R v O'Neill[2010] QCA 111

SUPREME COURT OF QUEENSLAND

[1] McMURDO P: The appellant, Kevin John O'Neill, pleaded not guilty in the Supreme Court at Brisbane to one count of producing a dangerous drug, namely, methylamphetamine (count 1), and to the alternative count of permitting a place to be used for the commission of the crime of producing dangerous drugs (count 2).  Both counts were said to have been committed on a date unknown between 5 and 13 March 2008 at O'Neill's home at McGregor Street, Kippa-Ring.  Daubney J conducted a pre-trial hearing on 25 March 2009 under s 590AA Criminal Code and made an order allowing the prosecution to lead evidence at O'Neill's pending trial on counts 1 and 2 about his previous production of a dangerous drug, methylamphetamine in 2003 and his subsequent conviction.  O'Neill's trial commenced on 27 July 2009 before another judge.  Defence counsel unsuccessfully applied to the trial judge to exclude the evidence about the 2003 production and subsequent conviction.  On 29 July 2009, O'Neill was found not guilty on count 1 but guilty of count 2.  He was ordered to serve the balance (nine months) of an earlier 18 month sentence which had been partially suspended, and sentenced on count 2 to serve 18 months cumulative imprisonment, an effective sentence of 27 months imprisonment.  The judge ordered that he be released on parole on 29 July 2010, that is, after serving a total of 12 months imprisonment.

[2] He appeals only against his conviction.  His contentions are as follows.  Daubney J's pre-trial ruling, and the trial judge's subsequent ruling allowing evidence to be given at trial of O'Neill's 2003 conviction were wrong.  Even if that evidence was admissible on count 1 on which O'Neill was acquitted, it was not admissible on count 2 on which he was convicted.  There was a miscarriage of justice because the trial judge failed to warn the jury that the evidence of the 2003 production was inadmissible on count 2.

[3] Before returning to these contentions, it is necessary to set out something of both the pre-trial hearing and ruling, and the subsequent jury trial.

The pre-trial ruling

[4] The prosecution sought to lead evidence at the appellant's trial on counts 1 and 2 of his conduct on 4 May 2003 when police found him producing methylamphetamine at his residence at McGregor Street, Kippa-Ring and as to his subsequent plea of guilty to and conviction of that offence.  The prosecution submitted that the evidence of this 2003 episode was relevant to rebut innocent association with the items which could be used in methylamphetamine production found in O'Neill's shed at McGregor Street, Kippa-Ring on 12 March 2008.  The prosecution also contended the evidence of 2003 events was proof that O'Neill had knowledge about the production of methylamphetamine; and identified him "as the perpetrator rather than any other occupant of the house".  The prosecution submitted that the significant similarities between the 2003 events and the present count 1 were that both involved the same residence, the same drug and similar property capable of being used in methylamphetamine production. 

[5] The defence contended that these circumstances were not sufficiently similar to lead to the conclusion that there was no rational inference consistent with innocence which could be drawn from them.  The defence placed particular emphasis on the long period of time between the two episodes.

[6] Daubney J determined that the similar fact evidence of the 2003 events proposed to be led by the prosecution as proof of the present offences, if accepted by the jury as true, would be probative of proof of O'Neill's knowledge of the production of methylamphetamine.  An inference could be drawn from this to connect O'Neill with the objects found in the shed in the 2008 police search.  Adopting the approach taken by the High Court in Pfennig v The Queen;[1] HML v The Queen[2] and Phillips v The Queen[3] Daubney J concluded that there was no reasonable view of the similar fact evidence of the 2003 events consistent with O'Neill's innocence on the 2008 offences.

[7] At no time did counsel or the judge discuss whether, or make clear that, the similar fact evidence was admissible only in respect of count 1 as distinct from generally admissible at the trial on both counts 1 and 2.  That is of some significance as counsel for the respondent in this appeal, Mr Lehane, now concedes that the evidence about the 2003 conviction was not relevant to count 2 on which O'Neill was convicted; it was only admissible on count 1 on which O'Neill was acquitted.

The present trial

The pre-trial ruling re-visited

[8] Defence counsel re-visited Daubney J's ruling before the trial judge contending that the admission of the evidence was far more prejudicial than probative so that it should be excluded at common law or under s 130 Evidence Act 1977 (Qld) and that this point was not argued before Daubney J.  Her Honour concluded that this question was raised before Daubney J and formed an essential aspect of his ruling based on Pfennig allowing the evidence of the 2003 events to be given as similar fact evidence at the present trial.  The trial judge accordingly rejected the defence application.  Once more, neither counsel nor the judge discussed whether, or made clear that, the similar fact evidence was admissible only in respect of count 1 as distinct from generally admissible at the trial on both counts.

