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Court of Criminal Appeal 23 June 2016

Siafakas v R

[2016] NSWCCA 100

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION

Citation: Siafakas v R [2016] NSWCCA 100
Court: Court of Criminal Appeal, NSW
Date: 23 June 2016
Judges: Leeming JA at [1]; Harrison J at [109]; Schmidt J at [113]

Background

The appellant was convicted in the District Court following a 24-day judge-alone trial on two counts of knowingly taking part in the manufacture of a prohibited drug under s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW), plus one count of possessing a precursor intended for use in manufacturing a prohibited drug. The convictions arose from the appellant's use of factory premises in Padstow, Sydney, where substantial quantities of the substances MDP2P and MDA were manufactured in the second half of 2007. Police seized those substances, along with significant quantities of the precursor isosafrole, when executing a search warrant on 9 December 2007.

At trial, the appellant conceded involvement in manufacturing a precursor. His defence was that he understood he was helping to make a chemical known generically as a "ketone" for illegal but not drug-related purposes, and that he was unaware the substance was MDP2P, a compound listed as both a precursor and a prohibited drug under the Act. MDP2P is not itself readily consumable for narcotic effect but is typically used to produce MDA or MDMA (ecstasy).

The aggregate sentence imposed was 10 years imprisonment with a non-parole period of 6 years. The appeal challenged only the two convictions under s 24(2), not the precursor possession conviction and not the sentence.

  • Whether the trial judge erred in law by treating the appellant's general awareness that his conduct was criminal as sufficient to satisfy the mental element of the offence, in circumstances where the physical element was that the substance was a specific prohibited drug (MDP2P).
  • Whether the trial judge provided adequate reasons for finding that the appellant was aware the substance being manufactured was specifically MDP2P.
  • Whether the verdict on count 1 (manufacture of MDP2P) was unreasonable or unsupported by the evidence.
  • Whether the verdict on count 3 (manufacture of MDA) was unreasonable or unsupported by the evidence.

Decision

The Court of Criminal Appeal found that grounds 2 and 3 of the appeal were made out in their framing as legal propositions, but that this did not ultimately result in the appeal being allowed. Leeming JA held that knowledge that one's conduct was simply "criminal" or "illegal" is not, by itself, sufficient to satisfy the mental element of an offence under s 24(2) that requires the accused to know the substance being manufactured is a prohibited drug. Mere awareness of illegality does not substitute for the required knowledge as to the nature of the substance.

However, the Court found that the trial judge, when his reasons were read as a whole, did in fact apply the correct legal standard. The judge's reasons, considered in their full context, demonstrated that his Honour was satisfied beyond reasonable doubt that the appellant knew the specific substance being manufactured was MDP2P, not merely that some illegal activity was occurring. That finding was grounded in the evidence of co-participant Bemand, the appellant's own admissions about his involvement and the agreement he had made, the documents accessible to him at the laboratory, and the nature and extent of his ongoing participation.

On grounds 1 and 4, the Court rejected the argument that either verdict was unreasonable or unsupported by the evidence. The evidence, including the surveillance footage showing the appellant's sustained physical presence and involvement, combined with Bemand's account and the appellant's own admissions, was sufficient to support both verdicts beyond reasonable doubt.

Because the trial judge's actual findings, properly understood, reflected the correct mental element, the errors identified in the formulation of those findings at certain points in the reasons did not produce a miscarriage. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW), the mental element of "knowingly" taking part in the manufacture of a prohibited drug requires awareness of the nature of the actual substance being manufactured, not merely awareness that the conduct was illegal or criminal in some general sense.
  • A verdict in a judge-alone trial is not unreasonable merely because the trial judge, at certain points in the reasons, mis-stated the applicable legal test, provided the reasons when read as a whole disclose that the correct standard was in fact applied and that the finding was supported by evidence.
  • The Court of Criminal Appeal confirmed that the requirement for adequate reasons in a judge-alone trial is satisfied where the reasons, taken together, sufficiently explain the basis on which the fact-finder was satisfied beyond reasonable doubt on the contested mental element.
  • No error was established in the verdicts where the combination of surveillance evidence, a co-participant's testimony, and the accused's own admissions provided a proper evidentiary foundation for the judge's factual conclusions.
  • The dual classification of MDP2P as both a precursor and a prohibited drug under the Act does not alter the mental element required for a s 24(2) conviction: the prosecution must still establish knowledge of the substance's identity as a prohibited drug.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 10, 23, 24, 24A, 24B, 25, 29, 30, 33; Sch 1
- Drug Misuse and Trafficking Regulation 2011 (NSW), Schs 1, 2, 4
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), s 133
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Code (WA), ss 22, 24
- Fish Resources Management Act 1994 (WA)

Cases:
- Zaburoni v The Queen [2016] HCA 12
- Filippou v The Queen [2015] HCA 29; 89 ALJR 776
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- AK v State of Western Australia [2008] HCA 8; 232 CLR 438
- Tabe v The Queen [2005] HCA 59; 225 CLR 480
- Ostrowski v Palmer [2004] HCA 30; 218 CLR 493
- Fleming v The Queen [1998] HCA 68; 197 CLR 250
- M v The Queen (1994) 181 CLR 487
- He Kaw Teh v The Queen (1985) 157 CLR 523
- Bahri Kural v The Queen (1987) 162 CLR 502
- R v Hendricks [2011] NSWCCA 203
- Yousef Jidah v R [2014] NSWCCA 270
- W v R [2014] NSWCCA 110
- R v Ruiz-Avila [2003] NSWCCA 264; 142 A Crim R 459
- R v Lau (1998) 105 A Crim R 167
- R v CWW (1993) 32 NSWLR 348
- R v Van Xuan Bui [2005] VSCA 300