Regina v Coates and Murphy - [2002] NSWCCA 481

No judgment structure available for this case.

Reported Decision:
(2002) 136 A Cim R 252

New South Wales

Court of Criminal Appeal

CITATION: Regina v Coates & Murphy [2002] NSWCCA 481

FILE NUMBER(S): CCA 60120/02; 60122/02

HEARING DATE(S): 30 October 2002

JUDGMENT DATE:
9 December 2002

PARTIES :

Regina v Julia Deborah Coates
Regina v Glyn Anthony Murphy

JUDGMENT OF: Beazley JA at 1; Sperling J at 2; Carruthers AJ at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/21/1082
01/21/1081

LOWER COURT JUDICIAL
OFFICER : His Honour Judge Graham

COUNSEL : Appellant Coates - R.A. Bonnici
Appellant Murphy - Unrepresented
Crown - L. Lamprati

SOLICITORS: Appellant Coates - D.J. Humphreys
Appellant Murphy - David H. Cohen & Co
Crown - S.E. O'Connor

CATCHWORDS: Conviction appeals - conspiracy to manufacture methylamphetamine - whether adequate directions of law relating to elements of conspiracy - whether irreperable prejudice caused to remaining accused when one alleged co-conspirator pleaded guilty at the conclusion of the Crown case - whether verdicts unsafe and unstisfactory.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985, ss 26, 24(1)

CASES CITED:
Chamberlain v The Queen (1985) 153 CLR 521
Nirta v The Queen (1938) 79 FLR 190
Tripodi v The Queen (1960-1961) 104 CLR 1
Weeder v The Queen [1979] Qd R 278

DECISION: In both cases: conviction appeal dismissed; leave to appeal against sentence granted and appeal dismissed.

60120/02
60122/02

BEAZLEY JA
SPERLING J
CARRUTHERS AJ
9 December 2002

REGINA v Julia Deborah COATES

REGINA v Glyn Anthony MURPHY

Judgment

1 BEAZLEY JA: I agree with Carruthers AJ.

2 SPERLING J: I agree with Carruthers AJ.

3 CARRUTHERS AJ: Julia Deborah Coates and Glyn Anthony Murphy appeal against their convictions at the District Court, Parramatta on 2 November 2001 upon one count of conspiracy to manufacture a prohibited drug (methylamphetamine) in an amount not less than the commercial quantity, contrary to the Drug Misuse and Trafficking Act 1985, ss 26, 24(1). (A commercial quantity of methylamphetamine is 250g.)

4 On 8 March 2002 each of the appellants was sentenced to imprisonment for a term of three years to commence on 8 March 2002 and to expire on 7 March 2005 with a non-parole period of eighteen months to commence on 8 March 2002 and to expire on 7 September 2003.

5 On the hearing of the appeal Miss Coates was represented by Mr Bonnici of counsel and Mr Murphy was unrepresented.

6 Mr Murphy informed the Court that he did not wish to say anything with regard to his conviction appeal. The Court heard, however, full submissions from Mr Bonnici with regard to Miss Coates’ appeal and, of course, submissions on behalf of the Crown by Mr Lamprati. It is convenient then to deal firstly with the appeal against conviction by Miss Coates.

7 On 17 October 2001 Miss Coates, together with John Tudor Williams, Anthony Murphy and Wayne Robert Kerr were arraigned before Graham DCJ and a jury of twelve at the Parramatta District Court upon an indictment containing one count in the following terms:

“For that they between 30 January 2000 and 30 March 2000 at Luddenham in the State of New South Wales did conspire together and amongst themselves to manufacture a prohibited drug, namely methylamphetamine in an amount being not less than the large commercial quantity applicable to that drug.”

8 Each accused pleaded not guilty and was separately represented by counsel. Mr Kerr was convicted but on 8 April abandoned his appeal.

9 During the course of the trial, his Honour allowed the Crown to withdraw the allegation of a “large” commercial quantity following evidence given by an analytical chemist, Mr Ballard, that the amount of pure methylamphetamine which could be manufactured from the chemicals seized by the police in the matter (calculated on a conservative basis) was approximately 739 grams. His Honour delivered an interlocutory judgment in this respect on 29 October 2001.

10 On 30 October 2001 the stage had been reached where the Crown had called all its evidence. His Honour determined that this was a convenient time to consider the state of the evidence, in particular to consider and identify the evidence available against each of the accused individually, and then to consider to what extent evidence admissible against one accused would be admissible against the other accused pursuant to the co-conspirators rule.

11 After his Honour had delivered a judgment in that respect the Court was informed by counsel for Mr Williams that he proposed to change his plea to that of guilty.

12 The Crown then applied to amend the indictment to the extent that it was necessary to accommodate this change in the plea and the remaining co-accused sought a discharge of the jury. This application was rejected.

13 The amended indictment charged that the three remaining accused:

“Between 30 January 2000 and 30 March 2000 at Luddenham and other places in the State of New South Wales, with John Tudor Williams did conspire together and amongst themselves, to manufacture a prohibited drug, namely methylamphetamine, in an amount being not less than the commercial quantity applicable to that drug.”

14 Miss Coates gave evidence before the jury. Her counsel called no further evidence. Neither Mr Murphy nor Mr Kerr gave evidence or called evidence in the defence case.

