R v Boyd[2001] QCA 421

WILLIAMS JA:  The appellant was charged with four offences against the Drugs Misuse Act.  Count 1 alleged that on 19 August 2000 at El Arish in the State of Queensland he unlawfully produced a dangerous methylamphetamine and the quantity of the dangerous drug methylamphetamine exceeded the quantity prescribed in the Third Schedule of the Drugs Misuse Regulations 1987.

Count 2 alleged that between 10 October 1999 and 18 August 2000 at El Arish and elsewhere in the State of Queensland he unlawfully produced a dangerous drug methylamphetamine and the quantity of the dangerous drug methylamphetamine exceeded the quantity prescribed in the Third Schedule of the Drugs Misuse Regulations 1987.

Count 3 alleged that on a date unknown between 1 July 2000 and 1 August 2000 at El Arish or elsewhere in the State of Queensland he unlawfully supplied the dangerous drug methylamphetamine to Brian Douglas Williams.  Count 4 alleged that on 28 January 2000 near Ingham in the State of Queensland he unlawfully had possession of things for use in connection with the production of a dangerous drug, namely pseudoephrine and hypophosphorous acid. 

He pleaded not guilty to each of those charges and represented himself at his trial in the Supreme Court at Cairns.  The jury returned verdicts of guilty with respect to counts 1, 2 and 4 and found him not guilty on count 3. 

He has appealed against his convictions and sought leave to appeal against sentence.  At the outset the appellant was given leave to amend the notice of appeal by substituting the grounds specified in paragraph 4 of counsel's outline.  Essentially that involved contentions that the verdicts were unsafe and unsatisfactory, that count 2 was bad for duplicity, that there was a failure by the prosecution to particularise the production relied on in respect of count 2, that evidence was wrongly admitted of the appellant being found in possession of pseudoephrine and iodine in Western Australia on 11 October 1999, and other matters which need not be further particularised in these reasons.

The evidence with respect to count 1 was essentially that the police raided certain premises near El Arish referred to as a pig farm and there located various apparatus used for the production of methylamphetamine.  Chemical analysis revealed traces of methylamphetamine in the equipment, but apparently the analysis did not establish a specific quantity of that drug.

Significantly 23.656 grams of pseudoephrine was located and the evidence was that that was sufficient under ideal conditions for the production of 21.2 grams of methylamphetamine.

The second count on the indictment was not formally particularised.  It alleged production between 10 October 1999 and 18 October 2000, the latter day being the day before the raid which was the foundation of count 1.  There was some evidence that on occasions during that period of time, including for example the matters alleged in count 4, the appellant had in his possession chemicals which could have been used for the production of methylamphetamine.  But apart from evidence from Brian Douglas Williams there was nothing which established that the appellant had produced or attempted to produce methylamphetamine during that period.

Count 3 related to a supply of methylamphetamine to Williams.  Williams gave evidence at the committal proceedings and his evidence was to the effect that he had been supplied by the appellant with methylamphetamine on at least one occasion.  He also said that he had been to the property at El Arish on a number of occasions and had seen the appellant engaged in the production of that drug.

Evidence was admitted at the trial to the effect that Williams died approximately three weeks after giving evidence at the committal.  Based on that, his evidence at the committal proceedings was placed before the jury.  The learned trial Judge instructed the jury that they should treat that evidence with caution because he was not available for cross-examination and had not been seen by the jury.

It seems clear that the jury placed no weight at all on Williams' evidence.  If they had placed any weight on it at all then there would have been clear evidence of the supply of methylamphetamine, the subject of count 3.  But by returning the verdict of not guilty on that count one can infer that the jury substantially disregarded Williams' evidence.

There are major problems so far as the conviction on count 2 is concerned.  As I have said the evidence of Williams must be regarded as of dubious weight on the issue of production.  No other direct evidence of production was led.  All that one is then left with is the fact that on some two occasions at least during the period the appellant had in his possession chemicals which could have been used for the production of methylamphetamine.

One of those instances related to possession of some chemicals in Western Australia.  That was very sketchy and not capable on its own of advancing the prosecution case.  When one bears in mind the element of duplicity, the lack of particularity and the lack of positive evidence, I am firmly of the view that a conviction on count 2 was unsafe and unsatisfactory.  The conviction on count 2 should be set aside.  I should say that whilst the Crown did not concede that point it was not strenuously argued by the Crown that the conviction on count 2 could be sustained.

The appellant also raised a number of matters said to constitute grounds for setting aside the conviction on count 1.  In the course of the trial evidence was given of the finding of a telephone number linked to the appellant at an address at Camira. 

That was clearly inadmissible evidence.  There was no positive evidence linking the residence at Camira with the appellant and as soon as the evidence had been elicited, the learned trial Judge informed the jury that it was inadmissible evidence and they should disregard it.  The evidence was not so prejudicial to the accused as to warrant discharging the jury.

