AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 28 January 2014

R v Galway

[2014] NSWDC 1

Drugs
CRIMINAL LAW METHYLAMPHETAMINE 3,4 MDMA CRIMINAL LAW DEEMED SUPPLY KNOWLEDGE OF POSSESSION REQUIRED KETAMINE CRIMINAL LAW

Citation: R v Galway [2014] NSWDC 1
Court: District Court of New South Wales
Date: 28 January 2014
Judge: Neilson J

Background

The accused was charged with a range of serious drug offences arising from investigations into two alleged clandestine drug laboratories: one at Grose Wold and one at Leppington in New South Wales. The charges spanned activity between 2006 and 2008 and included manufacturing large commercial quantities of methylamphetamine and MDMA, exposing a child to a drug manufacturing process, possessing a prescribed precursor (pseudoephedrine), and supply of a commercial quantity of ketamine.

The accused elected to be tried by judge alone. He pleaded guilty at the outset to two firearms and weapons charges, leaving eight substantive counts (plus statutory alternative counts) to be determined at trial.

A key feature of the Crown case was the evidence of the accused's brother, Daryl Galway, who had himself been criminally involved in related events. Daryl Galway had pleaded guilty to separate charges arising from the Leppington laboratory and had received a sentencing discount for undertaking to give evidence against his brother.

  • Whether the accused manufactured, or knowingly took part in manufacturing, large commercial quantities of methylamphetamine at Grose Wold and Leppington, and MDMA at Leppington
  • Whether the accused exposed a child to the drug manufacturing process at Grose Wold
  • Whether the accused possessed pseudoephedrine as a prescribed precursor with the intention of using it to manufacture methylamphetamine
  • Whether the accused was guilty of deemed supply of a commercial quantity of ketamine, including the knowledge requirements for that offence
  • The appropriate weight to give to the evidence of a witness (the accused's brother) who was criminally concerned in the relevant events
  • Whether statutory alternative counts were available where the principal counts were not proved

Decision

Neilson J acquitted the accused of the principal counts on counts 1, 6, and 7, which charged him as the manufacturer. However, his Honour found the accused guilty of a statutory alternative count: knowingly taking part in the manufacture of methylamphetamine at Grose Wold between 22 and 26 November 2008. The court did not find the Crown had proved the charged timeframe or the child-exposure element to the required standard on the principal counts.

On the Leppington counts (counts 6, 6A, 7, and 7A), the accused was acquitted of all charges, including the alternative counts of knowingly taking part in manufacturing. The Crown's case on those counts relied significantly on the evidence of the accused's brother, which the court was required to approach with considerable caution given his criminal involvement and his personal interest in assisting the prosecution.

On the pseudoephedrine possession charge (count 4), the accused was acquitted. The court was not satisfied beyond reasonable doubt that the accused possessed the precursor with the requisite intention to use it in manufacturing methylamphetamine.

On the ketamine supply charge (count 5), the accused was also acquitted. The charge was framed as a deemed supply offence, but the court was not satisfied that the Crown had established the knowledge of possession required for that charge. Throughout the trial, Neilson J applied the criminal standard of proof, directing himself as he would direct a jury: the Crown bore the onus on each element of each offence, and any reasonable possibility of innocence required acquittal.

Orders Made

  • Count 1 (manufacturing methylamphetamine, large commercial quantity, exposing a child, Grose Wold): Not guilty
  • Count 1A (knowingly taking part in manufacturing methylamphetamine, large commercial quantity, exposing a child, Grose Wold): Not guilty
  • Statutory alternative to Count 1A (knowingly taking part in manufacturing methylamphetamine, Grose Wold, 22–26 November 2008): Guilty
  • Count 4 (possession of pseudoephedrine as a precursor): Not guilty
  • Count 5 (supply of commercial quantity of ketamine): Not guilty
  • Count 6 (manufacturing methylamphetamine, large commercial quantity, Leppington): Not guilty
  • Count 6A (knowingly taking part in manufacturing methylamphetamine, large commercial quantity, Leppington): Not guilty
  • Count 7 (manufacturing MDMA, large commercial quantity, Leppington): Not guilty
  • Count 7A (knowingly taking part in manufacturing MDMA, large commercial quantity, Leppington): Not guilty

Key Takeaways

  • A witness who has been criminally concerned in the events giving rise to proceedings must be the subject of a reliability warning, both under the common law accomplice rule and under s 165(1)(d) of the Evidence Act 1995, which extends the principle to witnesses with a similar interest to serve.

  • The District Court confirmed that where a principal count fails, the court conducting a judge-alone trial must consider available statutory alternative counts, and may return a guilty verdict on a lesser alternative even when acquitting on the primary charge.

  • Deemed supply of a prohibited drug requires the Crown to prove the accused's knowledge of possession; it is not enough to establish mere physical possession of a commercial quantity.

  • For an offence of possessing a prescribed precursor, the Crown must prove beyond reasonable doubt that the accused held the requisite intention to use the substance in manufacturing a prohibited drug; possession alone is insufficient.

  • In a judge-alone criminal trial, the court must apply the same self-directions it would give to a jury, including the requirement that the Crown disprove any reasonably possible version of events advanced by the defence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW), s 165(1)(d)
- Firearms Act 1996 (NSW), s 7(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Davies v DPP [1954] AC 378
- DPP v Brooks [1974] AC 862
- He Kaw Teh v The Queen (1985) 157 CLR 523
- R v Chai (1992) 27 NSWLR 153