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District Court 5 November 2020

R v Merhi

[2020] NSWDC 821

Drugs
TRIAL BY JUDGE SUPPLY CANNABIS CONSCIOUSNESS OF GUILT CIRCUMSTANTIAL EVIDENCE ADMISSIONS PRIOR INCONSISTENT STATEMENTS

Citation: R v Merhi [2020] NSWDC 821
Court: District Court of New South Wales
Date: 5 November 2020
Judge(s): Norrish QC DCJ

Background

The accused was charged under the Drug Misuse and Trafficking Act 1985 with four offences arising from a police search of a semi-rural property at Galston on 29 September 2017. The property was the accused's family home, where he lived with his mother. Behind the residence and a series of exotic bird enclosures sat a structure described throughout the trial as the "rear shed."

Police executing a search warrant discovered inside the rear shed an operational clandestine laboratory containing equipment, precursor chemicals, and finished prohibited drugs consistent with three separate manufacturing processes: methylamphetamine, MDMA, and GBL. A quantity of cannabis leaf was also found on a quad bike nearby.

The accused's position throughout was that he had leased the rear shed to an unknown third party, was unaware of any drug manufacturing occurring inside it, and had possessed the cannabis only for personal use. The Crown did not allege that the accused physically conducted the manufacturing processes himself. Rather, it alleged he had knowingly permitted and provided the premises for those processes, satisfying the broad definition of "taking part in manufacture" under section 6 of the Act.

Legal Issues

  • Whether the accused "knowingly took part" in the manufacture of methylamphetamine, MDMA, and GBL by providing premises and permitting manufacturing steps to occur on those premises, within the meaning of section 6 of the Drug Misuse and Trafficking Act 1985
  • Whether the Crown proved the requisite quantities of prohibited drugs for each count, specifically whether a large commercial quantity of MDMA (500 g) was established on the sampling evidence available
  • Whether the accused had discharged the onus under section 29 of the Act of proving, on the balance of probabilities, that the cannabis in his possession was held for personal use rather than supply
  • Whether lies told by the accused to police and in evidence were available as consciousness of guilt, or went only to credibility

Decision

Count 1: Manufacture of methylamphetamine

The forensic chemist, Dr Coghlan, gave unchallenged evidence that the contents of the rear shed were consistent with a completed process of manufacturing methylamphetamine from ephedrine, with 26.4 g of methylamphetamine calculated as present. His evidence was accepted as accurate and fair in all respects relevant to this count (at [99]-[108]). The court was satisfied beyond reasonable doubt that the accused knowingly provided the rear shed as premises for this process and permitted manufacturing steps to occur there. The accused was found guilty of Count 1 (at [165]).

Count 3: Manufacture of GBL

The court found overwhelming evidence of a self-contained manufacturing process for GBL within the rear shed, including a typed recipe for production, empty precursor packaging, all necessary equipment, and residues of the finished drug. Dr Coghlan's calculations, based on unaccounted-for quantities of GABA, sodium nitrite, hydrochloric acid, and dichloromethane, established that at least one process had produced not less than 4 kg of GBL, meeting the large commercial quantity threshold. The court rejected the possibility that the empty precursor packaging had been partly depleted elsewhere, noting an unopened package of sodium nitrite on the premises as inconsistent with that hypothesis (at [115]-[116]). The accused was found guilty of Count 3 (at [165]).

Count 2: Manufacture of MDMA — quantity issue

The court accepted that MDMA had been manufactured in the rear shed. However, the Crown's proof of a large commercial quantity (500 g) depended on a purity reading from a 1,000-litre IBC container of amber liquid waste. Dr Coghlan, on recall, confirmed that such a volume required mechanical homogenisation and multiple samples to produce a reliable purity figure. The Crime Scene Officer conceded he had neither homogenised the container properly nor witnessed it being done, and only one sample was tested. The court held it could not be satisfied beyond reasonable doubt of the accuracy of the purity reading, and therefore could not be satisfied the quantity reached the 500 g threshold (at [111]-[113]). Pursuant to section 24 of the Act, the court entered a guilty verdict on the available alternative count of knowingly taking part in the manufacture of an indictable quantity of MDMA (not less than 1.25 g) (at [166]). The evidence did not support a finding of a commercial quantity (between 125 g and 500 g) beyond reasonable doubt either (at [166]).

