R v Thomas - [2005] SASC 268

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v THOMAS
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Duggan and The Honourable Justice Sulan)
22 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE
Appeal against conviction - appellant convicted by jury of possessing methylamphetamine for sale and taking part in the manufacture of methylamphetamine - charges arose out of police raids conducted simultaneously at business premises occupied by the appellant at Uraidla and at a house at Skye where the appellant lived - charge of possession of methylamphetamine for sale was based upon the seizure of three quantities of methylamphetamine found at three separate locations in the office area of the Uraidla workshop - other incriminating evidence relating to the charges was found at the Uraidla business premises and at the Skye house - whether trial judge misdirected the jury as to content of defence counsel submissions effectively withdrawing appellant's defence - whether trial judge erred by failing to direct the jury that they had to be satisfied beyond reasonable doubt that the appellant had extracted pseudoephedrine for the purpose of using it to make methylamphetamine and as part of that manufacture - held that the trial judge correctly directed the jury - appeal against conviction dismissed.
Controlled Substances Act 1984 s 32(1)(b) and s 32(4), referred to.
R v Thomas (1993) 67 A Crim R 308; Re Avory: Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392, considered.

R v THOMAS
[2005] SASC 268
Court of Criminal Appeal: Perry, Duggan and Sulan JJ

PERRY J. The appellant appeals against his conviction in the District Court on charges of possessing methylamphetamine for sale (count 1) and taking part in the manufacture of methylamphetamine (count 2).
He was acquitted on a third count of unlawful possession of cash amounting to $1,330.
The charges arose out of police raids conducted simultaneously on the morning of 28 May 2003 at business premises occupied by the appellant at 3A Willsmore Place, Uraidla, and a house at 43 Coach Road, Skye.
The appellant conducted a motor repair business at the Uraidla premises in the name “Hills Performance”. He lived at the premises at Skye with his partner, Natasha Summerell.
The charge of possession of methylamphetamine for sale was based upon the seizure of three quantities of methylamphetamine found at three separate locations in the office area of the Uraidla workshop. Bags in which the drug was found, contained a total weight of powder of 21.02 grams, of which 12.24 grams was methylamphetamine.
Other incriminating items relating to all three charges were found at the Uraidla premises and the house at Skye. They were:
Uraidla
oa set of electronic scales upon which were found traces of methylamphetamine;
o210 unpackaged tablets containing pseudoephedrine;
oa bag containing a quantity of pseudoephedrine hydrochloride and Triprolidine;[1]
oGlucodin, commonly used as a cutting agent for methylamphetamine;
oa number of small press-seal plastic bags of a size commonly used for the packaging of methylamphetamine for sale;
oempty blister packs for Sudafed and Telfast;
othree test tubes;
oa heating tray;
oprinted material detailing chemical processes commonly used for the clandestine production of methylamphetamine;[2]
ocash amounting to $1,330 found in the appellant’s pocket, together with a press-seal plastic bag.
[1] Triprolidine is commonly found in commercial preparations containing pseudoephedrine.
[2] It was the Crown case that the method used for the manufacture of the methylamphetamine the subject of the second count was amongst the methods described in the printed material.
Skye
oa box which had contained paper filters for a coffee machine, in which had been placed ten empty blister packs of pharmaceutical preparations containing pseudoephedrine. The blister packs had contained 210 tablets (the same number as the tablets found at Uraidla);
oa bundle of empty press-seal plastic bags;
ofive press-seal plastic bags found to contain traces of methylamphetamine;
oa measuring glass and a condenser;
oa gas burner and hose;
oa box of coffee filters;
oa number of blister packs of tablets containing pseudoephedrine;
oa box in which were found glass and rubber stoppers containing traces of methylamphetamine;
oa set of digital scales;
ofour plastic containers and a glass container, in which had been placed coffee filter papers; four of the papers contained residues of pseudoephedrine and Triprolidine;[3]
oa container of acetone, in which was found traces of pseudoephedrine.
[3] Those residues and other material found in the coffee filter papers were consistent with their use for the extraction of pseudoephedrine.
As to the charge of taking part in the manufacture of methylamphetamine, the Crown case was that the appellant had either participated directly, or had provided the premises in which the process of manufacture had taken place.
Apart from police officers who had taken part in the two raids, the Crown called two expert witnesses with experience in the clandestine production of drugs, including methylamphetamine. They were Dr Pigou, a forensic scientist, and Detective Senior Constable Brain, an officer attached to the Drug and Authorised Crime Branch of the police force.
