Scicluna v The Queen - [2007] NSWCCA 120

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: SCICLUNA v R [2007] NSWCCA 120

HEARING DATE(S): 6 October 2006

JUDGMENT DATE:
30 April 2007

JUDGMENT OF: McClellan CJ at CL at 1; Adams J at 25; Howie J at 1

DECISION: By majority appeal against conviction dismissed

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - 4 counts - knowingly take part in manufacture of methylamphetamine - supply methylamphetamine - possession of precursor - possession of prohibited weapon - failure by trial judge to direct Not Guilty verdicts on 2 counts - whether appropriate for trial judge to direct jury that it could take into account findings in respect of one charge when determining any other

LEGISLATION CITED: Evidence Act
Drug Misuse and Trafficking Act 1985
Criminal Appeal Act
Crimes (Sentencing Procedure) Act

CASES CITED: MFA v The Queen (2002) 213 CLR 606
R v Amanatidis (2001) 125 A Crim R 89
R v Micallef (2002) 136 A Crim R 127

PARTIES: Stephen Joseph Scicluna (Appl)
The Crown

FILE NUMBER(S): CCA 2006/1559

COUNSEL: S M McNaughton (Appl)
D C Frearson SC (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/1131

LOWER COURT JUDICIAL OFFICER: Hock DCJ

LOWER COURT DATE OF DECISION: 28 October 2005

2006/1559

McCLELLAN CJ AT CL
ADAMS J
HOWIE J
MONDAY 30 APRIL 2007

SCICLUNA, Stephen Joseph v R

Judgment

1 McCLELLAN CJ at CL and HOWIE J: We have received the considerable advantage of reading in draft the judgment of Adams J. We gratefully adopt his account of the evidence in the trial.

2 The parties conducted the trial on the basis that the jury verdicts would be the same for each count. The trial judge indicated to the jury, in the usual way, that the counts were separate charges and that there was no legal requirement that the jury bring in the same verdict for each count on the indictment. The trial judge, however, did tell the jury that they could take into account their findings in respect of one charge when determining another. Her Honour also told them that there was no logical reason why they would not find the same verdict on the first three counts on the indictment because the Crown’s evidence was the same for those counts.

3 The Judge said this:

Because the separate allegations contained in the charges are related, some of the factual findings that you must make based on the evidence will be relevant to a consideration of all of the charges or of some of the individual charges. A finding of fact made in respect of one charge may influence your determination of another charge. Putting count four to one side because it really stands on its own, and I will come to that when I set out the elements to you, but if you found that the accused did not possess the methylamphetamine in the bedroom then that finding can be used by you in considering whether he was knowingly concerned in the manufacture of the methylamphetamine as alleged by the Crown. The converse also applies. If you are satisfied beyond reasonable doubt that the accused possessed the methylamphetamine in the bedroom then that finding can be used by you in determining whether he knowingly took part in the manufacture of the methylamphetamine, as the Crown alleges, in the shed or the garage.

Looking at it the other way round, if you found that the accused knowingly took part in the manufacture of methylamphetamine then that finding could be used by you in your consideration of count three. That is looking at what the Crown alleged is that he possessed the precursor, the hypophosphorous acid. If you are not satisfied beyond reasonable doubt the accused did knowingly take part in the manufacture of a prohibited drug then similarly that finding could be used by you in your consideration of count three, his asserted possession of the hypophosphorous acid and his intention to use it in manufacture of a prohibited drug

4 At the conclusion of the summing up there was no objection by defence counsel to these directions nor was any further direction or clarification sought. The jury initially raised two questions after their retirement: one about the absence of Ms Pickett, the person found at the house when police went there to search it, and the other about the directions given on possession. There is no issue arising from these questions or the answers given by the Judge.

5 Later in their deliberations the jury asked two further questions. The first is of no significance. The second was:

6 The answer to this question gave rise to some discussion between counsel and the Judge. Defence counsel submitted:

7 In answering the jury's question, the Judge said (our underlining):

“I am sure you are well aware that the first three counts are related because of the circumstances on which the Crown relies. They all deal with a prohibited drug methylamphetamine. It would be impermissible just because you came to a verdict of guilty on one count to reason from that that the accused must be guilty of the other counts involving methylamphetamine. I am completely putting count 4 to one side at the moment because it, as I said, stands on its own in terms of the evidence, and this does not relate in the same way as the first three counts do.

The charges are being heard together because they are related in time and surrounding circumstances. You need to consider each charge separately and independently, and I did say to you before that there is no legal requirement that the verdicts which you are required to give must be the same, although, as you would be well aware, both the Crown and [defence counsel] addressed you on the basis that you would find the same verdict in respect of each of the counts or charges.

Although it is impermissible to reason "Well we have found the accused guilty of" - for example - "a count therefore he must be guilty of all three." Or putting it the alternative way, "We have found him not guilty of one count, we won't go any further, we'll find him not guilty of all three." And I'm dealing with the first three counts. A finding of fact made by you in respect of the one count for example can be used when considering the evidence in another count.

And that's where I think the confusion might have come in, because I think I said to you that is a matter of commonsense and logic, if you are not satisfied beyond reasonable doubt of count one, it will be difficult to see that you could be satisfied by the Crown beyond reasonable doubt of count three, which is the possession of the precursor, because in essence the Crown relies on exactly the same evidence, the same circumstances in respect of all of those three counts.

