R v Vaccaro
[2017] SASCFC 10
•16 February 2017
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 10Court 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 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 Count
Statement of Offence
Manufacturing a Controlled Drug for Sale. (Section 33(3) of the Controlled Substances Act, 1984).
Particulars of Offence
Mark 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 Count
Statement of Offence
Manufacturing a Commercial Quantity of a Controlled Drug for Sale. (Section 33(2) of the Controlled Substances Act, 1984).
Particulars of Offence
Mark 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 Count
Statement of Offence
Trafficking 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 Offence
Matthew Vaccaro on the 4th day of July 2013 at Adelaide Airport, a Commonwealth Place, knowingly trafficked in a controlled drug namely methylamphetamine
The first count was particularised as relating to methylamphetamine that had previously been manufactured at the appellant’s premises.
The second count, whilst charged as a manufacture, was particularised as steps taken in the process of manufacturing namely the acquiring, storing, carrying, transporting or loading of 375 packets of pseudoephedrine medications as part of the process to manufacture a commercial quantity of methylamphetamine. A commercial quantity is defined in the Regulations as 100 grams of pure methylamphetamine.
The third count related to the 8.01 grams of paste containing methylamphetamine located in the car that the appellant hired.
The appellant’s main defence was that he was acting under duress in relation to each count. On 18 June 2015 the jury convicted him of all three counts.
The appellant appeals to this Court against his conviction on the second count, namely manufacturing a commercial quantity of a controlled drug for sale contrary to subsection 33(2) of the Controlled Substances Act 1984 (SA) (“the Act”).
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.
The appellant accepts that count 2 could be proved where only such steps have been undertaken. The prosecution had alleged that the appellant had taken steps in relation to manufacture of a commercial quantity of methylamphetamine. The appellant submits that the absence of sufficient iodine at the premises where the manufacture was to take place, that would enable a commercial quantity to be manufactured, was a fatal flaw in the prosecution case. He submits that the conclusion could not be drawn, at the case to answer stage, that there would have been a manufacture of more than 100 grams of methylamphetamine. Therefore the Judge erred in finding that the appellant had a case to answer in relation to count 2.
Before dealing with those submissions it is necessary to consider an antecedent question that arose during the appeal. Does the prosecution have to prove that an intended manufacture, in which the appellant takes a step in the production, involves a single and continuous production batch of more than 100 grams (the prescribed quantity) or can a series of productions of batches, each of a lesser amount than 100 grams but totalling more than 100 grams, suffice?
If the prosecution relies on a number of production batches to establish a total of more than 100 grams, the question of whether the count on the information is bad for duplicity also arises.
The Director argues for a wide construction of the expression “taking part in the process of manufacture” such that, depending on the factual circumstances, multiple acts of production can be covered by the one charge without a question of “latent duplicity” arising. He submits that an accused could be involved in one process of manufacture but break up that process into several batches.
Subsection 33(2) of the Act states:
(2) A person who manufactures a commercial quantity of a controlled drug intending to sell any of it or believing that another person intends to sell any of it is guilty of an offence.
Maximum penalty:
(a) for a basic offence—$200 000 or imprisonment for 25 years, or both;
(b) for an aggravated offence—$500 000 or imprisonment for life, or both.
“Manufacture” has a wide definition in Section 4 of the Act as follows:
manufacture, in relation to a controlled drug means—
(a) undertake any process by which the drug is extracted, produced or refined; or
(b) take part in the process of manufacture of the substance;
Paragraph (b) is further defined under subsection (4) as follows:
For the purposes of this Act, a person takes part in the process of sale, manufacture or cultivation of a controlled drug or controlled plant if the person directs, takes or participates in any step, or causes any step to be taken, in the process of sale, manufacture or cultivation of the drug or plant.