The expert evidence
Dr Pigou, whose qualifications were not challenged, explained to the jury how methylamphetamine might be manufactured from commercially prepared medication. He explained that certain decongestants or nasal medication such as Sudafed, which may be purchased without prescription over the counter of pharmacies, contain pseudoephedrine as well as a number of inactive components.
The first step in the manufacture of methylamphetamine from such tablets is to extract the pseudoephedrine from the tablets.
In order to do so, it is common practice to grind the tablets into a powder, which is then mixed with methylated spirits, which is a solvent for pseudoephedrine. When the ground tablets are mixed with the methylated spirits, the pseudoephedrine is taken into the solution, but most of the other components of the tablets remain as solids.
The methylated spirits mixture is then passed through a filter, such as a funnel into which coffee filter papers have been fitted. The solids are caught in the filter, leaving the pseudoephedrine dissolved in the methylated spirits.
The methylated spirits is then allowed to evaporate, either by heating it, or by simply leaving it for a time in a broad-based vessel open to the atmosphere.
Once the methylated spirits has evaporated, the pseudoephedrine is left behind as a white solid residue which can be scraped up and then used in the next step of the process.
The next step is commonly effected by combining the pseudoephedrine with hydro-phosphorous acid and iodine in a reaction flask, usually a round piece of glassware, in which the contents are heated until boiling. After an hour or two the reaction is completed, and the pseudoephedrine is converted to methylamphetamine.
After the conversion has been completed, the reaction mixture is processed or purified; first by steam distillation, which again is conducted in a round reaction vessel coupled to a condenser, by the use of which a mixture of methylamphetamine, in the form of oil, and water, is produced. The water is then run off in a separation funnel, leaving the methylamphetamine oil.
In the final stage of the process, the methylamphetamine oil is mixed with hydrochloric acid, and the mixture heated. That reaction produces methylamphetamine hydrochloride, which is the powder form of methylamphetamine, which may then be cut with a substance such as Glucodin in preparation for sale.
Dr Pigou illustrated his evidence by producing a diagrammatic flowchart in which he sketched out the apparatus involved in each stage of manufacture, and described the nature of the process and the chemicals involved.
The flowchart was tendered as an exhibit, P67.
The flowchart was separated in the three stages headed “Extraction” which covered the steps in the process down to the production of pseudoephedrine powder; “Manufacture” which refers to the process of conversion by application of heat to the reaction mixture; and “Purification” which refers to the process of production of the pure methylamphetamine powder from the crude product of the reaction.
He then gave evidence of his examination and analysis of the various items seized from the kitchen in the appellant’s house and from the workshop at Uraidla.
His examination of the filter coffee papers seized from the appellant’s house, indicated the presence of a powder or white salt containing pseudoephedrine, Triprolidine and fatty acids. He said that fatty acids are commonly found in decongestant tablets such as Sudafed, which may also contain Triprolidine as well as pseudoephedrine.
Dr Pigou was asked to comment on the significance of the various incriminating items found in the kitchen of the Skye premises. His evidence as to those matters was summarised in the following passage in his examination-in-chief:
Q.… your conclusion in relation to the exhibits from the Skye property is that there were clear indications of the extraction process taking place, and, therefore, what you are referring to is the process that’s illustrated …
A.Yes.
Q.And there were four factors I think that we outlined for the jury to explain or justify your finding. Firstly, the availability of the cold and flu tablets, both used and unused.
A.Yes.
Q.Secondly, the existence of solvents, such as ethanol in the pump water bottle P63 and a bottle of methylated spirits and a bottle of acetone that was found at the house.
A.Yes.
Q.Thirdly, the used and unused coffee filters and in particular I highlighted for you item 42, the filters that had traces of pseudoephedrine.
A.Yes.
Q.Finally, the bag of pseudoephedrine that was found at the Uraidla workshop item SET18, now P16, in photo 24 which you said contained a quantity of triprolidine; is that correct.
A.Yes.
Q.And you said there was a consistency, but you couldn’t put it any higher than that, between that pseudoephedrine found at the workshop and the traces of pseudoephedrine found on the coffee filters that we have just discussed.
A.Yes.
Q.Finally, what you did mention also is that, in relation to the second and, indeed, third stages of the manufacture process most of the chemicals and equipment required to complete that process were not present at the house.
A.That’s correct.
Q.However, you did notice a couple of items, including the condenser that we have just discussed, and also a gas burner, another heat source required for the process.
A.Yes.
Q.And perhaps a third item that I forgot to mention are the glass stoppers that had the traces of methylamphetamine.
A.Yes.”