A finding of fact, if for example you came to the view you were satisfied beyond reasonable doubt the accused was guilty of count one, well that finding could be used by you when you are considering whether he was in possession of the precursor which is the subject of count three. And I think I gave other examples before, which I will not repeat at this stage. So it is the findings that you make rather than the verdict that you come to. The other way I think I said before lunch was that if you found that the accused was not in possession of the methylamphetamine in the bedroom, when he would not use that in any way when you were considering whether he was knowingly concerned in the - knowingly took part in the manufacture in count one.

I do not know what order you are dealing with them in, so it is difficult for me to anticipate which way you are dealing with them. But that is in a sort of global sense, that if you were satisfied beyond reasonable doubt that he was in possession of the methylamphetamine in the bedroom well that could be used by you in consideration of count 1 and vice versa. If you are going through the counts chronologically, that is, in the sequence that the Crown has set them out on the indictment, then if you were satisfied beyond reasonable doubt that he did knowingly take part in the manufacture, that is a finding that you could use in considering if he were in possession of the methylamphetamine in the bedroom.

8 Ground two related to these comments by the trial Judge asserting that they were erroneous. It was contended, firstly, that the Judge failed to take into account the "temporal difference" between the second and third counts, on the one hand, and the first count, on the other. This was because counts two and three related to the date of the search of the appellant's premises, namely 4 September 2003, whereas count one covered a wide period of time being between 1 January and 4 September 2003. The extended time period in relation to count one arose because the clandestine laboratory situated in the shed could have operated at any time during this eight-month period.

9 In our view the difference in the time alleged in the counts did not mean that the jury could not use findings made on count one in relation to another count or vice versa. A finding that there was in the bedroom of the appellant a large amount of methylamphetamine was not irrelevant to a determination of whether he had permitted his property to be used for the manufacture of that same type of drug in the relatively recent past. As a matter of common sense, it must follow that the fact that a person has a close connection with a large amount of methylamphetamine in premises which he owned and occupied “rationally affected’ the probability that he was involved in the manufacture of such a drug on the same premises: see s 55 of the Evidence Act.

10 The second basis upon which it is said that these comments were erroneous was because the Crown was not relying upon the fact that the drug found in the bedroom could be linked to the laboratory. It was submitted, therefore, that the only basis upon which the finding in relation to the possession by the appellant of the methylamphetamine in the bedroom could be related to the other two counts relating to the manufacture of methylamphetamine was by way of propensity reasoning, that is that it showed that the applicant had some tendency in relation to methylamphetamine. Further, it was argued that the count alleging that the applicant was in possession of the precursor stated that it was for use by the appellant “or another person”. Therefore, so the argument runs, the Crown accepted that the manufacture of methylamphetamine might have been by some other person.

11 We do not accept that, simply because the methylamphetamine in the bedroom was not linked to the shed, it follows that it was irrelevant to the issue of whether the appellant had some involvement in the manufacturing of methylamphetamine in the shed. It is not a case of propensity reasoning. It is merely the recognition that it was improbable that a person who had a large amount of methylamphetamine in his possession, on a property that he owned, was unconnected with the manufacture of that drug on the same property. Similarly the fact that a precursor to the manufacture was found in the shed was relevant to both the issue of whether the appellant was involved in the manufacture and whether he had methylamphetamine in his possession. The Crown alleged that the precursor was for use of the appellant or some other person because it could not show what role the appellant had in the manufacture. However, the relevant facts were that methylamphetamine had been, and could in the future be manufactured in the shed which the appellant owned and could access.

12 Thirdly it was contended that the comments made by the Judge that "verdicts on counts 1, 2 and 3, as a matter of commonsense and logic would be the same" did not take into account the different elements of the offences as well as "the different evidentiary basis". This asserted error is based upon the fact that, in relation to the count alleging that the appellant was in possession of the drug found in the bedroom, the Crown had to exclude the reasonable possibility that Ms Pickett was in possession of that drug, whereas, in respect of the count alleging that the appellant was in possession of the precursor, no such possibility was raised.

13 The ground of appeal was summarised in written submissions on behalf of the appellant as follows:

14 We do not consider that this ground of appeal has been made out. Her Honour was referring to the relevance of findings of fact made in determining one count to a finding of fact on another count rather than to any verdict given on one count determining the verdict on another count. That is clear from the underlined passages of the answer given to the jury’s question. There was no suggestion of propensity reasoning either expressly or impliedly arising from these comments.

15 The Judge was doing no more than indicating how the case had been presented to the jury by the parties in a practical rather than a technical way. There was no possible basis for suggesting that the jury would “conflate” the three counts. Written directions were given to the jury indicating the elements of each offence and the Judge clearly told the jury what the Crown had to prove before the jury could find the accused guilty on each count.