15 It is convenient at this stage to set out in summary form the Crown case with substantial reliance upon the summary provided by the Crown for the purposes of this appeal.

The Crown case may be summarised as follows:

16 Messrs Williams and Kerr and a person not charged in relation to the matter, Tracy Zackous, were apprehended by police in a Mitsubishi Verada WKB-094 at the intersection of Camden Valley Way and The Northern Road, Narellan on the early evening of Wednesday, 29 March 2000. Police photographed the following items found in the boot of the vehicle.

17 The powder was analysed and found to consist of 433.5g of 21.3% pseudoephedrine and 1281g of 21.1% pseudoephedrine, respectively, consistent with the powder having come from Sudafed tablets. The 176 tablets marked “S7A” contained pseudoephedrine and were consistent with Sudafed tablets.

18 Later during the evening of 29 March 2000, police executed a search warrant on premises described during the Crown case as 33A Luddenham Road, Luddenham or Orchard Hills. Miss Coates was apprehended as she left the front of the house and Mr Murphy was apprehended as he left the rear.

19 Mr Ballard, a chemist employed by the Australian Government Analytical Laboratories, attended the subject premises on 29-30 March 2000, and, after careful inspection, he formed the opinion that the premises had been used for the manufacture of methylamphetamine, by a process of reduction of pseudoephedrine involving the use of hypophosphorus acid and iodine.

20 His opinion was based on the following evidence:

21 The total amount of pure methylamphetamine that could be produced, on a conservative estimate, from the total pseudoephedrine base chemicals seized by the police was approximately 739g.

22 Empty Sudafed boxes were found in an old motor vehicle located at the rear of the subject premises.

23 The Crown led evidence that an organisation named Test Tube Laboratory Supplies situated at Harris Street, Ultimo, raised a cash invoice for a range of items of laboratory equipment for $661.80. The invoice was later located by police in the front bedroom of the subject premises. The invoice number is 4405 and is dated 25 February 2000. It was for a cash sale, collected and paid for in full, with no purchaser’s name recorded.

24 Mr Revelman, the proprietor of the business, gave evidence that on 31 January 2000 and 25 February 2000 respectively, Mr Brown, a member of his staff filled out “End User Declaration” forms for the purchase of two 5 kg packets of “Iodine BP/USP”, to which were attached photocopies of Miss Coates’ driver’s licence. The invoice number for the purchase on 25 February 2000 was 4404, which is, of course, one before the invoice for the scientific equipment purchased for cash, also on 25 February 2000. Mr Brown was not called as a witness at the trial.

25 Miss Coates signed each of the End User Declaration forms under the following words “I ... hereby declare that the above chemical product(s) will not be used for the manufacture of illicit drugs”.

26 It was common ground that Miss Coates had driven Mr Williams to Test Tube Laboratory Supplies on 31 January and 25 February 2000.

27 In a container shed at the rear of the subject premises police located some handwritten notes which, in general terms, described chemical processes consistent with the reduction of pseudoephedrine to methylamphetamine.

28 Miss Coates took part in an ERISP at the Penrith Police Station on the night of 29 March 2000. In the interview she confirmed that she lived at the premises with Mr Murphy.

29 She said that a friend whom she knew only as “Twig” [the co-accused Williams] “stays with us every now and again ... but does not actually live there”. She denied involvement in the manufacture of prohibited drugs.

30 Mr Dixon, a pharmacist and the proprietor of a pharmacy at 118 Station Street, Wentworthville, gave evidence that his shop was broken into some time between 11 pm and 1.30 am on 21-22 March 2000. Access was gained by a front window being removed from its frame. Some Sudafed packets were apparently taken from the “Cold and Flu” display area in the shop and approximately 75 packets, each containing 30 Sudafed tablets, and approximately 75 packets, each containing 60 Sudafed tablets, were stolen from the rear storage area of the shop.

31 The Crown led fingerprint evidence linking Mr Kerr with the above robbery. Eleven of the empty Sudafed boxes which were found by police in the motor vehicle located at the rear of the subject premises had attached to them price stickers from the Wentworthville Pharmacy which had been robbed.

32 The Crown Prosecutor specifically relied on the following answers by Miss Coates during the course of her cross-examination:

Aspects of Miss Coates’ evidence in chief.

33 This Court was referred to the following aspects of Miss Coates’ evidence in chief. She lived at 33R Luddenham Road, St Marys (which was the correct address for the premises referred to in the Crown case as 33A Luddenham Road, Luddenham or Orchard Hills). She moved into the premises with Mr Murphy in around September 1999. The house was in a poor state of repair when they moved in, however they had started to renovate it and she had commenced painting the house.

34 She worked as a console operator with Mobil Quix doing shift work. She was working in this job between 1 January 2000 and 30 March 2000.

35 She had never been involved in any prior offences involving illicit drugs.

36 She did not conspire or agree with any of her co-accused to manufacture methylamphetamine.

37 She and Mr Murphy fought continually. At times she would not go home and, at times, he would not be at home for periods. She believed he was having an affair. She would spend time at her mother’s home. Her mother suffered from ill-health, including strokes and cancer, and passed away in September 2000. She had assisted her mother with medical appointments and shopping.