Detective Brain gave evidence as to the use of clear plastic press-seal bags of the kind found in both of the premises in question, for street dealing of methylamphetamine in powder form. He identified both sets of scales as the kind of scales used by a dealer measuring out street deals of methylamphetamine. He confirmed that Glucodin is commonly used to cut amphetamine. He said that coffee filter papers were often used to filter out the pseudoephedrine from the ground tablets during the extraction process. He confirmed also that it is common to find left-over empty blister packs which had contained Sudafed tablets, in clandestine amphetamine laboratories.
He gave evidence that the extraction of pseudoephedrine from “cold” tablets is often carried out independently of the other processes. This was in circumstances where the pseudoephedrine might be sold on the “black market” as a separate chemical. But more commonly it was extracted at a different place or at a different time as part of an ongoing process of manufacture of methylamphetamine in the hope that by fragmenting the process, detection might be avoided. He said that it was also a commonly used ploy in an endeavour to make it more difficult to demonstrate that methylamphetamine, as opposed to pseudoephedrine, was being manufactured.
No case to answer
Following the completion of the Crown case, Mr Caldicott, counsel for the appellant, submitted that there was no case to answer.
The argument advanced by Mr Caldicott in developing that submission was that, at most, all that the Crown case was capable of proving was that a process of extraction of pseudoephedrine had taken place. Given the absence of most of the chemicals and equipment which would be necessary for the subsequent processes of manufacture and purification, on any view of the facts, the jury could not be satisfied that the process in which the appellant might have been involved extended to those stages.
Support for that submission was said to be derived from the evidence of Detective Senior Constable Brain to which I have referred, to the effect that in some cases pseudoephedrine might be produced as the end-product of a process leading to the sale or disposal of the pseudoephedrine to others.
After hearing argument, the trial judge made a short ruling rejecting the no case submission.
The evidence of the appellant
The appellant gave evidence at the trial, during the course of which he said that both he and his partner used methylamphetamine, Ms Summerell being a heavier user.
He said that another man, Dale Hollick, who was a friend of Ms Summerell, would often visit the house and sometimes stay overnight. He said also that a worker who was engaged from time to time in his workshop at Uraidla, Nick Crossing, was an intravenous user of amphetamine, and that the container of needles in the workshop was for him.
As to the various other items which were seized at both premises, he gave innocent explanations, either asserting that they belonged to Ms Summerell or, in the case of some of the items found in the Skye premises, that he was not aware that they were there.
He explained his possession of the small plastic bags on the footing that they were used for containing nuts and bolts and the like during the course of his work on vehicles; that he used the Glucodin powder as an energy drink; that the heating tray was used for heating food; and that the test tubes were used for “shooter mixers” of drinks.
He said that he had a coffee percolator in his business premises and used filters in it, but that he did not have a percolator in his home. He denied seeing, before they were produced to him by the police, most of the other incriminating items found in the house, except that he said that there was some Sudafed in the house used as medication for his son.
He thought that the measuring glass and condenser belonged to Dale Hollick. The caustic soda container did not belong to him and he had not seen it before. As for the hydrochloric acid, he said that this was used in the swimming pool. He said that the digital scales found in the bedroom at home belonged to Ms Summerell.
He said that Ms Summerell regularly attended at the workshop at Skye. He denied any knowledge of the books describing chemical processes for production of drugs, and denied downloading any computer printouts relating to any such processes.
He admitted that he owned the diaries.
As for a pink cosmetic bag found in the workshop, which contained some of the amphetamine, he said that this belonged to Ms Summerell.
He denied having anything to do with the manufacture of methylamphetamine or pseudoephedrine, either directly or by allowing his premises to be used for those purposes.
The clear inference to be drawn from his evidence was that if anyone was involved in any such activity, it was either or both of Ms Summerell or Mr Hollick, to the exclusion of the appellant.
Neither Ms Summerell nor Mr Hollick gave evidence.
Grounds of appeal
The amended grounds of appeal are as follows:
1.The learned trial Judge erred in directing the jury as a matter of law that:
(a)     counsel for the accused was ‘wrong’
in putting to the jury that the first step of extraction of pseudoephedrine might not amount to taking part in the manufacture of methylamphetamine from pharmaceutical products. (Summing up p 23.7)
(b)     “It is incorrect to say that it is not illegal to extract pseudoephedrine, Mr Caldicott put that to you. It is of course illegal if it is done as part of an operation to produce methylamphetamine. It depends on the circumstances”. (Summing up p 72.3)
(c)     “… it is important to keep in mind that the prosecution case does not depend on proof of all steps in the manufacture being undertaken”. (Summing up p 75.2)
The combined effect of those directions was to take away from the jury the defence that it was a reasonable possibility the extraction was the end product of the applicant’s manufacturing activities and that it was not part of an operational manufacture.