16 As has been noted, defence counsel took no objection to these directions when they were first given. His objection, when the jury asked the question, was only a concern that the jury might reason that, if the appellant was guilty of one of the three counts, he was guilty of them all. Otherwise he did not indicate that there was anything wrong with the comments the Judge had made and certainly did not suggest that the case was not left on the basis by each of the parties, that logically the verdicts on the first three counts should be the same. As has been noted, the judge cured the possibility that the jury thought she was referring to verdicts rather than findings. Her Honour made it plain that the jury could not reason that a verdict on one count should result automatically in the same verdict for the other two counts. All the Judge was indicating to the jury was that, in the way that the Crown had conducted its case, it was relying upon the same evidence to prove the first three counts and, therefore, the verdicts would probably be the same.

17 The first ground of appeal was that the Judge ought to have directed a verdict of acquittal at the end of the Crown case on counts 2 and 4. The ground was not argued at the hearing of the appeal and counsel for the appellant was content to argue that the verdicts were unreasonable. Clearly that was, with respect, a sensible and practical way to proceed because, if there was no case on any of the counts, the verdict of the jury must have been unreasonable.

18 We are not persuaded that the verdicts were unreasonable. It is not appropriate in our view to look at each of the first three counts in isolation and consider whether the jury ought to have had a reasonable doubt on any or all of those counts. That is not how the matter was left to the jury by counsel or the Judge. Clearly the first and third counts were so connected that the verdicts of the jury on those counts had to be the same. The allegation that the appellant was knowingly involved in the manufacture of amphetamine in the shed to whatever degree and the fact that there was the precursor for the manufacture of amphetamine in the shed stood or fell together. The Crown’s case was that the appellant who owned the property and had a key to the shed was in effect in possession of the contents of the shed. As we have already noted, the allegation that he knowingly took part in the manufacture was because the Crown could not say what role he had in it. But it alleged that he at least permitted or suffered the shed to be used for that purpose.

19 The jury were entitled to find, and we would find, that the contents of the shed showed that the laboratory was still capable of being used to manufacture methylamphetamine and there were products for use in that manufacture in addition to the precursor with which the appellant was charged. There was evidence that the laboratory could be put together to make amphetamine in about an hour.

20 In our opinion the jury were entitled to use all of the evidence relating to methylamphetamine or its manufacture as evidence on each of the first three charges. We accept that, had the evidence of the presence of the methylamphetamine in the bedroom been the only evidence, the Crown might have had more difficulty in proving the appellant had possession of it, although we do not accept that the jury could not have found that it was in his possession having regard to all the evidence. The fact that his fingerprints might have been left on the jugs from some other occasion was a matter to be considered, but not in isolation. The location of the amphetamine, the way in which it was stored, the fact that the appellant was the owner and main resident of the premises were facts to be considered together with the presence of his fingerprints. We would not have concluded that there was a real possibility that Ms Pickett was in sole possession of the drug.

21 But the jury was also entitled to take into account all the circumstances surrounding the presence of the drug in the appellant’s bedroom, including what was found in the shed as well as the fact that the appellant was the owner of the premises and had a key to access the shed and a cupboard in the shed. There was also evidence of what he said about the shed and the lies he told about what was inside it. In our opinion the jury were clearly entitled to take into account the presence of the items for the manufacture of methylamphetamine in the shed and his knowledge of the presence of them when considering whether he was in possession of the drug in the bedroom.

22 We are of the opinion that the jury were entitled to find, and we would find, that the appellant was in possession of the amphetamine in the bedroom.

23 Once that finding was made there is little difficulty to our minds in concluding that the appellant was involved with the making of methylamphetamine in the shed. It defies common sense in our view that the appellant could be in possession of a significant amount of methylamphetamine, some of it of high purity, and yet not be involved in the manufacturing of such a drug in the shed on his property. Particularly as the laboratory was operative and, it can be inferred, would have been used in the future given the material found in the shed.

24 We would dismiss the appeal against conviction. There is no application for leave to appeal against sentence.

25 ADAMS J: On 15 June 2005 the applicant was convicted by a jury on all four counts on an indictment in the following terms –

(i) Between 1 January 2003 and 4 September 2003 at Penrith in the State of New South Wales, [the appellant] did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine;

(ii) On 4 September 2003 at Penrith in the State of New South Wales [the appellant] did supply a prohibited drug, namely methylamphetamine;

iii. On 4 September 2003 at Penrith in the State of New South Wales [the appellant] did have in his possession a precursor, namely an amount of hypo phosphorous acid intended by him for use and the manufacture of a prohibited drug by himself or another person; and

iv. On 4 September 2003 at Penrith in the State of New South Wales, [the appellant] did possess a prohibited weapon, namely a hand held device designed to administer an electric shock, not being authorised to do so by a permit.

26 On the day before the trial commenced, the appellant pleaded guilty to one count of possession of .22 calibre firearm, which was a prohibited firearm, not being authorised by a license or permit.

27 The appellant was sentenced on 28 October 2005 to an effective overall sentence of four years and five months with a non-parole period of two years eleven months. The appellant appeals from his convictions; there is no application for leave to appeal in respect of the sentences.