38 Specifically, during the period 1 January 2000 to 30 March 2000, she was away from the house for about a week with a friend. They attended a coronial inquest in Port Macquarie between about 4-13 March, 2000.

39 Mr Williams, whom she knew as “Twig”, lived in the front bedroom of the subject premises. She had not seen him for about 4-6 days before the police executed the search warrant on 29 March 2000. He had moved in 4-6 months beforehand. He occupied the front bedroom, which had a lock. There was no way of entering the room without a key and she did not have a key.

40 Mr Williams asked her to drive him into Sydney and to do some shopping with him on the two occasions she signed the “End User Declaration” documents. He had a car but not a licence. On the first occasion, he said “he had to pick some shopping up”. They went through a back door, a man at the premises asked her for a licence and she produced her driver’s licence which he hotostatted. She did not read the End User Declaration carefully before signing it. On the second occasion she signed the declaration she said, “I did take a bit more time this time to sort of look at it” and then I said to Twig “See ya, I’m going over the pub”..

41 In fact she said that on each occasion, after signing the declaration she went to a nearby pub where Williams met her after a time and asked if she was ready to go.

42 She had never seen the invoice for laboratory equipment found in Mr Williams’ bedroom.

43 She had never seen the handwritten notes on methylamphetamine manufacture found in the container shed at the rear of the premises.

44 She had never met Mr Kerr and did not know anything about him.

45 In relation to the sunroom, where police found (inter alia) iodine and scientific glassware, access was by a doorway. The room was full of junk. The only iodine she was aware of was a small bottle in the medicine cabinet. She did not recall seeing other containers of iodine.

46 The only discussion she had with Mr Murphy about the items in the sunroom was “a very short, quick” conversation that occurred one Friday night after she had removed his belongings from their bedroom. This was after she had ascertained that he was having an affair. He came home with his eleven year old son, picked up his belongings and headed towards the sunroom. He turned around and said “Ay, what’s all this shit – what’s all this shit out here?”. She said, “What shit?” He said, “All this glassware, all these boxes and shit?”. She said, “I don’t, (sic) how would I know, I don’t know”. She then went to the bedroom and did not discuss it further with him.

47 Miss Coates said that when the police arrived on 29 March 2000, she was on the telephone speaking to a girlfriend.

His Honour’s directions on the factual issues.

48 Against that brief survey of the evidence, it is convenient to set out the relevant directions which his Honour gave the jury with respect to the evidence primarily available to support the Crown case against Miss Coates and the evidence available to support her own case in defence.

“So far as the accused, Julia Coates, is concerned, the Crown case is that she was not only aware of an agreement to manufacture more than two hundred and fifty grams of methylamphetamine, but that she participated in it intentionally and particularly in two ways, one by providing premises in which the manufacture could take place, and by assisting in the purchase of chemicals and other equipment needed for the process by which that drug was to be manufactured. There are a number of circumstances upon which the Crown relies in support of its case. The evidence admissible against Miss Coates which you must take into account in considering her case is the evidence that she lived in the house at Luddenham throughout the period specified in the indictment. In that regard, of course, you will bear in mind the evidence which has been given as to the extent of her occupation in terms of time and also in terms of how much [of] the house she had access to or went into and at what times. But the Crown case is that she was living in the house throughout the period and was one of the occupants of the house. That she did so in company with her co-accused, Mr Murphy, although, again, you would take into account her evidence in that regard as to the state of the relationship and the extent to which they were on close terms in assessing the significance of that circumstance. Not only was the accused living in the house with Mr Murphy but, also, she was living in a house where, according to the Crown evidence, you are invited to conclude that methylamphetamine had been produced. I will not go into the detail of it, but the Crown relies on the evidence of Mr Ballard as to his discovery of traces of methylamphetamine in places in the house which would be consistent with the process of cooking, if it can be described that way, of methylamphetamine; for example, places where it is not likely that the traces got there by spillage, but got there during the process of refining or extracting methylamphetamine; for example, one of the swabs he took was underneath a shelf, in other words, where something had risen up and adhered to the underneath surface of the shelf.

So the Crown case is that you would conclude, on that evidence and indeed on other evidence which has been lead (sic), that methylamphetamine had been produced in that house. Also, throughout the period Miss Coates, the Crown case is, was living in the house where there was equipment and chemicals from which methylamphetamine could be produced. On the basis of what Mr Ballard saw there, he was able to say that that was equipment and there were chemicals from which methylamphetamine could be produced. Again, I do not think it is necessary for me to go through the evidence in any detail as to that. There was no significant challenge, you might think, to his opinion as to that issue. The real issue which has been raised in relation to the previous production and the presence of equipment was what connection or knowledge Miss Coates had with it or of it.

The second area of circumstances relied upon against Miss Coates relates to her involvement in the purchase of iodine at The Test Tube Factory at Ultimo at the end of January and towards the end of February 2000, in circumstances where the Crown relies, particularly, on the contents of the declaration which, it is submitted, would clearly bring home to a person signing it, the purpose of the declaration that is, the declaration to the effect that the purchaser does not propose to use the product in the manufacture of illicit drugs. Iodine, in each case, is one of the substances which is used in that process of extracting methylamphetamine from pseudoephedrine, again as described in some detail by Mr Ballard.

