R v Vaccaro - [2017] SASCFC 10

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v VACCARO
[2017] SASCFC 10
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Lovell and The Honourable Justice Hinton)
16 February 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PRODUCTION OR CULTIVATION
CRIMINAL LAW - PROCEDURE - SUMMING UP
The appellant was convicted by jury of one count of manufacturing a controlled drug for sale, one count of manufacturing a commercial quantity of a controlled drug for sale and one count of trafficking in a controlled drug.
The appellant appealed only against his conviction for the second count. The appellant contends that the trial Judge ought to have found there was no case to answer with respect to the second count on the basis that an insufficient quantity of one of the required chemicals for manufacturing a commercial quantity of methylamphetamine was located. The appellant contends that a commercial quantity is required to be produced in one batch rather than cumulatively across multiple batches.
The appellant also contends that the trial Judge inadequately directed the jury as to the requirement to find the element of commerciality proved beyond reasonable doubt.
Held (the Court):
1. The trial Judge correctly found a case to answer in respect of count two. A commercial quantity of a controlled drug can be proved by considering the cumulative quantity of multiple batches of sufficiently related manufacturing (at [46]-[47]).
2. The Judge’s summing up must be considered in its entirety and when so considered the trial Judge’s directions as to count two were adequate (at [57]).
3. Appeal dismissed (at [62]).
Controlled Substances Act 1984 (SA) s 4, s 6, ss 32(3), ss 33(2), ss 33(3); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 1, referred to.
Melbourne v The Queen (1999) 198 CLR 1; Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; R v Maggs (2008) 100 SASR 303; R v Randylle (2006) 95 SASR 574; R v Scarpantoni (2013) 118 SASR 131; Re Avory; Question of Law Reserved (No 1 of 2003) (2003) 87 SASR 392, discussed.
R v Woods (2008) SASR 422; R v Zainudin (2012) 115 SASR 165, considered.

R v VACCARO
[2017] SASCFC 10
Court of Criminal Appeal: Blue, Lovell and Hinton JJ
THE COURT.
Overview

The appellant, Mr Vaccaro, was charged in the District Court with one count of manufacturing a controlled drug for sale[1], one count of manufacturing a commercial quantity of a controlled drug for sale[2] and one count of trafficking in a controlled drug.[3] At trial, the appellant gave evidence that he had been manufacturing and selling methylamphetamine. He relied on the defence of duress.
[1] Controlled Substances Act 1984 (SA) subsection 33(3).
[2] Controlled Substances Act 1984 (SA) subsection 33(2).
[3] Controlled Substances Act 1984 (SA) subsection 32(3).
The jury convicted the appellant of all three counts. This appeal relates only to…

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 Vaccaro

Details

AGLC: R v Vaccaro [2017] SASCFC 10
Case: [2017] SASCFC 10
Decision Date: 16 February 2017

CaseChat Overview and Summary

The appeal in *R v Vaccaro* concerned a conviction for manufacturing a commercial quantity of a controlled drug for sale. The appellant, Matthew Vaccaro, was convicted by a jury on three counts, with this appeal relating specifically to the second count. The prosecution's case was that the appellant and a co-accused, Mr Angeletti, engaged in the manufacture of methylamphetamine. Evidence presented at trial included the discovery of pseudoephedrine-containing medications, cash, a clandestine laboratory setup with chemicals and equipment, and traces of methylamphetamine at the appellant's premises. The appellant had also made several trips to Melbourne, from which pseudoephedrine was likely acquired.

The legal issues before the Full Court of the Supreme Court of South Australia were twofold. Firstly, whether the trial judge erred in finding that a case to answer existed in relation to the second count, which alleged the manufacture of a commercial quantity of methylamphetamine. Secondly, whether the trial judge erred in directing the jury regarding the proof required for a commercial quantity. The appellant argued that insufficient iodine was present at the premises to manufacture the commercial quantity alleged, rendering the finding of a case to answer on that count erroneous.

The Court dismissed the appeal. Regarding the first ground, the Court held that the trial judge was correct in finding a case to answer. While it was common ground that 100 grams of methylamphetamine had not been manufactured, the evidence indicated that the appellant had sourced pseudoephedrine with the intention of manufacturing methylamphetamine. The presence of pseudoephedrine, along with the necessary equipment and other chemicals, was sufficient to establish a case for manufacturing a commercial quantity, even if the process was not completed or the full quantity achieved at the time of arrest. The Court reasoned that the offence of manufacturing a commercial quantity for sale did not require the full commercial quantity to be produced, but rather the intention and steps taken towards that end. The second ground of appeal was not pursued in the judgment.