The Crown case

28 In the early hours of 4 September 2003 the police went to 22 Hughes Avenue Penrith and conducted a search of the premises there. The appellant was found in the bed in a bedroom with a Ms, whose child was in the lounge room. The charges all derive from what was discovered by the police. There was some controversy about where precisely some of the relevant items were located and whether or not some of them were in a locked cupboard in a rear shed on the premises and some uncertainty whether the shed had a third door which may have been locked but these uncertainties – if such they be – do not matter. There was no doubt that the applicant had owned the premises for some years, and, though he occupied them on the date of his arrest, there was no evidence as to how long he had done so: as far as the evidence went, it might have been a matter of years or, perhaps, days. It is clear that he shared the premises on the day of the search with Ms and, very likely with another person who used another bedroom. Whether others had been in occupation of the premises at possibly relevant times is unknown.

29 The shed had plainly been used to manufacture amphetamine. In the shed was found, amongst other things, hypophosphorous acid, a precursor used to manufacture methylamphetamine. In the appellant’s bedroom were found two beakers containing methylamphetamine and, in a drawer, in a bedside table, a stun gun.

30 In my view, the determination of this appeal depends substantially on whether the appellant was in occupation of the premises when methylamphetamine was being manufactured in the shed, or whether, not being in occupation at that time, he knew that the manufacture was taking place and was a party to it in some way, whether the fact that the beakers containing methylamphetamine were found in his bedroom proved (with all the other evidence) that he claimed ownership or control over them sufficient to justify the inference that they were in his possession and whether he was aware if the presence of the stun gun in the bedside table.

The evidence

31 The premises comprised a single storey house with three bedrooms and a driveway leading to the shed at the rear. Police executed a search warrant at about 6am on 4 September 2003. The appellant cooperated fully with police during the execution of the warrant. As I have mentioned, he made no admissions either about the drugs or the stun gun. At the time police entered the premises the appellant was in bed in the main bedroom with Candice Pickett. As the officers went into the lounge room they noticed a small child who had been sleeping on the lounge and who sat up as they came through the door.

32 The shed was fitted with a roller shutter door and a door to the left. There was a door in the back of the shed. A handbag with identification belonging to Candice Pickett, keys to a Holden Commodore and the front door of 22 Hughes Avenue Penrith was found in the house. The door at the side of the shutter was secured with a padlock, a key to which was on a bunch of keys taken by the appellant from a backpack on the floor next to the right hand side of the bed (where he was when police entered the premises). The appellant also gave police a key to a small wooden cabinet inside the shed (called the “office”) to which the shed door gave access. Inside that cabinet was found a five litre plastic container that was holding about a litre of clear liquid. The liquid was not analysed and its nature is unknown. In another unlocked cupboard inside the doorway of the office area police found a backpack which contained the following items: a two litre plastic holding about 1.4 litres of clear liquid containing hypophosphorous acid; two electronic PH testers, the washers on which were found to contain methylamphetamine; a double-necked two litre round bottom reaction flask with traces of brown liquid containing methylamphetamine and pseudoephedrine; a saucepan with two handles lined with aluminium foil and having a white solid residue on the base (not analysed); an orange funnel with black electrical tape around the end (not analysed); a glass elbow joint (no prohibited substance detected); a plastic bottle with a white lid and masking tape around the middle labelled H/P acid holding about 100ml of clear liquid which contained hypophosphorous acid; and a plastic container containing a grey granulated substance consistent with being iodine. In the same cupboard was found a one litre glass condenser in which was detected N-formyl-methylamphetamine, which is a by-product of the manufacture of methylamphetamine. On top of a desk in the office area was found a glass baking dish on which was a white powder residue containing pseudoephedrine. In a drawer under the office desk were found packets of Codral day and night tablets, Logicin sinus tablets, Zyrtec tablets, Telfast tablets, Demazin 12 hour tablets, and three documents labelled “cash stock cheque cashing facility” in the name of the appellant. In a cupboard in the office area was found a one litre black plastic drum with three ml of clear liquid in which was detected hydrochloric acid, a 375ml plastic water bottle half full of clear liquid with the words “ACE” and “TONE” written on the bottle, of which a sample was acetone (not a prohibited substance) and a four litre metal tin labelled “acetone full of liquid”. In the shower area were a number of sundry items including a four litre plastic container containing about 200ml of liquid containing ethanol and traces of pseudoephedrine and white sludge containing carbohydrate resembling a tableting agent, a full 500g plastic container of caustic soda. Swabs taken from the tiles on the walls of the shower contained methylamphetamine. Also found under a shelf in the middle of the garage was a twenty litre metal drum containing methylated spirits and another four litre metal tin containing acetone. On the work bench in the garage was found a set of large electronic scales.

