SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: I agree with Cullinane J's reasons for allowing the appeal, setting aside the convictions and allowing a retrial.

[2]  CULLINANE J: The appellant (who was unrepresented) appeals against his conviction on two counts under the Drugs Misuse Act in the Supreme Court at Brisbane on the 1st May 2008.  The counts upon which he was convicted were a count of unlawful production of methylamphetamine at Lockrose between 1 February 2007 and 13 July 2007 and of having in his possession on 12 July 2007 at Lockrose a quantity of glassware and chemicals for use in connection with the commission of the crime of producing a dangerous drug.

[3] Having been convicted of those two offences it was unnecessary for the jury to consider an alternative to those two offences which was count 3 in the indictment namely that being the occupier of the relevant premises he permitted them to be used for the commission of the crime of possession of things for use in connection with producing dangerous drugs.

[4] The appellant was sentenced on count 1 to nine months imprisonment to be suspended after three months with an operational period of two years and on count 2, to a term of three months.  The court ordered that upon his release after three months he was to be subject to a probation order for a period of 21 months.  He has now served the terms of actual imprisonment imposed.

[5] The grounds advanced by the appellant in his appeal are that the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence. 

[6] The issue which arises on an appeal on such grounds is whether upon the whole of the evidence it was open to the jury to be satisfied beyond a reasonable doubt that the appellant was guilty.  See MFA v the Queen (2002) 213 CLR 606.

[7] On the hearing of the appeal the court raised with counsel for the respondent a further matter which was not the subject of any ground of appeal by the appellant.  I will return to this shortly.

[8] The case against the appellant was entirely circumstantial.

[9] The dwelling at which the offences were committed was owned by a couple, Beverlee Ann Phillips and Jamie Brooke.  They had lived there for about three and a half years until Ms Phillips moved out at the end of 2006.  She returned to the property in April 2007 when Brooke was still there.  The appellant and one Tompkins were also present.  Brooke told Phillips in the presence of the appellant that the appellant was renting the premises, paying a rental of $225 per week and that he had just moved in.  Phillips indicated her acceptance of the appellant as a tenant.  She says that at that time she noticed that there was a good deal of furniture in the house which was neither hers nor that of Brooke.  According to Phillips, when she was there on that occasion, she noticed that what she described as her furniture had been taken out of various parts of the house and placed in a room.  The remainder of the rooms contained furniture such as a fridge, TV. dining suite, coffee table and the like which she said was furniture of the appellant.

[10] She saw a brick barbecue at the back of the house which she had previously seen at a house where the appellant and his partner lived. 

[11] Some weeks after she had been there in April 2007 she was contacted by Brooke and went to a real estate agent where papers were prepared for their signature.  These were to be delivered to the appellant.  She described these as an eviction notice.  She said that when the appellant did not leave it was necessary in July 2007 to take court proceedings. 

[12] On the morning of 12 July 2007 a number of police officers went to the house and executed a search warrant.  The appellant answered the front door and when the police entered the house they saw a young boy who is the appellant’s son and the man Tompkins.  The appellant said he lived at the dwelling whilst Tompkins gave an address at another location.

[13] There was a shed and two vehicles on the land, one of which was an unregistered yellow Corolla.  A black sports bag was retrieved from the back seat of that vehicle.  Phillips gave evidence that she and Brooke had purchased the Corolla from another person with assistance from the appellant.  When Phillips left in December 2006 the vehicle which was unregistered remained on the land.

[14] The black bag was found to contain a number of items including an improvised condenser, an electric heat source, two lengths of blue plastic hose, an electric pump, a PH tester, a glass dish and various other items.  The improvised condenser was found upon analysis to contain traces of pseudoephedrine as well as other chemicals normally found in cold and flu preparations.  The PH tester was found to contain traces of methylamphetamine and similar chemicals to that found in the condenser.

[15] Inside a drum in the yard of the house, the police found a number of partially burnt tablet blister packs.  The drum had apparently been used as an incinerator.  More blister packs were found underneath a barbecue plate.  Phillips said that the plate had not been at the house prior to her leaving.

