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;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Thomas

Details

AGLC: R v Thomas [2005] SASC 268
Case: [2005] SASC 268
Decision Date: 22 July 2005

CaseChat Overview and Summary

The case of R v Thomas involves an appeal against the conviction of the appellant who was found guilty by a jury of possessing methylamphetamine for sale and taking part in the manufacture of methylamphetamine. The charges against the appellant arose from police raids conducted at business premises in Uraidla and a house in Skye where the appellant lived. The conviction for possession of methylamphetamine for sale was based on the seizure of three quantities of methylamphetamine found at three separate locations in the office area of the Uraidla workshop. Further incriminating evidence was found at the Uraidla premises and the Skye house. The appellant's appeal focused on two main issues: whether the trial judge misdirected the jury as to the content of the defence counsel's submissions, effectively withdrawing the appellant's defence, and whether the 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.

The court had to decide if the trial judge correctly directed the jury on the evidence presented, including the expert evidence from Dr Pigou and Detective Senior Constable Brain. Dr Pigou, a forensic scientist, explained to the jury how methylamphetamine could be manufactured from commercially prepared medication such as Sudafed, which contains pseudoephedrine. The process involved extracting pseudoephedrine from the tablets and then converting it into methylamphetamine through a series of chemical reactions. The court examined whether the trial judge properly conveyed the defence's arguments and whether the jury was correctly directed on the essential elements of the charges.

After reviewing the trial judge's directions to the jury and the evidence presented, the court concluded that the trial judge correctly directed the jury. The court found no misdirection or error in the trial judge's instructions that would warrant setting aside the conviction. The court held that the trial judge had accurately reflected the defence submissions and adequately explained the elements of the charges to the jury. Consequently, the appeal against the conviction was dismissed.

No further orders were made by the court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

PERRY J DUGGAN J (dissent) SULAN J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by: PERRY J,

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