The crown’s case is that either Miss Coates bought the iodine herself, or assisted Mr Williams in the purchase of the iodine. As you will recall, Mr Revelman, who is the proprietor of the business, was called. He gave evidence about the practice of the business, how he went about obtaining information and preparing the documents in relation to a sale of items and indicated that, from the handwriting, the transactions in each case here appeared to be transactions involving his employee, Mr Brown.

Now Mr Brown was not called to give evidence so there is no direct evidence from him as to whether Mr Williams was present, whether Miss Coates was the sole participant in the transaction, whether Miss Coates stayed for the whole of the transaction or left as she says she did. So, in respect of that area of evidence, you have Mr Revelman’s evidence as to the general practice. But it is not disputed by Miss Coates that she was there on each occasion and that, on each occasion, she produced her licence, it was photocopied and the original returned to her, and that, on each occasion, she did sign the declaration.

The question really raised in relation to those issues is the extent of her involvement in those transactions and the purpose of her involvement. The prosecution case is that, looking at all of the circumstances, you will conclude beyond reasonable doubt that her participation in the purchases was as part of her participation, a knowing and intentional participation in the agreement alleged in the charge. Miss Coates simply says that she was assisting a friend and co-occupant of the house and that really she thought very little of it until the second occasion when she made some inquiry but it was deflected by Mr Williams and she chose not to pursue it any further. In other words, her account would throw doubt on the prosecution’s submission that she was participating as part of her knowing and intentional participation in an agreement, which included Mr Williams and others, to manufacture at least two hundred and fifty grams of methylamphetamine.

Thirdly, the prosecution relies also on an inference that the invoice found at the house relating to the purchase of glassware from The Test Tube Factory was one in which Miss Coates either was the person who made the transaction or that she was present assisting in the purchase of that glassware and other items in the invoice. Miss Coates says she knows nothing about it and the strength of the inference really depends on the Crown’s argument on the sequential number of the invoice in relation to other invoices in the case.

The other evidence admissible against Miss Coates relates to what she told the police in her record of interview. As I said to you at the time, what she said to the police was available by (sic) insofar as it might assist the prosecution case and insofar as it might assist her case. I remind you that what she said to the police in that interview is evidence only available in relation to the case of Miss Coates.
Essentially, and I will not go through the detail of it again, essentially Miss Coates denied any knowledge of any manufacturing of amphetamines or of any involvement in it on her part. She said, effectively, that she knew nothing about what was going on and that she had no access to Mr Williams’ room, which was locked, and she had no means of access to it. Essentially, in her evidence before you, she repeated much of that material. And so, whilst the interview may have contained some admissions about the presence of Mr Williams at the house, in general terms the interview conducted on the evening of her arrest at the end of March last year contains little of real assistance to the prosecution in establishing its case. The prosecution case is that you would simply reject the account given by Miss Coates there, and indeed in her evidence before you, suggesting that it was really an attempt, on her part, simply to distance herself from what she must have known was happening at the premises and an attempt to simply deflect and avoid the reality of what the Crown suggests she must have been aware of. But, of course, as I said to you at the time, it is a matter for you how you weigh up what is said in the course of the interview. It is available to be taken into account insofar as it assists the prosecution, and insofar as it assists the accused. You are entitled to accept everything that Miss Coates said in that interview, or to reject everything she said. You are entitled to accept parts of what she said and to reject other parts.” (S/U 17-23)

His Honour’s directions on the co-conspirators rule.

49 His Honour then explained to the jury that the Crown also had available to it, as part of the evidence in the case against Miss Coates, the relevant conduct and statements of each of the other accused. His Honour gave the jury an appropriate direction in relation to the co-conspirators rule: see Tripodi v The Queen (1960-1961) 104 CLR 1.

50 His Honour explained to the jury that such evidence was available for two purposes, that is to assist in establishing whether there was an agreement of the type outlined by the Crown, and secondly, as evidence of the participation of Miss Coates in that conspiracy. His Honour emphasised that the jury needed to scrutinise evidence admitted under the rule with care and be careful not to too readily conclude that Miss Coates was guilty merely because of the conduct of other persons.

51 His Honour then explained aspects of the evidence which were available in relation to the conduct or acts of Mr Williams, Mr Kerr and Mr Murphy as against Miss Coates with the relevant exceptions to the evidence available under the co-conspirators rule identified.

52 The relevant portion of the summing-up is set out hereunder:

“In relation to the conduct or acts of Mr Williams, you are entitled to take into account, as part of the case against Miss Coates in the way I have described, evidence that he was the occupant of that front bedroom in the house at the (sic) Luddenham occupied by Miss Coates and Mr Murphy, as well as by Mr Williams, and in that front bedroom which was, you might think, on the evidence, Mr Williams’ bedroom, were found two containers which on analysis were found to contain methylamphetamine of something like seventy seven per cent purity. There is no evidence as to how that methylamphetamine had been refined or extracted, but the Crown suggests that the fact that, in Mr Williams’ room were those containers with methylamphetamine of that purity is a significant matter. It is of general significance as to the existence of the conspiracy, but also evidence, you might think, as to the nature and extent of the conspiracy in that it might suggest some capacity on the part of whoever it was [that] had extracted that methylamphetamine to produce methylamphetamine of seventy seven per cent purity. As I have said, there is no evidence as to how that was extracted, whether it was from pseudoephedrine by the type of method which Mr Ballard was able to discern from what equipment and chemicals were at the premises, or by some other method. The Crown, as I have said, submits that the conservative estimate of sixty per cent extraction from pseudoephedrine would produce seven hundred and thirty-nine grams of methylamphetamine and invites you to consider the seventy seven per cent analysis of what was found in Mr Williams’ bedroom as some indication of the extent of the capacity of those involved in the conspiracy to produce or extract methylamphetamine from some source.