33 A chemist from the Australian Forensic Drug Laboratory and an expert police officer experienced in the investigation of clandestine laboratories gave evidence that pseudoephedrine could be used in the manufacture of methylamphetamine and could be extracted from pharmaceutical medications such as those found in the drawer of the desk. The tablets were ground down and mixed with a solvent such as methylated spirits which was then evaporated, thus producing almost pure pseudoephedrine hydrochloride. Residual pseudoephedrine could also be extracted from the solid residue of sludge left at the bottom of the vessel which had not been dissolved by the solvent. The type and variety of tablets found were commonly located in methylamphetamine laboratories. The liquid and white sludge in the plastic container found in the shower area of the shed represented the extraction of pseudoephedrine from pharmaceutical tablets using methylated spirits and, because the concentration of pseudoephedrine was low, the liquid was the second or subsequent extraction of the tableting agent. The pseudoephedrine was reacted with hypophosphorous acid and iodine, producing methylamphetamine. A heating process was necessary, which was typically done in a flask with a condenser attached to the top; a wok which was found in the shower was one of the heating devices sometimes used in order to heat the materials for the reaction. The round bottom reaction flask found in the backpack and the glass condenser in the cupboard inside the office area were almost certainly used for the manufacture of methylamphetamine from pseudoephedrine. After the reaction was completed, sodium hydroxide (caustic soda) was added to separate the methylamphetamine in the form of oil from the rest of the mixture by a process of distillation. (It will be recalled that a full 500g container of caustic soda was found in the shower area). The methylamphetamine oil was then usually converted into a salt by being dissolved in acetone and adding hydrochloric acid. As the list of located materials shows, both of these chemicals were discovered in the garage. It is necessary to monitor the acidity of PH level of the mixture. It is obvious that the two testers found in the backpack were used for this purpose. Of course, a number of the chemicals found in the garage, such as acetone could be used for innocent purposes.

34 The shed could fairly be described as a laboratory and there was evidence that the items found in it could be used to manufacture methylamphetamine in less than forty hours. The conclusion that the shed had been used to manufacture methylamphetamine was inevitable. The crucial outstanding question, however, was when it had been so used, as to which there was no evidence. I return to the significance of this issue in due course.

35 In the main bedroom, where the appellant and Ms Pickett were found sleeping, were found a Pyrex 1000ml measuring jug with a metal spoon and brown powder substance weighing 3.4 grams of which 11.1% was methylamphetamine. On this jug was found a print of the appellant’s right middle finger on the bottom and his right thumb on the inside. This jug was on the shelf on the north eastern corner of the bedroom. On the bedside table on the side of the bed on which the appellant was sleeping was found another Pyrex 1000ml measuring jug with a metal spoon, containing an orange brown crystalline powder weighing 17.4 grams of which 73.7% was methylamphetamine. The appellant’s right thumb was identified on the inside of the jug and a print of someone other unknown person was also identified. The evidence of the fingerprint expert was that the fingerprints on the jugs could have been there even before they were washed so that it could not be inferred that, at the time they were evidently handled by the appellant they contained any amphetamine.

36 Twenty-four tablets of Serapax and four tablets of Mogadon, a white powder and small resealable plastic bags were found in a blue cosmetic bag on the floor next to the appellant’s side of the bed. Also found in the bedroom was a set of electric pocket scales.

37 The material discovered in the bedroom, taken together, might have justified a finding that the methylamphetamine contained in the jugs was intended for supply but the Crown case in this respect was that the quantity was such that it was deemed to be possessed for supply. The crucial question was whether the methylamphetamine was in the possession of the appellant. The stun gun was found in a black case in the bottom drawer of the bedside table on the appellant’s side of the bed. It was not disputed that the appellant was not licensed to possess such an item. The gun, operated with a battery, was in working order.

The grounds of appeal

38 Ground One: There was a miscarriage of justice as a result of the learned trial judge’s failure to direct verdicts of not guilty on Counts 2 and 4;

Ground 2: The learned trial judge erred in directing the jury that it could use a finding in relation to any Count (other than Count 4) in coming to a conclusion on any other count.

39 If the appellant succeeds on Ground 3 it is not necessary to consider either of the other grounds, whilst if he fails on Ground 3, he must a fortiori fail on ground 1. Accordingly, I propose to consider Ground 3 first.

40 Counts 2 and 4 depended upon proof beyond reasonable doubt that the applicant was in possession of the jugs and the stun gun in the bedroom where he was found when the police entered the premises. The starting point is the link between the appellant and the premises. As I have already mentioned, the applicant was in bed when the premises were entered by police. Following a conversation with police, the appellant obtained from a backpack on the floor near the bed on the side where he had been sleeping keys which, amongst other things, opened the padlock to the door of the garage.

41 The appellant was arrested shortly after a search of the house and cautioned. A little after half an hour later a conversation occurred between the appellant and Constable Rubelj. None of that conversation was elicited by the Prosecutor. However, in cross-examination the following was elicited. He was asked whether the bedroom he was in when the police entered the premises was the main bedroom and he answered, “Yeah”. Constable Rubelj then asked, “This is where you sleep?” and was told, “I sleep and a few other people, yeah”. Constable Rubelj asked, “Who are the other people?” and the appellant replied, “Well I’m not mentioning any names but just other people”. The appellant then identified a toilet bathroom and another bedroom which he said belonged to a Jessie. Just before the appellant was taken by Constable Rubelj to the garage, he was asked, “Alright Steve we’ll just go out the back of the premises and you’ve got a key to the back shed have you?” to which the reply was “Yeah” and the appellant provided a key as already mentioned. As they walked to the back of the workshop area in the shed Constable Rubelj asked, “What is exactly in there” and the appellant replied, “Engine reconditioning, mechanical”. Thus was manifestly untrue. The officer asked, “You do most of your work here or --?” and the appellant replied, “Yeah, when I’m working”. The officer asked, “What are you employed as at the moment?” and received a reply which, however, was not transcribed but contained the word “adjusters”. The officer asked, “Right, and is this just a hobby?” and the appellant replied, “Oh yeah. Basically. It’s what I used to do you know”. Constable Rubelj then asked him, “What is in the back room over there mate?” to which the appellant replied, “Toilet, shower”. He was asked, “Alright. Is that unlocked or--?” and the appellant said, “No, no…open it”. The appellant said of the equipment that it was “a beer brewing kit for brewing home brew”. Again, this was manifestly untrue. There was some other immaterial conversation.