2.The learned trial Judge erred in failing to direct the jury that for the act of extraction to be a step in the manufacture of methylamphetamine it would have to be satisfied beyond reasonable doubt that the applicant had extracted the pseudoephedrine for the purpose of using it to make methylamphetamine and as part of a process of that manufacture.
3.The withdrawal of a defence of the applicant by legal direction rendered the trial unfair, both in respect of Count 2 and Count 1.
Grounds 1 and 2
It is convenient to deal with these two grounds together.
I refer first to some relevant provisions in the Controlled Substances Act 1984 (“the Act”).
Methylamphetamine is declared by regulation to be a drug of dependence. Section 32(1)(b) of the Act creates the offence of knowingly taking part in the manufacture of such a drug.
Section 32(4) is in the following terms:
(4)Without limiting the generality of this section, a person takes part in the manufacture, production, sale, supply or administration of a drug of dependence or prohibited substance if the person–
(a)     takes, or participates in, any step, or causes any step to be taken, in the process of that manufacture, production, sale, supply or administration; or
(b)     provides or arranges finance for any such step in that process; or
(c)     provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which he or she is the owner, or in the management of which he or she participates.
In Thomas,[4] with reference to the analogous legislation in New South Wales, Gleeson CJ (with whom Cripps JA and Allen J agreed) said:
Where, as the Crown alleged to be the case here, a person manufactures something with a view to going on to use it in the manufacture of a desired end product then it is normally proper to regard that as a step in the process of manufacturing the end product. The fact that the process is interrupted in the intermediate stage does not take the case outside the terms … of the Act.
[4] (1993) 67 A Crim R 308 at 311, referred to with approval by this Court in Re Avory: Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392 per Perry J at 403.

The Crown case as to count 2 was advanced on the basis that the extraction of pseudoephedrine from pharmaceutical tablets had taken place in the Skye premises; that the appellant had either directly participated in that process, or provided the premises in which the process had been undertaken, or had permitted that process to be undertaken in those premises; and that the extraction of the pseudoephedrine was a step in the process of the manufacture of methylamphetamine.
The defence case was that the appellant was in no way involved in the extraction of the pseudoephedrine, but that in any event, the Crown had failed to exclude as a reasonable possibility that the pseudoephedrine was the end product of whatever process had taken place, as opposed to a step in the process of manufacture of methylamphetamine.
The appellant’s argument as to this aspect of the matter finds expression in the following passage in his counsel’s address to the jury:
What we then have is the manufacturing or taking part in the manufacture and probably the easiest way is the little diagram that was given to us by Mr Pigou, which you have before you and I don’t necessarily need you to look at it very closely, but it says the first operation was extraction. So if you have pseudoephedrine at your house you are, in theory, according to the prosecution taking the first step in the manufacture of methylamphetamine. Clearly that can’t be the case. Probably the simplest example is it’s like making flour or making yeast in the production of bread; you are making yeast or harvesting yeast, extracting it and doing what is necessary, it is only when you combine the yeast with the flour and the water and place it at appropriate temperatures that you achieve bread. And it’s exactly the same process. Would you say that the milling of flour is, in fact, making bread. The clear answer clearly is no.
Mr Pigou clearly indicated in his evidence that the manufacture is when there is a combination of particular items together in a flask. That clearly you need certain equipment, it wasn’t there. What my friend said in terms of that is, there is no possible reason other than to make methylamphetamine from the extraction process, well I think Mr Brain actually indicated that some people do in fact extract pseudoephedrine and sell it for the product. So there is another explanation that was given by expert from the Drug & Organised Crime, because clearly it is not illegal to extract pseudoephedrine and clearly that’s what could have occurred. (emphasis added)
It is that passage which was the subject of the directions by the trial judge, to which grounds 1(a) and (b) of the appeal are directed.
The first of the passages in the trial judge’s summing up which is the subject of complaint by the appellant is as follows:
The prosecution says that you can properly regard the extraction of pseudoephedrine as participating in a step of the process of manufacture in methylamphetamine.
In reply, counsel for the accused put to you that there was no proof of any manufacture because, on Dr Pigou’s account, that only occurred, or occurs, at least, as a second step, after the first step of extraction. That submission by the accused was wrong and I am obliged to correct Mr Caldicott on that matter.