Aspects of the prosecution opening

[9] In opening the prosecution case, the prosecutor set out the evidence to be given in respect of O'Neill's 2003 production of methylamphetamine and subsequent conviction.  She also referred to other evidence to be called in the case and briefly to the relevant law.  She concluded her address in this way:

"So the Crown case is this: that there has been a successful production at 5 McGregor Street Kippa-Ring which ultimately, I'd submit to you, will be evidenced by the presence of the cold and flu tablets. All of the ingredients necessary to make methylamphetamine are found in that glass on the shelf in the shed including traces of methylamphetamine and the end product is present in that glass and in a syringe.

You'd be satisfied, I'd submit to you, that by [O'Neill's] possession of the keys to that shed, his agitation in opening the shed, his fingerprints which were found on the coffee filter papers and his knowledge of how to produce methylamphetamine coming from his earlier involvement in 2003, that he, in fact, produced – he, either alone or with others, produced methylamphetamine.

So that's really the Crown case and that's the ultimate submission I'll be making to you.  You have heard that there is an alternative charge.  So if you are not satisfied beyond a reasonable doubt of his guilt with respect to that charge that he produced methylamphetamine, then you'll need to go on to consider the second – the alternative charge, that on the same dates he, being the occupier of 5 Macgregor Street, Kippa-Ring, permitted it to be used for the commission of the crime of producing dangerous drugs which really means what is says, he permitted his premises to be used to produce dangerous drugs.

But ultimately the Crown case will be that he is the person, either alone or with others, who was producing methylamphetamine in that time period at that house."  (my emphasis)

The evidence of O'Neill's production of methylamphetamine on 4 May 2003

[10] The prosecution led the following evidence at the trial the subject of this appeal as to his 2003 production of methylamphetamine and subsequent conviction.  Police executed a search warrant at O'Neill's home at McGregor Street, Kippa-Ring.  When they arrived they could see three people, including O'Neill, in the kitchen.  All three were involved in producing what was later found to be methylamphetamine.  O'Neill was at the stove with another man.  A third man was comparing glasses of fluid.  Police knocked on the door.  O'Neill took a pyrex dish out of the kitchen in the direction of a bedroom.  Police later found a pyrex dish in a cupboard in a bedroom.  O'Neill answered the door.  He said something like, "I'm not wearing this on my own."  Police found items, including O'Neill's wallet and other identification in the shed adjacent to O'Neill's home, together with other items relevant to methylamphetamine production.  Police took photographs of objects found in the kitchen and the shed.  These were tendered in the present trial.[4]

[11] The trial judge gave no directions to the jury as to the use to be made of this evidence at the time it was given.

[12] Evidence was also given, in a form agreeable to O'Neill's counsel at trial, that on 20 May 2005 O'Neill pleaded guilty to production of methylamphetamine. 

Other evidence

[13] Police executed a search warrant at O'Neill's residence at 5 McGregor Street, Kippa-Ring, at 7.38 am on 12 March 2008.  He was home with his elderly mother and two small children.  Police did not locate anything of interest in the house.  They then conducted a search of a shed locked with a padlock at the rear of and close to the house.  O'Neill appeared to have difficulty when unlocking the shed at the request of police and became agitated.  The shed was packed with assorted items including tools, blankets, clothing and furniture, and in disarray.  Police had to remove large quantities of items in conducting their search. 

[14] Police noticed a strong chemical smell in the shed.  In and around the shed, police found various chemicals and other items which could be used in the production of methylamphetamine.  These included a drinking glass containing a cloudy liquid; a bottle of caustic soda; a bottle of hydrochloric acid; a pyrex dish; two "Dick Smith" brand pH meters; and a broken 375 watt heat lamp bulb.  A later analysis of the bulb detected either ephedrine or pseudoephidrine, the presence of which was consistent with the lamp's use in the production of methylamphetamine.  The liquid in the glass was later analysed and found to contain traces of methylamphetamine and pseudoephidrene, consistent with the use of the glass in producing methylamphetamine.  Police found part of a light bulb and a coffee filter in a wheelie bin.  In a toiletries bag inside the shed, police found a syringe containing liquid later analysed as including methylamphetamine and other substances. 