42 The Crown tendered a title search showing the registered proprietor of the property to be the appellant together with a transfer showing that he had acquired the property in February 1996. There was no evidence as to when he was in occupation of the house except, of course, that he was clearly in occupation when police entered the premises.

The function of this Court

43 If I may say so, a useful summary of the relevant considerations applying in this appeal may be found in the decision of this Court in R v Micallef (2002) 136 A Crim R 127 Dunford J (with whom, as to this point, Sully and Bell JJ agreed) said –

Plomp v The Queen

Martin v Osborne

according to the common course of human affairs

(Emphasis added.)

[40] After referring to the type of matters which cannot be taken into account, such as character, reputations, associations etc., his Honour went on:

judged rationally upon common experience

(Emphasis added.)

Knight v The Queen

Chamberlain v The Queen

[42] There is often a tendency in cases of this nature to consider whether each individual circumstance can be separately explained away as being consistent with innocence; or to consider whether a path, however tortuous, can be found through a combination of the circumstances, which as a matter of strict logic, is capable of being reconciled with a conclusion of innocence. The correct test, however, as explained by Dixon CJ in the passages quoted above, is whether, judging the matter rationally in the light of the common experience of human affairs, the combination and totality of the facts proved are consistent with innocence.

M v The Queen

44 (See also MFA v The Queen (2002) 213 CLR 606.)

45 In this case, no material question of credibility arose; the jury thus enjoyed no advantage over this Court. However, its status as the primary deciders of guilt or otherwise must not be overlooked.

Were the verdicts unreasonable?

46 It is clear that, at the time of the search the appellant and Ms Pickett were in occupation of the house although, of course, at least one other person, Jessie, may have been normally present and, as it happened, not present at the time. It was submitted by the Crown that the presence of the fingerprints on the inside of the jugs is strongly indicative of his control of the contents, in particular of that jug which was located on his side of the bed. In light of the fingerprint evidence, this submission must be viewed with some scepticism. So far as the stun gun was concerned, the Crown relied on the fact it was located in a bedside drawer on the appellant’s side of the bed in a house that he owned and occupied and therefore should be regarded as subject to his control. The crucial question here in my view boils down to whether the evidence justified the conclusion that the appellant knew of the presence of the stun gun.

47 Although the Crown did not argue that the drugs found in the bedroom were the product of the laboratory in the garage, it is relevant to consider, when looking at the question of the possession of the drugs in the bedroom, the fact that the appellant had keys and access to the shed on his premises which had plainly been used for the manufacture of amphetamine. Furthermore, a locked metal cabinet in the office area was opened with a key provided by the appellant; the fact that there is nothing that suggests the connection of the five litre container found in it or the liquid in it with the manufacture of amphetamine does not qualify the inference of control implied by possession of the key. Even so, it is self evident that the mere fact that the appellant had a key could not justify a conclusion that no other person had a key and hence access both to the house and to the garage.

48 In my view, the inference that the appellant, at the least, was aware that the shed was used for the manufacture of amphetamine at one time or another is inevitable and it is reasonable to take this conclusion into account in considering the question of the appellant’s possession of the drugs in the bedroom. The mere presence of those drugs in the jugs in the form they were in strongly suggests a close connection between them and the manufacturing process of which they were the result, even if (as the Crown conceded) it could not be inferred beyond reasonable doubt that that manufacture took place in the garage. Once it is accepted that the appellant was aware that the shed had been used for the manufacture of amphetamine, it is an inevitable conclusion he knew that the matter in the jars was amphetamine. The crucial question, to my mind, is whether there was a reasonable possibility that the appellant was not exercising control over them. The fact that others might have exercised control over them is of course relevant but does not establish that the appellant did not. However, it is not necessary for the defence to establish that he did not exercise any control over the drugs but for the Crown to exclude the reasonable possibility that, although he plainly had access, he also had a sufficient measure of control to amount to possession.

49 In R v Amanatidis (2001) 125 A Crim R 89, Giles JA said (Hulme J not commenting, Adams J agreeing) at 90-

He Kaw Teh v The Queen

R v Dib

R v Filipetti

R v Bazley

R v Sobolewski

50 Had the drugs been found elsewhere in the house, I would be minded to think that the Crown could not, on the evidence in this case, have excluded the reasonable hypothesis that the applicant merely had access rather than physical control over the drugs. There was no doubt that he was not the only occupant of the premises. In the circumstances here, it seems inescapable that the appellant permitted or, at least, agreed that the drugs could be placed in the bedroom. If that permission or agreement were necessary, the appellant would have had sufficient control at all events to constitute possession in the circumstances. That leaves open the question whether it is reasonably possible that he was simply indifferent to the placing of the drugs in the bedroom and thus exercised no control over them. It seems to me that the facts that the drugs were in his bedroom on clear display, that he must have been aware of their nature, and that by far the larger part was found on the bedside table in his immediate physical proximity demonstrated that he had sufficient knowing physical control of the jugs and their contents to warrant the conclusion beyond reasonable doubt that he was in possession of their contents, even though that control might well have been shared with Ms Pickett. I am not persuaded that a conclusion beyond reasonable doubt that the drugs, at least at that quantity on the bedside table, was in the appellant’s possession was unreasonable or cannot be supported having regard to the evidence.