Subsection (6) states the following:
For the purposes of this Act, a step in the process of manufacture of a controlled drug includes, without limitation, any of the following when done for the purpose of manufacture of the drug:
(a) acquiring equipment, substances or materials;
(b) storing equipment, substances or materials;
(c) carrying, transporting, loading or unloading equipment, substances or materials;
(d) guarding or concealing equipment, substances or materials;
(e) providing or arranging finance (including finance for the acquisition of equipment, substances or materials);
(f) providing or allowing the use of premises or jointly occupying premises.
Schedule 1 to the Regulations defines a commercial quantity of methylamphetamine as depicted below:
Large commercial Commercial Trafficable (pure) (mixed) (pure) (mixed) (mixed) Methylamphetamine
(Methamphetamine)0.75 kg 1 kg 0.1 kg 0.5 kg 2 g
In Re Avory; Question of Law Reserved (No 1 of 2003)[10] this Court considered the interpretation of the now repealed subsection 32(4) of the Act and in particular the meaning of the expression “take part in the manufacture of”.
[10] [2003] SASC 430, (2003) 87 SASR 392.
Whilst the issue in Avory was whether the acts of the appellant were acts preparatory to manufacture or steps taken in the process of manufacture within the meaning of the section, in the course of his reasons Besanko J in addition to agreeing with Perry J added:[11]
Section 32(4)(a) of the Controlled Substances Act 1984 (SA) (CSA) refers to the “process” of manufacture. The notion of a process is implicit in the concept of manufacturing and therefore in the use of the word “manufacture” in s 32(1)(b). In this respect there is no difference between s 32(1)(b) and s 32(4)(a). In Federal Commissioner of Taxation v Jack Zinader Pty Ltd (1949) 78 CLR 336, Dixon J (as he was then) referred with approval to the following statement of Darling J in McNichol v Pinch [1906] 2 KB 352 at 361:
The essence of making or of manufacturing is that what is made shall be a different thing from that out of which it is made.
In my opinion, that is an apposite definition of the purposes of s 32 of the CSA. As Bell J noted in R v BD (2001) 122 A Crim R 28, the relevant definition of the word “process” in the New Shorter Oxford English Dictionary is as follows:
a systematic series of actions or operations directed to some end, as in manufacturing, printing, photography etc.
[11] At [103]-[104].
In R v Randylle[12] this Court again considered the meaning of the phrase “process of manufacture” under the same sections considered in Avory. The issue in Randylle was whether the facts proved by the prosecution established that Randylle had taken or participated in a step in the process of the manufacture of methylamphetamine as opposed to taking only preparatory steps.
Doyle CJ (with whom the other four Judges agreed) stated:[13]
In my opinion (and there is nothing in Avory to the contrary), a step in the process of manufacture can be taken by someone who does not have all of the equipment or chemicals required to complete the process. Such a step could be taken before any chemical reaction is produced by the use or treatment of consumables. The process of production can be broken into stages, that might be conducted at different places and by different people and on different days. If the evidence establishes that that is what was intended, an act or event which in isolation might not appear to be a step in the process of production may, properly understood, be found to be such a step. All of these things have to be considered.
There is no doubt in my mind that acquiring and setting up the equipment needed to manufacture a drug or substance (or part only of the equipment), could amount to the taking of a step in the process of manufacture (depending of course on what other evidence there is), even though one might say that this is preparatory to the manufacture of the drug, referring to the use and treatment of the consumables as the object of the exercise. Once again, the answer to the statutory question would depend on all of the facts of the case.
[12] [2006] SASC 318, (2006) 95 SASR 574.
[13] At [43]-[44].
Doyle CJ also cited with approval the remarks of Besanko J in Avory cited earlier.[14]
[14] At [46].
In both Avory and Randylle this Court accepted that a process of manufacture can be broken into stages including being conducted at different places and at different times.