[15] The material and items found in the shed were not in any way assembled into an operational laboratory capable of producing methylamphetamine.  Police located 10 full packets of Telfast cold and flu tablets, all labelled as dispensed to "Colin Smith" on 8 March 2008, in a plastic bag in a compost bin.  Police were unable to locate Colin Smith. 

[16] Police found a tri-neck reaction vessel in a red Commodore motor vehicle belonging to the partner of O'Neill's friend, Brett Athorn.  The car was parked in a car port adjoining O'Neill's house and shed.  Police found five empty packets of cold and flu tablets, dispensed to "Anthony Castles" in either February or March 2008, in the red Commodore.  Police were unable to locate Anthony Castles. 

[17] Photographs of the shed, Commodore, house and relevant items were tendered.[5]

[18] Brett Athorn gave evidence which included the following.  The reaction vessel in his car belonged to him but he used it as a pot plant holder, not to produce unlawful drugs.  He agreed he was a long term amphetamine user and that he had a conviction for drug production but he denied the drug that he produced was methylamphetamine.  He denied that he owned any of the empty boxes of Telfast found in his car; the syringe; the hydrochloric acid; the pH meters or the caustic soda.  He agreed that he stored property in O'Neill's shed and that he had a key to the shed.  He dropped off to and collected his property from the shed as it suited him.  It was not necessary for him to gain access to O'Neill's house to do this as he could access the shed from the back of the property. 

[19] He agreed that he had provided a statutory declaration to O'Neill's solicitors in these terms:

"I, Brett Athorn, I had my property stored at Kevin O'Neill's house, to which he had … no knowledge of what was there.  It has come to my attention that he has since been charged with these items."

He agreed that he would not have made the statement if it was not true. 

[20] In re-examination he denied ever producing methylamphetamine in O'Neill's shed.

[21] A police officer gave evidence that on 19 June 2008 he executed a search warrant on Athorn's Kingaroy residence and located a drug production laboratory.  Athorn admitted to him that he extracted pseudoephidrine from tablets.  Athorn was charged with and later pleaded guilty in the Kingaroy Magistrates Court on 25 September 2008 to production of methylamphetamine. 

[22] A forensic chemist, Urs Dieter Wermuth, gave evidence explaining the process of methylamphetamine production from cold and flu tablets.  A number of the items found in the search of O'Neill's shed could be used to produce methylamphetamine.  At least some of these items had been used in a stage of production of methylamphetamine.  Methylamphetamine was found in the syringe; in the liquid decanted from the glass, and in the residue in the broken 375 watt bulb.  The coffee filter paper contained a brown powder which was not coffee but was not analysed as a dangerous drug.  He agreed that some of the items found (such as sugar (glucose), heating items, pH meters, Epsom salts and filters) can be used in brewing beer.  Caustic soda and hydrochloric acid can be used for cleaning purposes associated with the brewing of beer.

[23] O'Neill's fingerprint was found on a box of coffee filters located in the shed.  A fingerprint belonging to Kenneth Patterson was found inside a box containing pH meters.  A fingerprint belonging to Anthony Castles (the name appearing on empty Telfast boxes found in the red Commodore) was also found. 

[24] Kenneth Patterson gave evidence that he knew Athorn but not O'Neill.  He sold Athorn some car parts.  He could not explain how his fingerprint came to be on the inside of the box of pH meters; he had never used pH meters.

Counsel's addresses to the jury

[25] The prosecutor in her closing address to the jury referred to the evidence of the circumstances surrounding O'Neill's 2003 production of methylamphetamine and his subsequent conviction for it only in her discussion of count 1.  The prosecutor addressed the jury primarily in respect of count 1.  She made only passing reference towards the end of her address to count 2.  The prosecutor did not directly suggest that the evidence of O'Neill's 2003 production of methylamphetamine was relevant to count 2.

[26] Similarly, defence counsel's closing address to the jury focussed almost entirely on count 1.  He made no reference to the evidence concerning O'Neill's conviction for the 2003 production of methylamphetamine. 

Relevant aspects of the trial judge's directions to the jury

[27] The judge gave the following relevant directions.  The case turned on circumstantial evidence.  Police found items able to be used in drug production in the shed at O'Neill's premises.  The prosecution asked the jury to infer from that circumstance that drugs were produced there and to infer from O'Neill's 2003 production of methylamphetamine, plus his agitation when he opened the shed, that he was the person who produced it.  The judge warned the jury that to convict on circumstantial evidence they must be satisfied that guilt should be not only a rational inference but the only rational inference to be drawn from the circumstances.  If there was any reasonable possibility consistent with innocence, they must find O'Neill not guilty. 