51 Possession of the stun gun, it seems to me, falls into a different category. It was not on clear view. It is not known how long it was in the bedside table nor how it came to be there. It is not known how long the appellant had occupied the premises or, for that matter, how long he had occupied the bedroom. The fact that it was in the bedside table on his side of the bed is certainly strongly suggestive that he knew of its presence. However, it seems to me that the evidence could not justify a conclusion beyond reasonable doubt that he was aware of it. In my view, therefore the verdict in respect of Count 4 is unreasonable.

52 I now move to Count 1 of the indictment. I have already said that it is inescapable to my mind that the appellant was aware that the garage had been used for the manufacture of amphetamine. However, there is no evidence that permits any inference to be drawn as to when the manufacture of amphetamine occurred, nor any evidence as to when the appellant became aware that it occurred. If he was aware only after the event, then he could not be guilty of the offence. If he was aware of the manufacture at the time that it occurred, he is not guilty of the offence unless there is some evidence that he was concerned in the manufacture. It is unnecessary to consider whether, in that event, (say) payment of rent by the occupants undertaking the manufacture would amount to being knowingly concerned in the manufacture since there is simply no evidence that, at that time, the applicant was aware that it was happening. Mere ownership of the premises and knowledge of the manufacture could not be sufficient to establish a knowing concern in the manufacture. If there was evidence that manufacture of the amphetamine occurred at the time of the appellant’s occupation of the premises, then that he was knowingly concerned in it might well be inferred. But there is no evidence justifying this inference. I cannot see how the fact that there were beakers of amphetamine in the appellant’s bedroom can support any inference about when the manufacture of the amphetamine occurred or whether the appellant was aware, at the time of manufacture, that it was occurring. Nor does that the fact that he owned the premises at the time of manufacture shed any light on when the manufacture occurred or when he found out about it. These matters taken together do not fill these gaps in the Crown case. With respect, I do not see how common sense makes the required links. To the contrary, common sense demonstrates that it is not known when the manufacture of amphetamine occurred or whether the appellant was aware of the manufacture at the time it was occurring and, hence, that it is unknown whether he was knowingly concerned in the manufacture of amphetamine.

53 It seems to me that the problem for the Crown in this case arises from its inability to prove neither when the appellant was in occupation of the premises nor when the manufacture of amphetamine occurred. This problem is not resolved by the wide range of dates in the indictment. Even if it be accepted that the amphetamine in the jars in the bedroom was very likely to have been manufactured in the shed, it does not follow beyond speculative suspicion that the appellant was in occupation at the time of that manufacture. This is not a matter that depends upon the credibility of any witness. It follows that the verdict of guilty in respect of the first count must be set aside as unreasonable.

54 So far as the third count is concerned, namely the possession of hypophosphorous acid, that was contained in the backpack with a number of other items that had been used for the manufacture of amphetamine and, of course, might well be used again for that purpose. As with the other items, there was no evidence as to when the acid was placed in the bag nor when the bag was placed in the cupboard in the shed nor, for that matter, whether it was placed there by the appellant. There was some inconsistency in the evidence of the police officers as to whether the cupboard in which the backpack was found was locked. The evidence of the officer who located the backpack, although unqualified in chief, was somewhat less clear in cross-examination. To my mind, nothing depends on this point. Certainly the appellant produced a key to the cupboard in which, in the Crown case the backpack was found. In my view, the jury were entitled to conclude that the backpack was indeed in the cupboard and that the appellant had a key to that cupboard which he produced to the police.

55 More difficult for the Crown in respect to this count seems to me to be the necessity to establish, beyond reasonable doubt in the circumstances here, that the appellant was aware of the nature of the substance. I do not think that it was essential that he be aware that it was hypophosphorous acid but I think that it essential that he should be aware that it was a precursor chemical for the manufacture of amphetamine. This follows from the terms s24A of the Drug Misuse and Trafficking Act 1985 which gave rise to the offence. That provision is on the following terms:

Possession of precursors for manufacture or production of prohibited drugs

56 It seems to me that, to make out the offence, the prosecution must establish beyond reasonable doubt that the person knew that the substance is a precursor for the (in the circumstances of this case) manufacture or production of amphetamine. It is unnecessary to consider refined arguments concerning the nature of knowledge required for the purposes of establishing possession, given the terms of the section itself. In this case, however, even if the prosecution proved that the appellant was in possession of the bag and was aware that the substance in the container in the bag was a precursor, in my view the evidence could not justify the conclusion that the appellant intended to use the acid for the purposes of manufacturing or producing amphetamine or that he intended that another person should do so. The mere fact, if it be the fact, that some of the acid in the container had been used for the manufacture of amphetamine (which I think might readily be inferred) does not mean that the remaining acid was intended by the appellant to be used for that purpose either by him or by another. Accordingly, the verdict of guilty upon this charge was unreasonable.