As I have said, in this case, the evidence is silent as to what the base was and what method was used, but, significantly, the Crown relies upon the fact that Mr Williams occupied that front bedroom and in that bedroom were containers with methylamphetamine in them. And that evidence is evidence available to you in the case of Miss Coates in the way that I have described.

Similarly, and subject to the same directions, evidence of Mr Williams’ fingerprints on glassware in the sunroom and item B68 which had traces of methylamphetamine in it, according to Mr Ballard’s certificate. His fingerprint on The Test Tube Factory catalogue found in his room, A20, the business card, A11, and the Utech (?) instruments box.

Finally, Mr Williams’ (sic), in the vehicle stopped at Narellan, apparently about to turn right into The Northern Road, which, the Crown suggests, would lead to Luddenham, that car containing, in the boot, the Sudafed tablets and powder, which have been referred to in the evidence, is a further piece of evidence relating to Mr Williams which is available, in the manner I have described, in the case of Miss Coates. So far as the evidence relating to Mr Kerr is concerned, that is available on the same basis against Miss Coates as I have outlined. That evidence is his obtaining and provision of Sudafed from the 22 March event at the pharmacy, though the Crown does not rely upon any involvement of Mr Kerr in the break-in itself. It is the obtaining of Sudafed from that event that the Crown relies upon in the case relating to Miss Coates. The basis of that, if I can outline it to you, is that it is not part of the Crown case that the members of the conspiracy agreed that Mr Kerr would obtain the Sudafed in any particular manner or by any particular means, rather, it is the obtaining by him of Sudafed, which the Crown says came from that pharmacy and his provision of it to the premises at Luddenham, which is available in the case of Miss Coates.

Secondly, the finding at the property at Luddenham of the empty Sudafed packets in the car which Miss Coates said was Mr Williams’ car, including packets which bore the Day and Night pharmacy price tags. And thirdly, of course, Mr Williams’ presence as the driver in the car on 29 March with the Sudafed tablets and powder in the boot.

Mr Kerr was interviewed about the break-in at the pharmacy. His record of interview in relation to that, I think I made clear at the time, is evidence only against him and is not evidence which you can take into account in relation to the case of Miss Coates.

So far as Mr Murphy is concerned, you are entitled to take into account the fact that he was living in the house with Miss Coates throughout the relevant period, in premises where methylamphetamine had been produced, according to the Crown, where there was equipment and chemicals from which it could in future be produced. His fingerprint on the beaker, item B67, with the methylamphetamine traces in it, and thirdly, the document in the shipping container, which the Crown suggests could be associated with Mr Murphy. Those items can be taken into account on the basis and for the purposes I outlined earlier. Again, his record of interview may not be taken into account as evidence in the case of Miss Coates.
Finally, of course, you must take into account the evidence given by Miss Coates.” (S/U 26-30)

53 His Honour then dealt with the matters raised by Miss Coates by way of evidence in defence and other material which, it was argued by her counsel, supported her defence and undermined the integrity of the Crown case.

54 No relevant redirections were sought by counsel at the conclusion of the summing-up.

Mr Kerr’s involvement.

55 The Crown case against Mr Kerr was confined to proof that he was the provider of the Sudafed obtained from the Wentworthville Pharmacy break-in. Further, that he was involved in the possession of the Sudafed in the boot of the car on 29 March 2000.

Grounds of appeal.

56 Six grounds of appeal by Miss Coates against conviction have been filed. The first two grounds of appeal contend, it may be said compendiously, that on the evidence available against Miss Coates, the jury ought to have acquitted her and, accordingly, there has been a miscarriage of justice. However, before dealing with those two grounds of appeal, it is convenient to deal with the third ground which is as follows:

“That his Honour failed to fully and properly instruct the jury on the requisite and kind of knowledge that the appellant must have had before the jury could have found her guilty.”

57 It was contended that the judgment of Jenkinson J in Nirta v The Queen (1938) 79 FLR 190 at 207, is authority for the following proposition:

“The necessary criminal state of mind is the intention or agreement to execute the illegal elements in the conduct contemplated by the agreement in the knowledge of those facts which render the conduct illegal.”

58 This is, however, a misconception. Relevantly, at p 207 Jenkinson J was quoting from an aide-memoire given by the trial judge to the jury in the conspiracy case under appeal. The complete passage which his Honour quoted is:

59 The second sentence is of course necessary to complete the proposition contained in the first sentence. The following paragraph (e) of the aide memoire should be read with paragraph (d):

“(e) Conspiracy may be proved or inferred from proven or inferred knowledge of the criminal purpose and by proven or inferred general co-operation in advancing its object.”