[28] The judge explained the elements of count 1, production of the dangerous drug methylamphetamine (on which the jury acquitted him).  The judge then referred to the evidence of the items found at O'Neill's premises in March 2008 and the evidence of the forensic chemist, Mr Wermuth, including his evidence that most of those items had an ordinary and legitimate household use.  She invited the jury to consider whether the accumulation of all of those items identified in the shed were together sufficient for them to conclude that a production or a "cook" had occurred there. 

[29] The judge warned the jury that if they concluded there had been, in the recent past, a production of methylamphetamine, that was not on its own enough to convict O'Neill.  The next step was to consider whether it was O'Neill who produced the methylamphetamine.  He lived at the premises.  Police claimed he was agitated when he opened the door.  On the other hand, his fingerprint was found only on the coffee filter papers box.  There was no caffeine on the filter paper.  Mr Athorn had a key to the shed and was a long term user of methylamphetamine with a prior conviction for its production.  If the jury had a reasonable doubt about whether O'Neill produced the drug, they must acquit him. 

[30]  As to the evidence of O'Neill's 2003 production of methylamphetamine, the judge added:

"Another factor which might point to Mr O'Neill as the producer of the dangerous drug is his plea of guilty to the production of methylamphetamine in 2003. Now, how can you use this piece of information? Well, one way you cannot use it is to argue that because he did it once in the past then he's likely to have done it this time. That's not a permissible chain of reasoning. What you must do is to look and see if there are a number of striking similarities between the 2003 production and the facts here so as to rule out coincidence beyond reasonable doubt.

The first similarity is the address is the same, and some years have elapsed, of course. O'Neill lived at 5 McGregor Street in 2003 and was charged with producing methylamphetamine there then. The drug is the same. Also that evidence shows that he knew how, by his plea of guilty, how to make or to produce methylamphetamine.

You might conclude, however, that these factors are insufficient to rule out coincidence, particularly, when you take in to account Brett Athorn's access to the shed. So, if you're satisfied that methylamphetamine was unlawfully produced at 5 McGregor Street, Kippa Ring in or about March 2008 and that Mr O'Neill was the one who did the production, or if you have no reasonable doubt about any element of that offence, then you would convict him; that is, you'd find him guilty."  (my emphasis)

[31] The judge then set out the elements of and evidence relevant to count 2 which alleged that O'Neill as occupier permitted the premises to be used for the commission of the crime of producing a dangerous drug (on which the jury convicted him).  The judge made no reference at all to the evidence of O'Neill's 2003 production of methylamphetamine and his conviction for that offence in her direction to the jury on count 2.

[32] The judge concluded her directions by summarising the prosecution and defence submissions.  She reminded the jury that the prosecutor emphasised that O'Neill's 2003 offending meant that he knew how to produce methylamphetamine because he had done so before and at the same house.  Her Honour reminded the jury that defence counsel emphasised that O'Neill's production of methylamphetamine in 2003 did not mean that he was likely to be the person to have done it again on this occasion; the jury would not be satisfied he did; Athorn was disreputable and had the opportunity to produce the drug. 

The appellant's contentions

[33] O'Neill's counsel in this appeal makes the following contentions.  The similar fact evidence as to O'Neill's 2003 production of methylamphetamine and his subsequent conviction for it were not admissible to prove count 2.  That evidence had no probative value; or, if technically admissible, its probative value was far outweighed by its prejudicial effect: cf Pfennig.[6]  The 2003 offending occurred five years before the time of the present charges.  This long period of time displaced any value the evidence may have had in rebutting the suggestion of innocent association.  As far as count 2 was concerned, the evidence of the 2003 events was evidence only of O'Neill's general disposition and was inadmissible.

[34] O'Neill's counsel further contends that the judge's failure to specifically direct the jury that the similar fact evidence could not be used in considering count 2 has caused a miscarriage of justice.  There was a real danger, he submits, that the jury may have impermissibly used that evidence of propensity in convicting the appellant on count 2.  This error has resulted in a miscarriage of justice.  The appeal should be allowed, the conviction set aside and a re-trial ordered.

The respondent's contentions

[35] Counsel for the respondent in this appeal makes the following submissions.  He emphasises that evidence of O'Neill's 2003 production of methylamphetamine was admissible on count 1 to show that O'Neill had some knowledge of the production process.  He concedes, however, that the evidence of the 2003 events was inadmissible on count 2.  But he submits that the jury's acquittal of O'Neill on count 1 demonstrates that they did not engage in propensity reasoning.  The judge's directions made clear that the evidence of the 2003 events and O'Neill's conviction for them was admissible only in respect of count 1.  There was no prospect that the jury could have improperly used the evidence in respect of count 2.  The evidence against O'Neill in respect of count 2 was overwhelming.  No miscarriage of justice has resulted from the jury's conviction on count 2.  This Court would be persuaded that, on the evidence properly admitted at trial, his guilt was proved beyond reasonable doubt.  There has been no miscarriage of justice and the appeal should be dismissed.