Orders

Orders of the court

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Background

Background to the litigation

The jury convicted the appellant of all three counts. This appeal relates only to count 2.Background On the morning of 4 July 2013 the appellant drove his car to and parked it at Adelaide Airport. He and his co-accused, Mr Angeletti, flew to Melbourne taking with them a speaker and an amplifier. When they arrived in Melbourne they hired a car at the airport and the appellant purchased a screwdriver set. They arrived back in Adelaide in the hire car about 10 hours later. At about 7.00 pm the appellant and his co-accused were stopped by police when they drove up to the appellant’s house at Green Hills Range. In the car, hidden inside the speaker, were 375 packets of “cold and flu” medications containing pseudoephedrine along with $18,300 in cash. Police also located $1,900 inside the glove box and $8,900 on the appellant’s person. In the car left at Adelaide Airport police located a small plastic tub containing 8.01 grams of paste containing methylamphetamine. At the premises police located a clandestine laboratory setup, 80 grams of pseudoephedrine, some of which had already been extracted, and some of which was in the process of being extracted from other cold and flu tablets. Police also discovered $46,100[4] in cash in another speaker inside the shed. There was evidence at the scene indicating past methylamphetamine manufacture. The police located various chemicals such as hypophosphorous acid and iodine, in addition to glassware and equipment, small plastic re-sealable bags, tubs, tick-lists and portable scales. Traces of methylamphetamine were later found on the scales. [4] T105. The appellant and Mr Angeletti had between March and May 2013, on three occasions, flown to Melbourne, hired a car and immediately driven back to Adelaide. The obvious inference was that the appellant had previously visited Melbourne to acquire pseudoephedrine. The charges The appellant was jointly charged with Mr Angeletti in relation to the first two counts and alone on count 3. The Information stated:Mark Phillip Angeletti and Matthew Vaccaro are charged with the following offences:First CountStatement of OffenceManufacturing a Controlled Drug for Sale. (Section 33(3) of the Controlled Substances Act, 1984).Particulars of OffenceMark Phillip Angeletti and Matthew Vaccaro between the 9th day of May 2013 and the 5th day of July 2013 at Greenhills Range and other places, knowingly manufactured a controlled drug, namely methylamphetamine, intending to sell any of that drug or believing that another person intends to sell any of that drug.Second CountStatement of OffenceManufacturing a Commercial Quantity of a Controlled Drug for Sale. (Section 33(2) of the Controlled Substances Act, 1984).Particulars of OffenceMark Phillip Angeletti and Matthew Vaccaro on the 4th day of July 2013 at Greenhills Range and other places, knowingly manufactured a commercial quantify 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.Matthew Vaccaro is charged with the following offence:Third CountStatement of OffenceTrafficking in a Controlled Drug. Section (32(3) of the Controlled Substances Act, SA, 1984 and Section 4 of the Commonwealth Places (Application of Laws) Act, Cth, 1970).Particulars of OffenceMatthew Vaccaro on the 4th day of July 2013 at Adelaide Airport, a Commonwealth Place, knowingly trafficked in a controlled drug namely methylamphetamine

Evidence

Evidence Before The Court

There are two grounds of appeal. First that the trial Judge erred in finding a case to answer in relation to count 2. Secondly, that the Judge erred in directing the jury as to the requirements of proof of the commercial quantity. Evidence There was no dispute at trial about the background matters set out above. Dr Cox, a forensic chemist, gave evidence about the manufacture of methylamphetamine. He stated that the most common method was the direct conversion of pseudoephedrine to methylamphetamine which involved three main steps. The first step involved the extraction and isolation of pseudoephedrine from a commercial decongestant such as the cold and flu tablets purchased by the accused. The second and third steps involved the use of hypophosphorous acid and then iodine to convert the pseudoephedrine to methylamphetamine. Dr Cox gave evidence that the 375 packets of tablets found in the car[5] contained a total of 269.64 grams of pseudoephedrine. From that amount of pseudoephedrine approximately 164 grams of pure methylamphetamine could be manufactured.[6] In the opinion of Dr Cox, this was a “conservative conversion”[7] and a higher yield could have been achieved. Dr Cox said that 113 grams of iodine was required to process the pseudoephedrine found in the “cold and flu” packets.[8][5] Appeal Book p 92-94. [6] Trial Transcript 285 line 18 and line 29; Trial Transcript 286 Line 33.[7] Trial Transcript 348 line 16. [8] Trial Transcript 325 lines 27 to 30. At the premises the police located enough hypophosphorous acid to manufacture more than 200 grams of methylamphetamine but only enough iodine to manufacture 70 to 80 grams of methylamphetamine. Evidence was led to establish that pseudoephedrine was more difficult to obtain in South Australia compared with Victoria. Iodine was not as difficult to obtain although there were impediments to obtaining large amounts. There was little or no challenge to the prosecution evidence relating to trips interstate and the items located by the police during their searches. As mentioned the defence of the appellant was that he committed the offences whilst acting under duress.Ground 1 The appellant submits that the Judge ought to have found that there was no case to answer with respect to the second count. He submits that more than 100 grams of methylamphetamine could not be manufactured with the chemicals present at the appellant’s house at the time of the appellant’s arrest. He relies in particular on the absence of sufficient iodine at the premises, it being, on the evidence of Dr Cox, an essential component in the process. At the premises the police located enough hypophosphorous acid to manufacture more than 200 grams of methylamphetamine. However as Dr Cox confirmed there was only sufficient iodine to produce about 70 to 80 grams of methylamphetamine.[9] [9] Trial Transcript 323 – T324. It was common ground that there was no evidence that 100 grams of methylamphetamine had been manufactured. This was a case, as discussed earlier, where the pseudoephedrine had been sourced, purchased, transported and carried back from Melbourne to Adelaide with a view to manufacture.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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