60 In any event, it was submitted that the only real attempt made by Graham DCJ to specify the kind of knowledge that is needed to satisfy this test, and for what purpose, was in the following passages (at pages 4 and 5 of the summing-up) when his Honour was dealing with Miss Coates’ state of mind:

“So the Crown says you look at the surrounding circumstances. You look at what she did, and you look at the surrounding circumstances to ascertain what her state of mind was at the time she did those acts. The Crown’s basic proposition being that her intention in doing those acts was to participate in the unlawful agreement to manufacture not less than 250 grams of methylamphetamine.”

61 And further:

“Miss Coates points to further circumstances, through her counsel, and says, in her own evidence, what her state of mind was; what she knew about what was happening and what her purpose or intention was in assisting Mr Williams in the transactions at the Test Tube Factory. And she told you also about her state of knowledge of those things. So each of those, that is, by looking at the circumstances and the conduct of the accused, and by looking at what she says about her state of mind, are matters which are relevant to be taken into account in assessing what her intention or state of mind was at the particular time that is, at the time she was present during those transactions. Sometimes a person’s acts may themselves provide the most convincing evidence of that person’s intention or state of mind.”

62 It was submitted that what was lacking was a direction that Miss Coates must have had actual knowledge of what Mr Williams was doing and that it was illegal, and of course, that she was actually participating in it. For example, it was argued that Miss Coates did not know and had never met Mr Kerr and knew nothing of the break in at the pharmacy.

63 This submission overlooks other aspects of his Honour’s directions to the jury, which were quoted earlier in this judgment.

64 It was effectively common ground at the trial that the illegal manufacture of methylamphetamine had been carried on at the subject premises. However, Miss Coates denied any knowledge of such illegal conduct.

65 Thus, his Honour said to the jury:

“The real issue which has been raised in relation to the previous production and the presence of equipment was what connection or knowledge Miss Coates had with or of it.” (S/U 19)

66 And later:

“The prosecution case is that, looking at all of the circumstances you will conclude beyond reasonable doubt that her participation in the purchases was as part of her participation, a knowing and intentional participation in the agreement alleged in the charge.” (S/U 21)

67 And finally:

“Essentially, and I will not go through the detail of it again, essentially Miss Coates denied any knowledge of any manufacturing of amphetamines or of any involvement in it or on her part.” (S/U 22)

68 It is perfectly true that Miss Coates denied any knowledge of illegal conduct by her alleged co-conspirators but it is clear from what has already been said that there was ample circumstantial evidence upon which the jury could conclude that she had the necessary criminal state of mind and the knowledge of the relevant facts which rendered the conduct of which she was aware illegal.

69 During argument on this ground, the question was raised whether the Crown was required to prove only that Miss Coates was aware that an illegal drug was being manufactured or that specifically methylamphetamine was being manufactured on the premises.

70 The Crown has accepted before this Court that at the trial the prosecution alleged from beginning to end that the conspiracy was to manufacture methylamphetamine. Whilst the Crown may have been entitled to allege that Miss Coates conspired to manufacture a prohibited drug, leaving open the possibility that she did not know what drug was to be manufactured, the Crown specified methylamphetamine as the drug to be manufactured.

71 The Crown has in its submissions before this Court carefully identified those sections of the summing-up in which his Honour presented the relevant issues to the jury in terms indicating that the alleged conspiracy was to the manufacture of a commercial quantity of methylamphetamine. It is not necessary to record those sections of the summing-up here. In my view this ground lacks validity. Rule 4 applies and I would refuse Miss Coates leave to argue this ground.

72 The fourth ground of appeal is in the following terms:

“That his Honour in directing the jury on the use to be made of the acts of the other co-accused as against the Appellant erroneously failed to properly distinguish between the evidence required to prove beyond reasonable doubt that an agreement in the form of a conspiracy existed as distinct from the facts needed to be established beyond reasonable doubt that the particular Appellant was party to the conspiracy charged.”

73 With regard to this ground of appeal, it was contended that in the summing-up his Honour mainly concentrated on the evidence of each of the co-accused which could be used against the others, pursuant to the co-conspirators rule.

74 Reference was made to the direction at p 23 of the summing-up that evidence of the conduct and statements of others can be used for two purposes:

(ii) whether a specific co-accused participated in it.

75 It was submitted that his Honour could have erroneously left the jury with the impression that there is only one test with two related purposes. It was submitted that with such “delicate and highly prejudicial evidence”, his Honour should have directed the jury that the tests are twofold, namely:

76 It was submitted that this precise twofold direction should have been given because even if Miss Coates suspected there was an illegal agreement in the terms of paragraph (i) above, the jury could not be satisfied beyond reasonable doubt, in the light of her explanations, that she was a party to the suspected conspiracy.

77 Thus, it was argued that his Honour should not have allowed the co-conspirators rule to be used against her because of the prejudicial effect of such evidence which in the circumstances outweighed its probative value.

78 Further, it was argued that the use of the co-conspirators rule may have also contributed to Miss Coates being attributed with far more knowledge than she actually had, as a matter of permissible evidence, in any illegality that was going on.