Then when the appellant gave evidence the learned trial Judge elicited from him that he had been in custody awaiting trial.  It is perhaps unfortunate that that was done, but as soon as the appellant warmed to giving evidence to the jury he, amongst other things, referred to the fact that he was the cook at the Lotus Glen prison.  There were other references in his evidence to the fact that he was in custody.  He also sought to make something of some of his criminal history before the jury. 

He was warned by the learned trial Judge of the dangers with respect to referring to such matters and it seems to me that in the circumstances there is no basis for concluding that the trial miscarried because of such matter getting before the jury.  In all the circumstances I can see no basis for setting aside the conviction on count 1 subject to what I now turn to, namely the issue of the circumstance of aggravation.

As already noted the indictment alleged as the circumstance of aggravation that the quantity of the dangerous drug methylamphetamine exceeded the quantity prescribed in the Third Schedule.  The evidence did not establish that.  At best for the prosecution the evidence established that the chemicals found at the location were more than sufficient to achieve a production of more than the quantity prescribed in the Third Schedule if the production proceeded successfully.

The wording in section 8 of the Drugs Misuse Act confirms the appropriateness of the wording of the circumstance of aggravation as set out in the indictment.  Relevantly paragraph (d) thereof says:

 "If the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987 Schedule 2 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation, then the higher range of imprisonment becomes relevant."

In other words the section itself seems to say that the quantity of the actual drug must be that which exceeds the prescribed amount.

Counsel for the Crown referred to the definition of "produce" in section 4 of the Act which includes:

 "Doing or offering to do any act preparatory to or in furtherance of or for the purpose of any act specified in paragraph (a)."

On the Crown argument the fact that there was sufficient chemical to permit of the production of more than the prescribed quantity meant that the offence with the circumstance of aggravation had been established.  That to my mind is placing a very strained construction on section 8(d) in particular.

In my view the circumstance of aggravation can only be made out when the actual quantity of the drug exceeds the prescribed amount.  That is not to say, of course, that the presence of such a large quantity of the chemical is irrelevant.  The presence of the large quantity of chemical shows the production potential and demonstrates the overall criminality of the offence of production in question.

In my view the circumstance of aggravation was not made out on the evidence in this case and the conviction as recorded on count 1 should be set aside and in lieu thereof the appellant should be convicted on count 1 of the offence that on 19 August 2000 at El Arish in the State of Queensland he unlawfully produced the dangerous drug methylamphetamine.

There is no basis for interfering with the conviction on count 4.

In those circumstances the question of sentence falls to be addressed by this Court.  We are concerned with a conviction for the offence of producing methylamphetamine, and a conviction on count 4 that on 28 January 2000 he had in his possession chemicals for use in connection with the production of a dangerous drug.  We have to have regard to the fact that on 19 August there were significant quantities of chemical present at the scene which were capable of producing a significant quantity of amphetamine.  And then we must have regard to the appellant's antecedents.

At the time he was 58 years of age, he would now be 59 or 60.  He has quite a significant criminal history which begins in 1962 and shows regular convictions for a variety of offences between then and the year 2000.  He does have previous convictions for drug-related offences.

In 1984 he was dealt with in the Cairns Magistrates Court for possession of a prohibited plant and sentenced to one month's imprisonment; then on 25 May 1994 he was convicted in the Cairns Magistrates Court of possession of a dangerous drug and fined $780.  Of greater significance is the fact that on 25 January 1996 he was convicted of being knowingly concerned in importing cannabis from Papua New Guinea and being in possession of a prohibited import.  He was sentenced on that occasion to two years' imprisonment with an order that he be released upon entering into a recognisance after nine months.  So he does have a significant prior conviction for being knowingly concerned in the importation of drugs.

Counsel for the appellant submitted that in the circumstances the relevant range was from three to five years' imprisonment.  Counsel for the Crown contended for a range of five to seven years.  In my view, taking everything into account, the appropriate sentence is that of five years' imprisonment.

The orders of the Court should therefore be:  on the appeal against conviction, allow the appeal to the extent that with respect to count 1 the conviction for the circumstance of aggravation is quashed; allow the appeal with respect to count 2 by quashing that conviction.  The appeal against conviction on count 4 is dismissed.

So far as sentence is concerned:  grant leave to appeal against sentence, allow the appeal.  On counts 1 and 4 order that the appellant be imprisoned for a period of five years and declare that the appellant was in custody from 19 August 2000 to 11 May 2001 a total of 265 days solely in relation to those offences and that is declared to be time spent under the sentence imposed by the Court.

...

DOUGLAS J:  I agree with the reasons of Justice Williams.

MULLINS J:  I also agree.

WILLIAMS JA:  The orders will be as I have indicated.