Credibility and consciousness of guilt

A central finding concerned the accused's credibility. He admitted in evidence to having told police several lies in his January 2018 electronic interview, including denying he smelled chemicals from the shed after being warned of a police investigation by his brother, denying knowledge of who gave him the Shellite containers, and denying knowing why the lessee approached him (at [132]-[133]). His account of the leasing arrangement was found to be riddled with contradictions and recent inventions. His claim not to know even the first name of the person to whom he had leased the shed was found to be a deliberate lie told because he feared the truth would implicate him in the offences (at [154]-[155]). The letter from his brother (Exhibit 1), disclosed only during cross-examination, had been received much earlier than the accused claimed and demonstrated that he was placed on notice of a police investigation well before the search, yet took no steps to investigate or report the matter, conduct the court found consistent with knowledge of what was occurring inside the shed (at [134]-[135]). The accused's denials of relevant knowledge were found to be devoid of credibility on the whole of the evidence (at [159]).

Count 4: Cannabis — possession for supply

The court found that the accused had discharged the onus under section 29 of the Act of proving, on the balance of probabilities, that the cannabis was in his possession for purposes other than supply (at [162]). The cannabis was of low grade, had been discarded and apparently forgotten, and the accused did not offer it for supply during September 2017 even when seeking cannabis for others. The botanist confirmed it was low-grade leaf cannabis with reduced active ingredient compared to cannabis heads. These circumstances were accepted as consistent with possession for personal use (at [163]). The accused was found not guilty of Count 4.

Orders Made

  • Guilty: Count 1 (knowingly taking part in manufacture of methylamphetamine, indictable quantity)
  • Guilty: Count 3 (knowingly taking part in manufacture of GBL, large commercial quantity)
  • Guilty: Alternative count to Count 2 (knowingly taking part in manufacture of MDMA, indictable quantity)
  • Not Guilty: Count 4 (supply of cannabis leaf)

Key Takeaways

  • Under section 6 of the Drug Misuse and Trafficking Act 1985, "knowingly taking part in manufacture" extends to a person who provides premises and permits manufacturing steps to occur there. The Crown is not required to prove that the accused personally conducted any manufacturing process or had knowledge of which specific prohibited drug was being produced (at [53], [65]).

  • A conviction for knowingly taking part in drug manufacture on circumstantial evidence does not require direct forensic links such as fingerprints or DNA connecting the accused to manufacturing equipment. The court may draw inferences from a combination of established facts, including proximity, access, conduct, and lies, provided no other reasonable conclusion is available from those facts considered as a whole (at [74]-[80], [159]).

  • Where the Crown relies on a purity reading from a large volume of liquid waste to establish a quantity threshold, evidence of proper homogenisation and adequate sampling is necessary before a court can be satisfied of that reading beyond reasonable doubt. A Crime Scene Officer's assumption that colleagues had followed best practice, without direct evidence of proper procedure, was insufficient (at [112]-[113]).

  • The District Court applied the consciousness of guilt framework carefully, distinguishing between lies that qualify as evidence of guilt and lies that go only to credibility. Even where lies were not treated as consciousness of guilt, the court held that the cumulative weight of multiple significant untruths across both the record of interview and trial evidence can render an accused's denials devoid of credibility on the central issues (at [151]-[155], [159]).

  • Partial acceptance of an accused's evidence is permissible. The court accepted the accused's account in relation to the cannabis count while rejecting his evidence on Counts 1 to 3, treating each count on its own evidence and noting that a rational basis exists for accepting parts of a witness's testimony while rejecting others (at [164]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986
- Drug Misuse and Trafficking Act 1985
- Evidence Act 1995

Cases
- Fleming v The Queen (1998) 197 CLR 250
- Siafakas v R [2016] NSWCCA 100