79 When one looks at the relevant evidence and the overall directions which his Honour gave in relation to conspiracy, which in my respectful view, were impeccable, there is no substance in the submissions which have been put.

80 If I may say so, the submissions which have been made under this particular ground and the same may be said of other grounds, fail to appreciate that it was open to the jury to reject Miss Coates’ evidence. It was clearly open to them to assess her explanations as lacking credibility when considered in light of the objective evidence led by the Crown.

81 Again this is a ground of appeal to which rule 4 relates and I would refuse the appellant leave to argue this ground.

82 The fifth ground of appeal is in the following terms:

“That his Honour erred in the exercise of his discretion in refusing the joint defence application to discharge the jury when the co-accused John Williams, pleaded guilty in the absence of the jury and the indictment was accordingly amended, in that unfairness, particularly to this appellant, did occur.”

83 It was submitted that in some cases, a co-accused “disappearing” from the dock, may not cause much prejudice to the remaining accused. However, in a case of conspiracy, and particularly one based wholly and squarely on circumstantial evidence, no amount of warning by the judge, it was submitted, could totally eliminate some of the potential prejudice and speculation.

84 In the particular case of Miss Coates, it was not just a matter of prejudice, it was submitted, but one of unfairness and so much so, that she is deserving of a new trial, unaccompanied for the whole of the prosecution case by the inclusion in the indictment of Mr Williams. The Crown evidence linked Miss Coates closely to Mr Williams, particularly as they were both intimately involved in the purchase of the iodine and, to a lesser extent, the laboratory equipment. Thus, when, without being given any reason, the jury were informed that Mr Williams was no longer involved in the trial, the inevitable inference was that he had changed his plea to guilty, and by reason of Miss Coates’ close involvement with him in critical aspects of the Crown case, she too, the jury would infer was guilty. This situation was exacerbated, it was argued, by the Crown invoking the co-conspirators rule which had attracted, in the case against Miss Coates, considerable inculpatory evidence.

85 The learned trial judge was fully seized of all the nuances of this trial by the time that Mr Williams informed the Court that he intended to change his plea. It is apparent from his interlocutory judgment rejecting the application to discharge the jury that his Honour carefully considered the possibility of any prejudice flowing to the remaining accused after Mr Williams’ departure. His Honour could see none.

86 His Honour gave the jury very careful directions directed to ensuring that the remaining accused suffered no prejudice as a result of Mr Williams’ departure from the courtroom. His Honour stressed the fact that they must not speculate about the reason for his absence and stressed the important nature of that direction.

87 By this stage of the trial, two weeks of jury time had been occupied and considerable evidence had been led. There was therefore a distinct public interest in maintaining the trial process, if at all possible, without prejudice to the remaining accused. I am unable to accept that Miss Coates would have suffered any prejudice by reason of the events which occurred in this regard.

88 In my view it has not been demonstrated by Miss Coates that his Honour erred in the exercise of the discretion, which he undoubtedly had, to allow the appeal to proceed despite the plea of guilty being entered by Mr Williams at such a late stage in the trial. I would reject the fifth ground of appeal.

89 I turn then to the first and second grounds of appeal which are in the following terms:

“1. That the verdict of guilty against the Appellant is unsafe and unsatisfactory in that no jury acting on the directions as to favourable inferences to be drawn from circumstantial evidence could have been satisfied beyond reasonable doubt of the guilt of the accused.

2. That on the overall state and nature of the evidence against the Appellant for the charge of conspiring to manufacture methylamphetamine there was a miscarriage of justice.”

90 In support of these grounds counsel for Miss Coates relied heavily upon the denial in evidence by Miss Coates, and in her ERISP, of any knowledge that the manufacture of methylamphetamine was being undertaken (as it undoubtedly was) in her premises. Further that she had given adequate explanations for what was contended to be evidence inculpating her in the conspiracy.

91 In summary it was contended that the highest point of the prosecution case, as it was presented before the jury and as it stood on appeal, is that of suspicion as against Miss Coates, or maybe naivety and stupidity, but not one of proving the requisite criminal knowledge or intent.

92 However, as Gibb CJ and Mason J pointed out in Chamberlain v The Queen (1985) 153 CLR 521 at 535, evidence may have a cumulative effect and it is the duty of the jury to consider all the facts together at the conclusion of the case. It is not appropriate to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”: they should consider the accumulation of the evidence: see Weeder v The Queen [1979] Qd R 278 at 289.

93 In the instant case, when this injunction is applied, the Crown case against Miss Coates can be seen to be a powerful one indeed, particularly in the light of the co-conspirators rule. A particularly valuable piece of evidence led by the Crown was a video recording of the interior and exterior of the Luddenham premises taken on the evening of the arrest and the following morning. Still photographs taken from the video of incriminating material were also in evidence.

94 It is sufficient to say that the subject premises consist of an old fibro cottage located well away from other residences. The interior is small and the rooms interconnected in such a fashion that only minimal privacy could exist when more than one person was in the house. Of particular moment is the fact that the sunroom is connected to the kitchen. There is no door between the two rooms, only a curtain which can easily be pushed aside. The video demonstrates that the small sunroom was stocked with laboratory type utensils positioned in such a way that they were obviously being used in a manufacturing process. A large number of utensils containing chemicals and the like, appropriate to the manufacture of methylamphetamine, was clearly visible.

