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District Court 9 May 2022

R v Leung; R v Webster (No. 4)

[2022] NSWDC 553

Drugs
CRIME CRIMINAL TRIAL BY JUDGE ALONE SUPPLY OF DRUGS

Citation: R v Leung; R v Webster (No. 4) [2022] NSWDC 553
Court: District Court of New South Wales
Date: 9 May 2022
Judge(s): Neilson DCJ

Background

Police executed a Criminal Organisation Search Warrant at a rented Birchgrove townhouse on 4 September 2019. The premises were leased by a third party with a significant prior criminal history in drug importation, who was absent at the time of the search. Two occupants were present: a woman who lived there as the leaseholder's partner, and a man who had been staying temporarily in a second bedroom since returning from overseas approximately five weeks earlier.

The search uncovered substantial quantities of cocaine, MDMA, methylamphetamine, heroin, and GBL, along with equipment consistent with cocaine extraction from paper impregnated with the drug. The laundry contained a still, isopropanol containers, a hydraulic press, and other materials associated with drug manufacture. The kitchen cupboard above the oven held numerous containers of drugs. The premises were, by any measure, extensively cluttered.

An indictment of eight counts was brought against the two accused in a trial by judge alone. The charges included manufacturing a commercial quantity of cocaine, knowingly taking part in that manufacture, supply of multiple drugs, and failure to inform police of a serious indictable offence. The Crown's entire case was circumstantial.

Legal Issues

  • Whether the Crown proved beyond reasonable doubt that cocaine was manufactured at the premises during the relevant periods, rather than merely stored there
  • Whether the Second Accused knowingly participated in manufacturing cocaine at the premises
  • Whether the First Accused had actual knowledge of any cocaine manufacture, sufficient to ground the charges of knowingly taking part and failing to report a serious indictable offence
  • Whether either accused was in knowing possession of the large drug quantities found throughout the premises, for the purpose of supply
  • Whether the Second Accused was in possession of the MDMA found in his bedroom for the purpose of supply
  • What weight, if any, should be given to DNA and fingerprint evidence that could not be dated to the time drugs were placed in containers

Decision

Count 1 (Second Accused: manufacturing a commercial quantity of cocaine): The court was not persuaded beyond reasonable doubt that cocaine manufacture occurred at the premises during the period from 30 July to 4 September 2019. The evidence was equally consistent with the manufacturing "kit" having been used elsewhere and merely stored in the laundry (at [186]). The cocaine detected in the extraction fan was insufficient to establish that an extraction process had taken place at the premises, because it could equally have resulted from someone smoking cocaine near the fan (at [100]-[102]). The fingerprints of the Second Accused on the still were explicable by his having packed or unpacked the equipment, not by his having operated it (at [187]). He was acquitted on this count.

Count 2 (First Accused: knowingly taking part in cocaine manufacture): The charge required proof of actual knowledge of the manufacture, its nature, and that the quantity was at least a commercial quantity of 250 grams. No direct evidence of such knowledge existed, and the court declined to draw the inference the Crown sought from the intimate relationship between the First Accused and the leaseholder (at [236], [248]-[249]). The First Accused's frequent overseas absences, her subordinate legal position in the premises, and her inability to prevent the leaseholder from doing as he chose on his own tenancy all undermined the Crown's case (at [241]-[244]). She was acquitted.

Count 3 (First Accused: failing to report a serious indictable offence): This count failed at the threshold because the court had not been satisfied that cocaine was manufactured at the premises at all (at [263], [266]). The Crown could not establish what specific information the First Accused held that would have been of material assistance to police, and the charge could not rest on mere inference from the presence of equipment (at [267]). She was acquitted.

Counts 4, 6, 7 and 8 (supply of cocaine, methylamphetamine, heroin and GBL by either accused): The court found that the large drug quantities found in the laundry, kitchen, bedroom 3, and the home office were more probably within the control of the leaseholder than of either accused. DNA and fingerprint evidence on containers did not establish knowledge or possession, because the evidence could not be dated and the containers had demonstrably been repurposed from ordinary domestic use (at [122], [198]-[199]). The Second Accused's temporary residence and limited standing in the premises were inconsistent with dominion over the quantities alleged (at [200]). Both accused were acquitted on these counts.