In R v Maggs[15] this Court considered the question of whether more than one batch of drugs produced in a process of manufacture of methylamphetamine amounted to one or more offences of manufacturing a drug of dependence. Maggs was convicted of two counts of manufacturing methylamphetamine. The prosecution alleged that when the police arrived at the premises of Maggs, two separate manufactures of methylamphetamine were taking place. On appeal Maggs argued that only one process of manufacture was occurring when the police arrived.
[15] [2008] SASC 105, (2008) 100 SASR 303.
Doyle CJ stated:[16]
[16] At [18].
The prosecution case was that the jury should find that, immediately before the police entered the shed, Mr Maggs was taking part in the production of methylamphetamine, using the equipment and the chemicals and the liquids found in the shed. The prosecution did not claim to identify any particular act on the part of Mr Maggs that made him guilty of the offences charged and did not need to. The prosecution case was that the liquid methylamphetamine (the subject of count 1) and the dissolved pseudoephedrine (the subject of count 2) could be regarded as the fruits of, and as evidence of, two separate processes of manufacture or production of methylamphetamine. In particular the argument appears to be (more so on appeal than before the jury) that the dissolved pseudoephedrine was not needed for the conversion of the liquid methylamphetamine to the crystalline form, and so much have represented an early step in a separate process of production or manufacture of methylamphetamine.
The question of whether, on this evidence, Mr Maggs could properly be convicted of two offences was not raised at trial. That is now the main issue on appeal.
One offence or two?
The concept of taking part in the manufacture or production of a drug of dependence is a wide one. But it remains necessary to decide, in a given case, whether the evidence establishes that the accused took part in a single process of manufacture or production or whether the accused took part in more than one process of production or manufacture.
All three members of the Court agreed that the evidence established that only one offence had been committed.
Consistent with the reasoning of Besanko J in Avory, Bleby J in relation to determining the question of what amounts to a manufacture stated:[17]
In R v Chapman I described the manufacture of methylamphetamine as an activity involving a process. One can take part in that activity continuously for the duration of the process or intermittently or by performing a single act. It will be a question of fact in each case whether only one or more than one offence has been committed. That cannot depend on the number of “batches” produced. Depending on the factual circumstances proved, there may be a number of offences committed in respect of the one batch. If, for example, the manufacture of one batch is spread over two days with a break between the two days, there may well be two or more offences committed in respect of the one batch. If a production line is set up producing several batches over a continuous period, and the defendant is engaged in the process for the whole period, there may only be one offence.
[17] At [46].
The concept of “taking part in the manufacture of a drug” is as stated by Doyle CJ in Maggs a wide one. There is no reason to read subsections 33(4) and 33(6) narrowly. The legislation is designed to catch a wide range of conduct.
As can be seen in the current subsection 33(4) of the Act the definition of manufacture still includes the concept of taking a step in the “process of manufacture” as it did in the sections considered in Avory and Randylle. Whilst the definition of “manufacture” has been changed since Maggs was decided, the changes are not material to this argument.
We agree with Bleby J that the manufacture of methylamphetamine can be described as an activity involving a process in which one can participate continuously for the duration of the process, intermittently, or by performing a single act. The important point to bear in mind is that the facts must be capable of establishing that the activity or process undertaken amounts to one manufacture for the purposes of the legislation.
The prosecution here did not have to prove that more than 100 grams of methylamphetamine was to be produced in one batch. Depending on the circumstances proved, a production of several batches of methylamphetamine may constitute only one offence.
We add that the expanded definition of manufacture contained in subsection 4(4) of the Act has the consequence that an offence charged contrary to subsection 33(2) of the Act may be complete, in that the extraction, production or refinement of a commercial quantity of a controlled drug is completed, or, incomplete, in that the extraction, production or refinement of a commercial quantity of a controlled drug has not been achieved but a step in the process of achieving any one of those outcomes, within the meaning of subsection 4(6) of the Act, has been undertaken. In either instance there is but one process of manufacture. In either instance that process must be one that results in the extraction, production or refinement of a commercial quantity of a controlled drug or would, if completed, do so.
Was there a case to answer?