95 Miss Coates’ assertions of ignorance collapse under this objective evidence together with her participation in the purchase, on two occasions, of large quantities of iodine.

96 I would reject the first and second grounds of appeal.

97 I would propose that Miss Coates’ appeal against conviction be dismissed.

98 Insofar as Mr Murphy’s appeal is concerned, I have already indicated that he did not wish to make any submissions to this Court. No written submissions have been filed on his behalf. Mr Murphy did not give evidence at the trial. A consideration of the whole of the evidence before the jury makes it abundantly clear that no question can arise as to his guilt.

99 Mr Murphy also took part in an ERISP at the Penrith Police Station on the night of 29 March 2000. In the interview he was asked if he saw anything in relation to the production of amphetamines. He said, “I think youse will make up your own minds, you know like, I can’t deny what’s been going on there. And, but I can’t sort of throw the thrust of guilt on anyone but myself through knowing”. Later in the interview the following exchange took place:

100 Fingerprint analysis of items located inside the subject premises revealed Mr Murphy’s left middle fingerprint on a glass beaker.

101 Mr Lamprati on behalf of the Crown has, in written submissions, identified critical aspects of the evidence inculpatory of Mr Murphy. It is not necessary to note the detail of those submissions. I would propose that Mr Murphy’s appeal against conviction be dismissed.

Sentence.

102 I turn then to Miss Coates’ application for leave to appeal against her sentence. Miss Coates was born on 3 November 1959 and, as I have indicated, she was at the date of the offence a service station shift worker. She has no relevant prior convictions.

103 Evidence was placed before his Honour that she was emotionally vulnerable during the period covered by the indictment because of the illness of her mother and the fact that her then partner, Mr Murphy, was being unfaithful to her.

104 All the relative subjective features were considered by his Honour who nevertheless felt that the gravity of the offence left him with no option but to impose a full time custodial sentence.

105 Bearing in mind that the subject offence is indeed a serious one and carries a maximum penalty of twenty years imprisonment and/or a fine of $385,000 it is quite impossible, in my view, to conclude, balancing the objective and subjective circumstances, that the sentence imposed by his Honour was outside the discretionary range available to him. The fact that the non-parole period was reduced to 50% of the head sentence was particularly favourable to Miss Coates.

106 In view of Miss Coates’ prior relatively good record I would grant her leave to appeal against sentence but dismiss the appeal.

107 Mr Murphy did not address the Court on sentence. He was born on 16 April 1962 and was unemployed at the time of his arrest. He has prior convictions including drug offences. However, he had not received a full time custodial sentence prior to the commission of the subject offence.

108 Apart from the fact that Mr Murphy was unemployed at the time of his arrest, he had up until then a good employment record. He told the Probation and Parole Service that he had commenced using amphetamines at the age of twenty-four but had not used them intravenously.

109 In all the circumstances I am unable to conclude that Mr Murphy’s sentence was outside the discretionary range available to his Honour, particularly bearing in mind that the non-parole period which his Honour fixed was, as in the case of Miss Coates, only 50% of the head sentence. I would grant Mr Murphy leave to appeal against sentence but dismiss the appeal.

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Citations

Regina v Coates and Murphy [2002] NSWCCA 481

Most Recent Citation

Humphries v The Queen [2015] NSWCCA 319

Cases Citing This Decision

1

Humphries v The Queen [2015] NSWCCA 319

Cases Cited

2

Statutory Material Cited

1

Chamberlain v The Queen (No 2) [1984] HCA 7

Nirta v The Queen [1983] FCA 360

CITATION:	Regina v Coates & Murphy [2002] NSWCCA 481
FILE NUMBER(S):	CCA 60120/02; 60122/02
HEARING DATE(S):	30 October 2002
JUDGMENT DATE:	9 December 2002
PARTIES :	Regina v Julia Deborah Coates Regina v Glyn Anthony Murphy
JUDGMENT OF:	Beazley JA at 1; Sperling J at 2; Carruthers AJ at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/1082 01/21/1081
LOWER COURT JUDICIAL OFFICER :	His Honour Judge Graham

COUNSEL :	Appellant Coates - R.A. Bonnici Appellant Murphy - Unrepresented Crown - L. Lamprati
SOLICITORS:	Appellant Coates - D.J. Humphreys Appellant Murphy - David H. Cohen & Co Crown - S.E. O'Connor
CATCHWORDS:	Conviction appeals - conspiracy to manufacture methylamphetamine - whether adequate directions of law relating to elements of conspiracy - whether irreperable prejudice caused to remaining accused when one alleged co-conspirator pleaded guilty at the conclusion of the Crown case - whether verdicts unsafe and unstisfactory.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985, ss 26, 24(1)
CASES CITED:	Chamberlain v The Queen (1985) 153 CLR 521 Nirta v The Queen (1938) 79 FLR 190 Tripodi v The Queen (1960-1961) 104 CLR 1 Weeder v The Queen [1979] Qd R 278
DECISION:	In both cases: conviction appeal dismissed; leave to appeal against sentence granted and appeal dismissed.