Citation: R (Commonwealth) v Mark William Standen [2011] NSWSC 1046
Court: Supreme Court of New South Wales
Date: 9 June 2011
Judge: James J
Background
The accused faced multiple counts on indictment, with the application for a directed verdict confined to Count 1. That count was based on sections 11.5 and 307.11 of the Commonwealth Criminal Code, relating to a conspiracy to import a border controlled precursor, namely pseudoephedrine, with a belief that another person intended to use it to manufacture a controlled drug.
The Crown case had closed, and defence counsel applied for a directed verdict, arguing that the evidence was insufficient to allow a jury to be satisfied beyond reasonable doubt of the necessary elements of the offence. The Crown opposed the application.
The proceedings arose from a series of recorded conversations between the accused and a man referred to as Mr Jalalaty, as well as other communications and evidence relating to the storage and movement of chemicals including acetone.
Legal Issues
- Whether the Crown had to prove the accused intended to import pseudoephedrine specifically, or whether intention to import any border controlled precursor was sufficient
- Whether, by the time of the recorded conversation on 21 May 2008, any alleged importation had already been completed so that evidence from that date could not support a conspiracy still on foot
- Whether there was evidence capable of satisfying a jury that the accused and at least one other party to the agreement believed that another person intended to use any of the imported substance to manufacture a controlled drug, as required by section 307.11(1)(b)(ii)
- Whether the Crown's formulation of the belief element of the offence (when combined with section 11.5) correctly reflected the statutory requirements
- Whether the overall evidence was capable of establishing the accused's knowledge of what substance was being imported
Decision
Issue 1: The belief element under section 307.11(1)(b)(ii)
The court accepted the defence submission that the Crown had misstated the required element. The Crown had framed the belief element as requiring proof that the accused and at least one co-conspirator believed the substance would be used to manufacture a controlled drug by some other person. James J held that the correct formulation requires proof that the accused and at least one other party to the agreement believed that another person intended to use at least some part of the substance to manufacture a controlled drug. The court added that the Crown was not required to identify precisely who that other person was.
Issue 2: Whether sufficient evidence existed to support the belief element
Applying the principles from Doney v The Queen, the court found there was evidence capable of establishing the belief element. The recorded conversation of 21 May 2008 contained exchanges in which Mr Jalalaty described third parties collecting goods and the product needing to be mixed with something else before it became something else, from which a jury could infer that both parties understood the substance was destined for use in manufacturing a drug. Additional conversations from October and November 2007 were also capable of supporting that inference.
Issue 3: Evidence about acetone and other circumstantial material
The court noted evidence that drums of acetone had been stored at Mr Jalalaty's premises, and expert evidence that acetone is used as a solvent in the manufacture of methylamphetamine from pseudoephedrine. An email from Mr Jalalaty asking what to do with drums and referring to third parties who would "need them" was capable of supporting an inference that those third parties intended to use a border controlled precursor to manufacture a controlled drug. The court acknowledged defence submissions challenging the weight and timing of this evidence, but held those were matters for the jury, not for resolution on a directed verdict application.
Issue 4: Whether the accused knew what substance was being imported
James J found that several items of evidence were capable of establishing the accused's knowledge of the nature of the imported substance. These included the accused's conduct in relation to an email from Mr Kinch on 9 May 2008, conversations suggesting the accused was unconcerned by Customs' awareness of an iodine importation, price figures discussed in a telephone conversation consistent with black market prices for pseudoephedrine and methylamphetamine, and the accused's extensive experience as a law enforcement officer dealing with drug offences.
Issue 5: The directed verdict application overall
Applying the test in Doney v The Queen, the court refused the application. The evidence was capable of supporting a verdict of guilty on Count 1, and it was therefore for the jury to determine whether it in fact established guilt beyond reasonable doubt.
Orders Made
- Application for a directed verdict is refused
Key Takeaways
- Under section 307.11(1)(b)(ii) of the Commonwealth Criminal Code, combined with the conspiracy provision in section 11.5, the Crown must prove that the accused and at least one other party to the agreement believed that another person intended to use at least some part of the imported substance to manufacture a controlled drug. It is not sufficient to establish merely that the parties believed the substance would be used for that purpose without the element of another person's intention being present.
- A directed verdict application requires the court to assess only whether evidence is capable of supporting a conviction, not to weigh competing inferences or evaluate the strength of the Crown case. Arguments about the temporal remoteness of evidence or alternative innocent explanations are matters for the jury.
- Circumstantial evidence, including conversations about third parties collecting goods, expert evidence about the uses of chemicals, and email exchanges referencing unnamed recipients, can collectively constitute evidence capable of establishing a belief element in a drug importation conspiracy charge.
- The accused's professional background, in this instance long experience as a law enforcement officer working with drug offences, was treated by the court as a matter capable of supporting an inference about knowledge of what was being imported, where a conspiracy to import drugs was otherwise established.
- The court followed the principles stated in Doney v The Queen (1990) 171 CLR 207, confirming that a trial judge must refuse a directed verdict application if there is evidence upon which a properly instructed jury could return a verdict of guilty, regardless of the judge's own assessment of that evidence.
Legislation and Cases Referenced
Legislation
- Commonwealth Criminal Code - ss 11.5, 307.11, 307.14
Cases
- R v Campbell (2008) NSWCCA 214; (2008) 73 NSWLR 272
- Doney v The Queen (1990) 171 CLR 207
- Wilson v Chambers & Co Pty Limited (1926) 38 CLR 131