The correct test for a judge to apply at the no case to answer stage is well settled. In Questions of Law Reserved on Acquittal (No 2 of 1993),[18] King CJ said:
I would restate the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypothesis is unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, is not reasonably open on the evidence.
[18] (1993) 61 SASR 1; see R v Woods (2008) SASR 422 at para [88], R v Zainudin (2012) 115 SASR 165 at [60].
It is common ground on appeal that the Court should only have regard to the prosecution evidence when deciding whether there was a case to answer.
Accordingly, to succeed on count 2 the prosecution had to prove beyond reasonable doubt that there was only one process of manufacture. We accept that a number of batches of a controlled drug may be produced as part of one process of manufacture, but evidence of a number of batches produced may, without more, be equivocal as to whether one or more processes of manufacture has occurred. Ultimately it is a question of fact.
Here, at the close of the prosecution case, it was open to infer from the evidence of prior manufacture and of prior trips to Melbourne and the frequency of those trips, taken with the evidence of the trip on 4 July 2013 and the tablets sourced on that trip, that the past trips were for the purpose of acquiring tablets from which pseudoephedrine could be and was extracted, each trip being undertaken once the supply from a previous trip was exhausted. Once those inferences are drawn, it is a very short step to conclude that the trip on 4 July 2013 was for the same purpose. Following this chain of reasoning the trier of fact could be satisfied that each trip to Melbourne and related acquisition, including the trip of 4 July 2013, was a step in a separate process of manufacture and further that the past processes of manufacture came to an end sometime before the necessity of a further trip arose. Bearing in mind the frequency of the trips and the time interval between trips, each process could be viewed as one undertaken in acquiring and using the tablets sourced and continuing until such time as the supply of tablets was exhausted. Although some restrictions exist, purchasing iodine in South Australia is not particularly difficult and it was open in the circumstances to infer sufficient iodine would be purchased and purchased quickly as needed. That a number of batches could have been produced before the tablets were exhausted would not detract from characterising the conduct as one process of manufacture. Once that conclusion is reached, it may be inferred that the 4 July 2013 trip was a step in a process that would end upon the exhaustion of the supply of tablets acquired. Thereafter, Dr Cox’s evidence, if accepted, supported the further inference that that process was one which upon completion would have resulted in the manufacture of a commercial quantity of methylamphetamine. That left proof of a commercial intent. In that regard the circumstantial evidence was overwhelming. Accordingly, drawing all inferences favourable to the prosecution that were reasonably open, there was evidence which if accepted was capable of excluding all hypotheses consistent with innocence. In short, there was a case to answer.
We reject ground 1.
Ground 2 – complaints about directions
The appellant makes a number of complaints in relation to the directions given on the commercial element by the Judge. As to the commercial element, the Judge directed the jury in the following terms:
The fifth element that the Crown must prove is that a commercial quantity, that is, 100 g or more of a controlled drug was being manufactured, in the sense that I have explained to you in element 1, that is, that manufacture has a wider definition than actually making the product.
The directions given by the Judge in relation to element 1 were as follows:[19]
The second count on the information is against Mr Angeletti and Mr Vaccaro. It charges the offence of manufacturing a commercial quantity of a controlled drug for sale. In this particular count, once again the first element is that the accused, both of them, manufactured a controlled drug. That is, in this case, that they took part in the process of manufacture of the substance. The law says that a person takes part in the process of manufacture if a person directs, takes, or participates in any step of causes any step to be taken in the process of manufacture.
A step in the process of manufacture of a controlled drug includes any of the following when done for the purpose of manufacturing of a drug. It includes acquiring the substance, storing the substance, carrying the substance, transporting the substance or loaning the substance. It is alleged that each of the accused participated in each of those steps when the pseudoephedrine was acquired in Melbourne, put into the speaker box in the back of the car, driven back to Adelaide and was concealed as it was within that speaker box.
[19] Appeal Book p 198.