[16] Inside the house itself, police found what was described as a laminated photograph of what appears to be scientific glassware (exhibit 16).  The police found a pressure cooker with a curved pipe welded to the top of it in a cupboard either under or near the kitchen sink (exhibits 17 and 18).  Again Phillips said that the pressure cooker had not been there when she had moved out.  On examination it was found to contain pseudoephedrine as well as certain other substances commonly found in cold and flu preparations.  On a kitchen bench, a glass bottle containing what was found to be an impure quantity of hypophosphorous acids was found whilst under the kitchen sink some 500 grams of Riocan brand caustic soda was found. 

[17] In the lounge room the police found a bottle of cleaner similar to a paint thinner.  On the dining room table, some two pieces of paper containing descriptions of scientific glassware were found. 

[18] On the barbecue to which reference has already been made, a bottle of methylated spirits was found whilst on the kitchen table a piece of paper with the drawing of a laboratory set up was found.  An electronic PH tester was found in a bathroom cabinet and methylamphetamine was detected on this.  A bottle of hydrochloric acid was found in the laundry.

[19] The prosecution called as a witness Dr Culshaw who is a chemist employed in the forensic chemistry section of the Queensland Health Scientific Services.  He described the means by which pseudoephedrine can be extracted from cold and flu tablets using methylated spirits or as an alternative it can be distilled out of cough syrup. 

[20] He described the chemicals which are necessary to undertake this process.  Two of the three chemicals were found at the premises.  His evidence went into some detail as to the steps in the process of converting cold and flu tablets into methylamphetamine and it is not necessary to relate the details here.

[21] Dr Culshaw also gave evidence of the equipment which is necessary or able to be used in this process.  He was taken through the various items which had been seized and identified the use that they would be put to in such a process.

[22] He had carried out or supervised the tests in which the traces of pseudoephedrine to which reference had been made were detected.  He also found other chemicals, traces of which were found and which are present in cold and flu preparations.  An analyst’s certificate (exhibit 70) was issued under his name.

[23] A fingerprint examination was carried out.  Whilst the prints of other unidentified persons were found on some items, the applicant’s fingerprint was found on exhibit 29 which is a plastic jug and also on exhibit 32, which is a beaker or flask.

[24] The evidence then as a whole was capable of supporting the inference that the applicant was an occupier and had been for some significant time.  There was nothing to suggest any other person was in residence at the relevant time.  The jury would have been entitled to conclude that equipment at and around the dwelling was capable of being used and that some of it had in fact been used in the production of methyl amphetamine. 

[25] The respondent points to a number of these items in particular the pressure cooker under the sink which bore traces of pseudoephedrine.

[26] The inference that the appellant had been a party to the production of methylamphetamine was an inference the jury could reasonably draw from the evidence outlined above.  It was open to the jury to conclude beyond a reasonable doubt that there was no hypothesis consistent with innocence open on the evidence.

[27] The applicant who was represented at the trial did not give evidence.

[28] In his preliminary remarks to the jury after empanelment the learned trial judge told the jury that at the end of the prosecution case, “the defendant will be asked if he intends to adduce or call evidence.  It is important to remember than a defendant is not obliged to give evidence or to call evidence.  The presumption of innocence applies.”

[29] At the conclusion of the prosecution case and in accordance with the requirements of s 618 of the Criminal Code the appellant was asked in the presence of the jury whether he intended to adduce evidence in his defence.

[30] His Honour after being told by counsel representing the appellant that his client did not intend to give or call evidence said to the jury: 

“As I told you earlier Mr Bevin has no requirement upon him to give or call evidence and he has elected not to give or call evidence, and that is consistent with the presumption of innocence which applies.”

[31] In the course of his summing up to the jury his Honour directed them in the following terms at   (R 98 and 99):

“As I said yesterday at all times during the trial the burden is on the prosecution to prove the guilt of the defendant. The defendant has no requirement, no burden to establish his innocence. He is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offence or offences charged.”

[32] His Honour repeated this (at R 100 and R 112):

“Of course, the defendant, as I have told you, doesn’t have to prove anything but the defendant is entitled to raise questions, raise doubts.”

[33] Earlier at R 103 his Honour had given the jury appropriate instructions as to the burden resting upon the prosecution in the case of a circumstantial case which he emphasised was what the jury was concerned with in this case.

[34] However his Honour did not at any time in the course of his summing up comment upon the significance of the failure of the appellant to give evidence or the use which the jury might, or more correctly might not, make of such a failure.  Counsel who represented the appellant did not seek any redirection on the issue.