57 Having regard to the grounds upon which the convictions on Count 1, Count 3 and Count 4 must be quashed, it seems to me that verdicts of acquittal must be entered with respect to those Counts.

Ancillary

58 The appellant was sentenced as follows –

Count 4: imprisonment for a fixed term of twelve months to date from 26 October 2005 and expire on 25 October 2006;

Count 2: imprisonment for a fixed term of twelve months to date from 24 April 2006 and expire on 25 April 2007;

Count 3: imprisonment for a fixed term of twelve months to date from 26 October 2006 and expire on 27 October 2007;

Count 1: non-parole period of eighteen months imprisonment to date from 26 October 2006 and expire on 25 April 2008 with a total term of three years imprisonment to expire on 25 October 2009.

59 The effective overall sentence was therefore a total term of four years and five months with a non-parole period of two years and eleven months.

60 The learned sentencing judge made it clear that she approached the sentencing of the appellant by fixing what her Honour regarded as appropriate sentences for each offence and then adjusting the extent of accumulation having regard to the principle of totality.

61 The sentences on the present indictment commenced on the expiration of the sentence for possession of a prohibited firearm upon which the appellant was convicted before trial and to which I referred at the outset of this judgment. Accordingly, the sentence for count 2, the only remaining count on the indictment for which he was tried must commence on 26 April 2006. The appellant was sentenced on this count to a fixed term of imprisonment for twelve months expiring on 25 April 2007. Although the learned judge did not expressly say so, I think that this fixed term was imposed as a reflection of a non-parole period which otherwise would have been imposed had the appellant not been sentenced on count 1 to a non-parole period of eighteen months imprisonment dated from 26 October 2006 and expiring on 25 April 2008 which sentence, apart from the initial six months, wholly included the sentence passed in respect of count 2.

62 It therefore seems necessary to vary the sentence on count 2 by converting the fixed term into a non-parole period but imposing a total term which will provide for a period on parole. This would, of course, be both technically and practically an increase of the sentence passed on count 2. The Court has the power to do so under s7(1) of the Criminal Appeal Act 1912. The learned sentencing judge did not find that there were any relevant special circumstances except those that applied where sentences were being accumulated in order to ensure that the overall sentence reflects the statutory ratio in s44 of the Crimes (Sentencing Procedure) Act 1999. I would agree with this finding: there are no other special circumstances that would justify a variation of the statutory ratio. If count 2 were considered by itself, therefore, it appears that the appropriate sentence would be a non-parole period of twelve months to date from 26 April 2006 and expire on 25 April 2007 with a total term of one year and four months. The picture, however, is complicated by the fact that the sentence on count 2 was accumulated upon the sentence, not only for count 4 (now quashed) but also partly on the sentence imposed for possession of the prohibited firearm. However, I would not adjust the commencing dates of the sentences because I regard the effective non-parole period of 1 year and seven months as being the minimum sentence capable of reflecting the appellant’s criminality in respect of these two offences. Nor would I think it appropriate to extend the total sentence imposed for count 2 in order to comply with the statutory ratio.

63 These matters were not the subject of submissions by the parties and, because the effect of my proposed orders would be to increase the penalty on count 2, I think that the Court should first consider any submissions which the parties, in particular the appellant, wishes to make upon this point.

64 Accordingly, I would propose that the convictions in respect of counts 1, 3 and 4 of the indictment be quashed and verdicts of acquittal be entered and the question of sentence be deferred to permit the parties to make written submissions.

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Citations

Scicluna v The Queen [2007] NSWCCA 120

Most Recent Citation

Scicluna v The Queen (No. 2) [2007] NSWCCA 172

Cases Citing This Decision

1

Scicluna v The Queen (No. 2) [2007] NSWCCA 172

Cases Cited

9

Statutory Material Cited

4

Hocking v Bell [1945] HCA 16

MFA v The Queen [2002] HCA 53

R v Amanatidis [2001] NSWCCA 400

CITATION:	SCICLUNA v R [2007] NSWCCA 120
HEARING DATE(S):	6 October 2006
JUDGMENT DATE:	30 April 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Adams J at 25; Howie J at 1
DECISION:	By majority appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW - Appeal against conviction - 4 counts - knowingly take part in manufacture of methylamphetamine - supply methylamphetamine - possession of precursor - possession of prohibited weapon - failure by trial judge to direct Not Guilty verdicts on 2 counts - whether appropriate for trial judge to direct jury that it could take into account findings in respect of one charge when determining any other
LEGISLATION CITED:	Evidence Act Drug Misuse and Trafficking Act 1985 Criminal Appeal Act Crimes (Sentencing Procedure) Act
CASES CITED:	MFA v The Queen (2002) 213 CLR 606 R v Amanatidis (2001) 125 A Crim R 89 R v Micallef (2002) 136 A Crim R 127
PARTIES:	Stephen Joseph Scicluna (Appl) The Crown
FILE NUMBER(S):	CCA 2006/1559
COUNSEL:	S M McNaughton (Appl) D C Frearson SC (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/1131
LOWER COURT JUDICIAL OFFICER:	Hock DCJ
LOWER COURT DATE OF DECISION:	28 October 2005