The appellant submits that the jury may have understood from those directions that it was sufficient for them to find the element of commercial quantity proven so long as they were satisfied the appellant was taking part in the manufacture regardless of quantity. The appellant submits that as the Judge did not relate her Honour’s directions to the facts of the case the jury may not have understood the need to find the element of commerciality, namely a manufacture of 100 grams or more of methylamphetamine, proved beyond a reasonable doubt.
The appellant also submits that the Judge did not make it clear to the jury that count 2 only related to a manufacture of methylamphetamine from the pseudoephedrine contained within the “cold and flu tablets” rather than a combination of that pseudoephedrine in combination with the pseudoephedrine already at the premises when the police arrived.
The task of a trial judge when embarking on a summing up was discussed in Melbourne v The Queen.[20] Hayne J (with whom Gummow J agreed) stated:
The directions that a trial judge gives the jury in a criminal trial must instruct the jury on only so much of the law as they need to know for the purposes of deciding the particular case that has been tried before them. It is neither necessary nor desirable that a judges charge go further.
It is trite to observe that the jury, not the judge, are the sole judges of questions of fact. But that does not mean that a trial judge can leave all questions of fact to the jury without giving them any directions. The trial judge in a criminal trial must instruct the jury about some matters that affect how they set about finding the facts. [21]
[20] (1999) 198 CLR 1.
[21] (1999) 198 CLR 1 at para 143.
When considering complaints about a summing up it is important to have regard to the issues at trial. Here the focus of the defence of the appellant was on the question of duress. When the appellant gave evidence he admitted, as discussed later, nearly all of the elements of all three offences. It is also pertinent to note that counsel for the appellant at trial sought no further directions or clarifications from the Judge at the conclusion of her Honour’s summing up.
We reject the submissions of the appellant. The Judge’s summing up must be looked at in its entirety. The Judge summarised accurately the evidence of Dr Cox on what amount of methylamphetamine could have been manufactured from the cold and flu tablets acquired in Melbourne. The Judge gave clear and detailed directions that count 2 related only to the pseudoephedrine acquired in Melbourne and concealed in the speaker box.
The Judge also gave directions in relation to the alternative charge available in relation to count 2, namely taking part in the manufacture of methylamphetamine if commerciality was not proved. The Judge emphasised that this alternative was only available if the jury was not satisfied that the element of commerciality had been proved beyond a reasonable doubt. Further when dealing with the defence of duress, the Judge reminded the jury that when the appellant gave evidence he admitted each of the elements of all the offences except the element of commerciality in relation to count 2.
When the summing up is considered in its entirety, the Judge made it clear that the jury had to be satisfied beyond a reasonable doubt that 100 grams or more of methylamphetamine was to be produced if it was to convict on count 2. The Judge made it clear that count 2 related to the cold and flu tablets acquired in Melbourne.
The appellant also submits that the Judge erred in failing to direct the jury that his intention with respect to the manufacture was not relevant to proof of the commercial quantity element of the charge. He relies on the decision of this Court in R v Scarpantoni[22] to support that submission. The issue in Scarpantoni was whether the prosecution had to prove, as an element of the offence, that an accused intended to manufacture 100 grams or more of methylamphetamine. This Court held that the prosecution only had to prove that 100 grams or more was manufactured and not that the accused intended to manufacture 100 grams or more. This Court did not decide that the intention of an accused was irrelevant to the element of commerciality.
[22] (2013) 118 SASR 131.
In a circumstantial evidence case, an admission by an accused that he or she intended to manufacture more than 100 grams of methylamphetamine is a piece of evidence to be taken into account when a jury considers the question of whether, objectively, a commercial quantity of methylamphetamine was to be produced.
It was open to the jury to have regard to the evidence of the appellant when considering the question of whether the prosecution had proved that 100 grams or more of methylamphetamine was to be manufactured.
We reject the submissions of the appellant. We reject ground 2.
Orders
We dismiss the appeal
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