[35] Counsel for the respondent before us was asked to address this matter and we had the benefit of submissions from him. 

[36] The leading Australian authority on the subject is Azzopardi v The Queen (2001) 205 CLR 50.  In paragraph 51 of the joint judgment of Gaudron, Gummow, Kirby and Hayne JJ, the principle was stated:

“It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make weight in assessing whether the prosecution has proved its case beyond reasonable doubt.”

[37] Queensland unlike other Australian States does not contain any statutory prohibition or comment about the failure to give evidence by an accused person by the court.  Indeed the combined effect of s 618 and 620 (1) of the Criminal Code is regarded as (to use the words of McPherson JA in R v DAH (supra) at paragraph 4), formally authorising a judge in Queensland to comment on the accused’s failure to give evidence.

[38] However notwithstanding this, it is clear that the judgment of the High Court in Azzopardi (supra) applies in Queensland in the same way as it does in other Australian States.

[39] As will be seen in the passage set out above in Azzopardi the principle is not expressed in unqualified terms.  There is a category of case of which perhaps the leading example is to be found in Weissensteiner v The Queen (1993) 178 CLR 217 in which it is permissible for a judge to comment upon the failure of an accused person to give evidence.

[40] Counsel for the respondent here expressly disavowed any suggestion that this case fell into any special category of cases.

[41] In R v DAH [2004] QCA 419 the Queensland Court of Appeal had to consider whether the directions given by the trial judge in that case met the test in Azzopardi.

[42] In the course of their judgments both McPherson JA and White J (with whom the other member of the court agreed), outlined the development of the relevant principles surveying the cases through which this had occurred culminating in Azzopardi’s case.

[43] At paragraph 83 of the judgment of White J, her Honour identified the rationale of the principle:

“However if a judge makes no comment on the failure of the defendant to give evidence the jury may well use that silence to the defendant's detriment.”

[44] The risk then against which the directions are intended to guard is that identified by White J in R v DAH (supra) and is guarded against by the giving of directions in accordance with although not necessarily in precisely identical terms to the passage in Azzopardi set above

[45] The failure to give any direction on the issue was presumably an oversight.  It must be regarded as a serious defect in the learned trial judge’s directions to the jury.

[46] In R v Macris (2004) 147 A Crim R 99, the New South Wales Court of Criminal Appeal was concerned with a conviction following trial of certain drug offences.  The issue before the court had been whether the accused had possession of the prohibited drugs.  When he had been arrested he denied that there were drugs on the premises and made no admissions and did not give evidence.  Drugs were found during a search under a search warrant.  A witness for the defence was called to testify that he had placed the drugs where they were found and that he had done so as an act of revenge.

[47] The learned trial judge in his summing up made no reference to the absence of the accused from the witness box.  Counsel who represented the appellant did not seek any redirection on the issue.

[48] Hislop J (with whom the other members of the court agreed) said about this:

“This omission involves error. Although the Azzopardi direction does admit of cases where a direction in its terms may not be necessary (“… almost always be desirable…)” there is nothing in the facts of this case which would make such a direction inappropriate. 

I therefore conclude that his Honour’s direction was deficient in that it made no reference to that part of the Azzopardi direction that the accused’s silence may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a make weight in assessing whether the prosecution has proved its case beyond a reasonable doubt.

Counsel at the trial did not object to his Honour’s direction. It is true that if the objection had been taken at the trial, the deficiency could have been easily corrected. However the deficiency in the direction gives rise to the possibility of a real injustice being occasioned to the appellant. Accordingly I would grant leave under rule 4 and would uphold the appeal on this ground.”

[49] I do not lose sight of the fact that in that case, unlike in Queensland, the accused would not have been called upon in open court to state whether he intended to adduce evidence.  In addition it would appear that the jury in that case had at the conclusion of counsel’s addresses, asked why it was that the accused had not been called as a witness.

[50] Notwithstanding this however, the matter appears to have been dealt with as a matter of general principle rather than by reference to any particularities of the case.

[51] Counsel for the respondent before us did not advance any particular reason why a direction as to the failure of the accused to give evidence should not have been given.

[52] In my view the failure to give such a direction must be taken to have resulted in a miscarriage of justice.

[53] I would allow the appeal, set aside the convictions and order new trials on each count.

[54] ATKINSON J: I agree with the reasons of Cullinane J and the orders proposed by his Honour.