relies upon the finding of those substances. It asks you to infer, from the circumstances I have outlined, that the accused, Tartaglia, was the occupier of the premises at Bignell Street [the Richmond house] in March 2008 and that he was in possession of the various items to which I have just referred and that his possession of those items shows that he had an interest in extracting methylamphetamine from ephedrine using the same process and chemicals as had been used in the secret laboratory at 50 Whiting Road [the St Agnes house].
(Words in parenthesis inserted)
[48] Summing up, 8.
A little later in the summing up his Honour stated:[49]
[68]… you may use the evidence of what was found at 6 Bignell Street [the Richmond house], if you accept it, as evidence that Tartaglia was interested in and knew about the process for the manufacture of methylamphetamine which had been used at Whiting Road [the St Agnes house].
(Words in parenthesis inserted)
[49] Ibid 9-10.
Later, His Honour stated:[50]
[74]… [T]he prosecution, in Mr Tartaglia’s case, asks you to look at what the prosecution submits, is his knowledge of and interest in the manufacture of methylamphetamine from ephedrine.
[50] Ibid 10.
With respect, there are several problems with these directions. First, his Honour’s directions are misconceived in referring to “extracting methylamphetamine from ephedrine”; this is an incorrect exposition of the expert evidence as to the manufacture of methylamphetamine that was given in the case. The directions are also in error in postulating a common process adopted at both houses when in fact the process used at the St Agnes house was the “red phosphorous procedure” while the process apparently attempted at the Richmond house was the markedly different “hypophosphorous acid procedure” (police found some hypophosphorous acid but no iodine or red phosphorous).
Second, a mere “interest” in the manufacture of methylamphetamine was, in the circumstances of the present case, an insufficient basis for the admission of this evidence. In any event, it is highly doubtful that the evidence could justify any finding that the appellant was occupying the Richmond house or had knowledge of the items there present, let alone had a familiarity with a process of manufacture that might be inferred from the presence of those items. This was particularly so when most of the required chemicals and hardware were in fact absent from the Richmond house.
Third, while his Honour probably had in mind the common factor of the use of ephedrine rather than pseudoephedrine, this is not made clear to the jury in the above passages and there are no other relevant references in the summing up. His Honour at no stage refers in the summing up to Mr Painter’s evidence of rarity or any argument based thereon. Even if the admission of the evidence could theoretically have been justified by a process of “improbability reasoning” based on the use of ephedrine rather than pseudoephedrine, the verdict would have to be set aside on the basis of the inadequacy of the directions to the jury.
Fourth, another aspect of the inadequacy of the directions that were given is that, in the circumstances of the present case, if the evidence were to be admitted, it would have been necessary to direct the jury that they could not use the Richmond house evidence against the appellant unless they were satisfied beyond reasonable doubt that he was knowingly involved in the manufacture of methylamphetamine at that address. I have had the benefit of reading the draft judgment of Sulan J and respectfully endorse his Honour’s remarks in this regard.
However, as stated above, I consider that the Richmond house evidence was inadmissible. The admission of the evidence could not have been justified by a process of “improbability reasoning” based on the use of ephedrine rather than pseudoephedrine. In the circumstances of the present case, the evidence was required to satisfy the test in Pfennig v The Queen[51] and could not do so. Indeed, in my view, nor could it comply with the requirement in earlier authorities such as Markby v The Queen,[52] Perry v The Queen[53] and Sutton v The Queen[54] that the evidence possess strong probative force such as to transcend the prejudicial effect of the evidence.
[51] (1995) 182 CLR 461.
[52] (1978) 140 CLR 108.
[53] (1982) 150 CLR 580.
[54] (1984) 152 CLR 528.
Conclusion as to disposition of the appeal
I have found that the verdict of the jury is unreasonable in the sense that the evidence adduced was insufficient to prove the charge beyond reasonable doubt. In such circumstances the conviction should be set aside and a verdict of acquittal ordered.[55]
[55] Reid v The Queen [1980] AC 343; Andrews v The Queen (1968) 126 CLR 198; Gerakiteys v The Queen (1983) 153 CLR 317; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627.
The case was left to the jury on the basis that they should first consider count 2 and only proceed to consider count 1 if they acquitted on count 2. I also note that the learned trial Judge strongly advised the jury that if they acquitted on count 2 they should also acquit on count 1, although not directing them as a matter of law that they were required to do so. Accordingly, although no verdict was taken on count 1, the decisions in favour of the appellant to which I have come in relation to the evidence and the issues at the trial would equally apply to the charge in count 1. The consequence is that it would be inappropriate for the appellant to be retried on count 1.
Orders
I would propose the following orders:
1. Allow the appeal and quash the conviction on count 2.
2. Direct that a judgment and verdict of acquittal be entered on count 2.
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