Whilst it was convenient for Dr Pigou to describe in his scientific way three processes, namely extraction, manufacture and purification, these are not separate descriptions for the purposes of the law. The law uses the term “manufacturing” in its broadest sense and the extraction of pseudoephedrine is included in that definition provided it is carried out as part of a larger current or future operation for the production of methylamphetamine.
The reference in the last paragraph of that passage to three processes, that is “extraction, manufacture and purification”, is a reference to the three headings in the flowchart, P67, which was prepared by Dr Pigou and put before the jury.
When the appellant’s counsel said to the jury in the course of his address “Mr Pigou clearly indicated in his evidence that the manufacture is when there is a combination of particular items together in a flask”, counsel would have been understood by the jury as referring to the second heading in the flowchart.
To address the jury in those terms was capable of misleading the jury into thinking that to take part in the manufacture of methylamphetamine it was incumbent upon the Crown to prove the participation of the appellant in that process as described under that heading in the flowchart.
The judge was entitled to correct any such impression, and to explain that while it might have been convenient for Dr Pigou to explain the processes involved in the manufacture of methylamphetamine under those three headings, the definition of manufacture in s 32(4) of the Act was much wider in scope.
The judge correctly directed the jury that the extraction of pseudoephedrine, which is described by Dr Pigou under the first heading of the flowchart, would constitute in law, manufacture of methylamphetamine if it was carried out “as part of a larger current or future operation for the production of methylamphetamine”.
This part of the judge’s direction simply paraphrased for the benefit of the jury what was involved in taking or participating in a step in the process of manufacture as defined in s 32(4).
The second passage in the trial judge’s summing up of which the appellant complains, is set out in ground 1(b) of the notice of appeal.
I will set that out again, but begin the quotation a little earlier in the summing up:
As to count 2, Mr Caldicott suggested to you that on Dr Pigou’s evidence there was no proof of the accused taking part in the manufacturing process. I have already instructed you that Dr Pigou’s description of the manufacturing stage of the process is not the definition of manufacture contained in the Controlled Substances Act and that for the purposes of that Act, manufacturing includes extraction of pseudoephedrine in circumstances where it is part of a larger current or future operation for the manufacturing of methylamphetamine.
Nevertheless, said Mr Caldicott, you might consider whether that was the ultimate purpose here or whether the pseudoephedrine was manufactured for the purpose of trading in it, as Detective Brain said sometimes occurred.
It is incorrect to say that it is not illegal to extract pseudoephedrine. Mr Caldicott put that to you. It is, of course, illegal if it is done as part of an operation to produce methylamphetamine. It depends on the circumstances.
Criticism by the appellant of this passage is unfounded. The statement by Mr Caldicott to the jury that it was not illegal to extract pseudoephedrine could have led the jury into error.
The correct position is as the trial judge pointed out, that it may or may not be illegal to produce pseudoephedrine, depending upon whether it was “done as part of an operation to produce methylamphetamine”.
Earlier in his summing up, the trial judge said, in discussing the elements of the offence, that “it must be shown that … the accused knew that the substance to be manufactured was methylamphetamine”.
Ground 3
The third passage complained of by the appellant occurs towards the end of the summing up.
This complaint may be disposed of shortly. When the trial judge said that it was “important to keep in mind that the prosecution case does not depend on proof of all steps in the manufacture being undertaken”, all that the trial judge was doing was to make it clear that proof of any one step, even an early step in the process of manufacture, was sufficient to sustain the charge.
Taken in context, the jury could only have understood that comment to mean that if the pseudoephedrine, which clearly enough had been produced at the Skye premises, was produced in the course of a process of manufacture of methylamphetamine, the step of extracting the pseudoephedrine would be sufficient to amount to proof of the charge.
On no view of the summing up could it properly be suggested, as the appellant contends in ground 1, that the “… combined effect of those directions was to take away from the jury the defence that it was a reasonable possibility the extraction was the end product of the applicant’s manufacturing activities and it was not part of an operational manufacture”.
It is not without significance that no complaint was made to the trial judge by the appellant’s counsel, Mr Caldicott, who is a very experienced counsel, as to any aspect of the summing up.
The observations which I have made so far are sufficient to dispose of grounds 1 and 2.
As to ground 3, for the reasons which I have already given, there was no “withdrawal of a defence of the applicant by legal direction”, as is suggested in this ground.
I would dismiss the appeal.
DUGGAN J. I agree that the appeal should be dismissed for the reasons given by Perry J.
SULAN J. I agree with the reasons of Perry J. I would dismiss the appeal.