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District Court 5 December 2011

R v Craig MCGREGOR

[2011] NSWDC 242

Drugs
CRIMINAL LAW PROCEDURE TRIAL BEFORE JUDGE WITHOUT JURY EVIDENCE BURDEN AND STANDARD OF PROOF ACCUSED'S ACCOUNT UNRELIABLE

Citation: R v Craig McGregor [2011] NSWDC 242
Court: District Court of New South Wales
Date: 5 December 2011
Judge: Cogswell SC DCJ

Background

Police raided the accused's unit in Naremburn in April 2009 and discovered a large quantity of chemicals, chemical equipment, and evidence of ongoing chemical reactions. The unit resembled an amateur laboratory. The accused, who had both an interest in chemistry and a drug addiction, admitted he had agreed to manufacture methylamphetamine.

The central dispute was not whether any agreement to manufacture methylamphetamine existed, but rather the quantity involved. The prosecution charged the accused with conspiring to manufacture methylamphetamine in an amount not less than a large commercial quantity, with an alternative charge of manufacturing an indictable quantity. The accused pleaded guilty to the lesser offence but contested the more serious charge, maintaining that he had only agreed to manufacture a relatively small amount.

Both parties elected for a judge-alone trial. The prosecution presented a detailed circumstantial case drawing on intercepted telephone calls, the chemical equipment and substances found in the unit, and a statement from a co-accused named Clarissa Burrow. The accused gave evidence in his own defence and was comprehensively cross-examined by the Crown Prosecutor.

  • Whether the prosecution had proved beyond reasonable doubt that the accused was part of a conspiracy to manufacture methylamphetamine in an amount not less than a commercial quantity or large commercial quantity.
  • What weight, if any, should be given to an unsworn, untested statement from a co-accused who was a drug addict with no relevant chemical knowledge.
  • Whether, in a circumstantial case, the accused's explanation raised a reasonable doubt even if the court did not positively accept that explanation as true.

Decision

His Honour found the co-accused Burrow's statement almost completely unreliable and placed no weight on it as direct evidence. Five reasons supported that finding: the statement was unsworn and unverified; it was untested; Ms Burrow was a drug addict; she had no relevant chemical knowledge yet purported to describe chemical transactions; and she was an accomplice of the accused. His Honour noted this was the kind of evidence about which a jury warning under section 165 of the Evidence Act 1995 would ordinarily be given.

The prosecution's remaining case was, in His Honour's view, almost exclusively circumstantial. The intercepted telephone calls captured no direct admissions by the accused, and no eyewitness could place him in the context of manufacturing a commercial or large commercial quantity. His Honour acknowledged the prosecution had marshalled a powerful circumstantial case that demanded an explanation.

His Honour applied the principles he would have directed to a jury in a circumstantial case: guilt must be the only available inference, drawn beyond reasonable doubt, having regard to both the prosecution evidence and the accused's own evidence. Crucially, the court does not need to accept an accused's account as true for that account to generate a reasonable doubt. It is sufficient that the account raises a reasonable possibility of innocence.

Having observed the accused give evidence and withstand thorough cross-examination, His Honour found that the accused explained, consistently and without prevarication, almost all of the propositions put to him. His Honour was not required to, and did not, make a finding that the explanation was true. Rather, His Honour found the account raised a reasonable doubt about the prosecution's case, and accordingly acquitted the accused on count one. The accused was convicted on count two, the conspiracy to manufacture an indictable quantity of methylamphetamine, to which he had pleaded guilty.

Orders Made

  • The accused was found not guilty of count 1: conspiracy to manufacture methylamphetamine in an amount not less than a large commercial quantity.
  • The accused was found guilty of count 2: conspiracy with Brett Staas and Clarissa Burrow to manufacture methylamphetamine in an amount not less than the indictable quantity, and was convicted of that offence.

Key Takeaways

  • In a purely circumstantial drug manufacturing case, the prosecution must establish that guilt is the only available inference beyond reasonable doubt, taking into account both the prosecution evidence and any evidence given by the accused.
  • A court sitting without a jury must apply the same principles it would direct a jury to apply. Where an accused gives evidence, a finding of not guilty does not require the court to positively accept the accused's account as true. It is sufficient that the account raises a reasonable doubt.
  • Unsworn, untested statements from co-accused witnesses who are drug addicts with no relevant expertise may attract very little or no weight, particularly where the witness is also an accomplice. The District Court in this case treated such a statement as almost completely unreliable.
  • Where an accused withstands comprehensive cross-examination without prevaricating or appearing compromised, that demeanour may contribute to a reasonable doubt even in the face of a powerful circumstantial case.
  • Admissions to a lesser offence do not preclude acquittal on a more serious charge where the prosecution cannot prove beyond reasonable doubt the additional element, here the quantity of the drug the accused agreed to manufacture.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW), s 165 (unreliable evidence warning)

Cases cited: No cases were cited in the judgment.