Conclusion

[36]  As O'Neill was acquitted on count 1, in determining this appeal it is not strictly necessary to determine whether the evidence of O'Neill's 2003 production of methylamphetamine and his subsequent conviction for it was rightly admitted in respect of count 1.  But in my view, Daubney J and the trial judge correctly applied Pfennig, HML and Phillips in admitting the evidence on count 1. 

[37] The respondent rightly concedes, however, that the evidence was inadmissible in respect of the alternative count 2, permitting the shed to be used for producing methylamphetamine.  The elements of the offence charged in count 2 are quite distinct from the elements of count 1, which was brought under the same provisions as the charge of production of methylamphetamine in 2003 to which O'Neill subsequently pleaded guilty.  Unfortunately, neither Daubney J, the trial judge, nor trial counsel turned their minds to whether the evidence of the 2003 events amounted to similar fact evidence on count 2.  It did not.  Admission of evidence of this kind is exceptional in our criminal justice system.  When it is admitted, great care must be taken by counsel, and particularly by the trial judge, to ensure the jury understands the proper limits of its use.  The jury should have been directed that the evidence of O'Neill's 2003 methylamphetamine production was relevant only to count 1 and not relevant to count 2, ideally both when the evidence was given and in the judge's final directions.  The jury were never given that direction.  Regrettably, neither counsel requested a re-direction, no doubt because the principal issue at trial was whether O'Neill was guilty or not guilty of count 1. 

[38] Juries are commonly instructed where there are multiple counts to consider each charge separately and to evaluate only the evidence relating to that particular charge in deciding whether they are satisfied beyond reasonable doubt that the prosecution has proved its essential elements.  Unusually, the trial judge did not give this direction in this case.  Whilst her Honour gave careful directions to the jury as to the limited use of the 2003 events and O'Neill's related conviction when discussing count 1, the judge did not direct the jury that the evidence was inadmissible in respect of count 2. 

[39] I am unable to accept the respondent's contention that the jury would have understood from the judge's directions that the evidence was relevant only to count 1 and not count 2.  In the absence of such a clear direction, it is quite likely that the jury considered the evidence was relevant to both counts.

[40] Nor can I accept the respondent's contention that, because the judge properly instructed the jury on count 1 as to how to use the evidence of the 2003 production, the jury would inevitably have understood that they could not use propensity reasoning in considering count 2.  I have emphasised the exceptional nature of similar fact and propensity evidence.  When it is admitted, it requires clear and express jury directions as to its use.  As I have explained, the jury should have been directed that the evidence of the 2003 production was not admissible in respect of count 2.  The jury, in acquitting O'Neill on count 1, clearly had a doubt as to whether he was knowingly involved in the production of methylamphetamine in the shed.  In the absence of a direction from the judge that the evidence of the 2003 production was not admissible on count 2, there is a real danger that the jury may have reasoned as follows.  They may have determined to convict him on count 2 because his prior involvement in the 2003 production of methylamphetamine suggested that he must have knowingly permitted Athorn to produce methylamphetamine in the shed.

[41] Although the case against O'Neill on count 2 was well capable of supporting a guilty verdict, his conviction was by no means inevitable.  There was evidence that Athorn had ready access to the shed without O'Neill's permission or knowledge being necessary.  Athorn had a prior history of producing methylamphetamine.  The cluttered and messy state of the shed may have made it difficult for O'Neill to know what was in there.  The inadmissible evidence on count 2 of O'Neill's 2003 production of methylamphetamine and his related conviction could well have been improperly used by the jury as evidence of propensity to fill in gaps in the prosecution's circumstantial case on count 2.  The unsatisfactory jury directions on count 2 may well have caused a substantial miscarriage of justice; s 668E(1A) Criminal Code cannot be invoked to dismiss the appeal.

[42] I would allow the appeal, set aside the conviction on count 2 and order a retrial.

[43] MUIR JA: I agree with the orders proposed by McMurdo P and with her reasons for them.

[44] FRASER JA: I have had the advantage of reading the President's reasons for judgment.  I agree with those reasons and with the orders proposed by her Honour.