Count 5 (supply of MDMA): The court distinguished between the MDMA found in the Second Accused's bedroom and the larger quantity found in bedroom 3. The evidence established beyond reasonable doubt that the Second Accused purchased the capsule-filling equipment, that he was encapsulating MDMA, and that the 14.8 grams of MDMA found in his room was in his possession for the purpose of supply, being a trafficable quantity (at [205]). He was found not guilty of the charged offence (supply of a large commercial quantity) but guilty of the alternative: supply of a trafficable quantity. The First Accused was acquitted of the same count because there was no evidence she knew of the MDMA's presence (at [282]).

Orders Made

  • Second Accused acquitted on Count 1: manufacturing a commercial quantity of cocaine
  • Second Accused acquitted on Count 4: supply of a commercial quantity of cocaine
  • Second Accused found not guilty as charged on Count 5 (supply of a large commercial quantity of MDMA); found guilty of the alternative offence of supply of a trafficable quantity of MDMA
  • Second Accused acquitted on Count 6: supply of a large commercial quantity of methylamphetamine
  • Second Accused acquitted on Count 7: supply of a trafficable quantity of heroin
  • Second Accused acquitted on Count 8: supply of a commercial quantity of GBL
  • First Accused acquitted on Count 2: knowingly taking part in the manufacture of a commercial quantity of cocaine
  • First Accused acquitted on Count 3: failing to report a serious indictable offence
  • First Accused acquitted on Count 4: supply of a commercial quantity of cocaine
  • First Accused acquitted on Count 5: supply of a large commercial quantity of MDMA
  • First Accused acquitted on Count 6: supply of a large commercial quantity of methylamphetamine
  • First Accused acquitted on Count 7: supply of a trafficable quantity of heroin
  • Several sequences under the s 166 Certificate dismissed

Key Takeaways

  • The District Court confirmed that in a purely circumstantial "link in the chain" case, each essential intermediate fact must be proved beyond reasonable doubt before the tribunal of fact can proceed to draw any inference of guilt; if any essential link fails, the Crown's case must fail (at [165]-[168]).

  • DNA and fingerprint evidence establishes only that a person touched an object at some point; it does not establish when contact occurred, whether the object contained drugs at the time, or that the person had any knowledge of the drugs inside the container (at [122], [198]-[199]).

  • A conviction for knowingly taking part in drug manufacture requires proof of actual knowledge of the manufacture and of the commercial quantity involved; it is not sufficient to establish that a person lived with the primary manufacturer or was in an intimate relationship with that person (at [236], [248]).

  • Where drug manufacturing equipment is found on premises but evidence is equally consistent with storage after manufacture elsewhere, the Crown must adduce something more than the presence of the equipment to prove manufacture occurred at that location during the relevant period (at [186], [266]).

  • The prior good character of an accused person is a relevant factor in assessing whether the Crown has proved guilt beyond reasonable doubt, and a court must take it into account; it is not a defence, but it is one of the circumstances bearing on the likelihood that the accused committed the offences charged (at [173]-[174]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 ( Cth)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Alliston v R [2011] NSWCCA 281
- Attwood v R (1960) 102 CLR 353
- Braysich v R (2011) 243 CLR 434
- Melbourne v R (1999) 198 CLR 1
- Pereira v Director of Public Prosecutions (1988) 63 ALJR 1
- R v Jasper [2003] NSWCCA 186; (2003) 139 A Crim R 329
- R v Kuroz [2020] NSWDC 427
- R v Leung; R v Webster (No. 1) [2022] NSWDC 137
- R v Ruiz-Avila [2003] NSWCCA 264
- R v Sheen [2007] NSWCCA 45; (2007) 170 A Crim R 533
- R v Wass [2021] NSWDC 414
- Shepherd v R (1990) 170 CLR 573
- Wilson v Director of Public Prosecutions [2017] NSWCA 128