Falzon v State of Queensland[2016] QCA 118

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  I agree with Gotterson JA’s reasons for allowing this appeal and with the orders proposed.

[2] GOTTERSON JA:  By a judgment given on 18 May 2015, orders were made by a judge sitting in the Trial Division on applications filed by the respondent to this appeal, the State of Queensland.[1]  Both applications were for proceeds assessment orders.  They were both filed in the proceeding BS3879 of 2004.  One application was against James Thomas O'Brien.[2]  The other application was against Michael Paul Falzon, the appellant in this appeal.  It was filed on 14 July 2004.[3]  In the proceeding at first instance, O'Brien was named as the First Respondent and Falzon as the Second Respondent.

[3] Under the judgment it was ordered that pursuant to s 78 of the Criminal Proceeds Confiscation Act 2002 (Qld) (“the Act”), the appellant and O'Brien each pay to the State of Queensland, the sum of $14,051,238.56, being the apportioned value of the proceeds derived by them from illegal activity.  It was further ordered that the appellant pay the State of Queensland’s costs of, and incidental to, the application against him, on the standard basis.

[4] The appellant has appealed to this Court pursuant to s 263 of the Act against the judgment.  In his Notice of Appeal,[4] he seeks orders that, in effect, there is no amount that he is to pay to the respondent pursuant to s 78, and that the respondent pay his costs of, and incidental to, both the application and the appeal, on the standard basis.[5]

[5] Initially, the appellant acted for himself in the appeal.  However, after written submissions were exchanged,[6] conduct of the appeal was undertaken by Mr S Courtney of counsel on instructions from Butler McDermott Lawyers, both of whom acted in the appeal pro bono.  They had represented the appellant at first instance.  A document titled Appellant’s Reply, prepared by Mr Courtney, was filed on 25 November 2015.  There had been no appearance by or for O'Brien at first instance.

The convictions

[6] O'Brien was convicted on 28 May 2008 of trafficking in the dangerous drugs methylamphetamine and cannabis on dates unknown between 1 July 1997 and 1 October 2003 at Ilbilbie, near Sarina in Central Queensland.  He was also then convicted on seven counts of producing methylamphetamine at Ilbilbie and several other places.  His appeal to this Court against the convictions was dismissed in April 2009.[7]

[7] On 18 May 2009, the appellant was convicted on one count of unlawfully trafficking in methylamphetamine on dates unknown between 1 July 1997 and 16 February 2001 at Ilbilbie and elsewhere in Queensland.  He was also convicted on two counts of unlawfully producing methylamphetamine between those two dates at Ilbilbie.  The Crown case was that the appellant produced and trafficked drugs in collusion with O'Brien.[8]  The appellant was sentenced to 10 years’ imprisonment.  His appeal to this Court against the convictions was dismissed in December 2009.[9]

The judgment at first instance

[8] The learned primary judge found that, in the appellant’s case, it was more probable than not that within the six year period immediately prior to the filing of the application against him, he had engaged in a serious crime related activity, namely, the unlawful trafficking in, and production of, methylamphetamine.[10]  That finding having been made, s 78(1) of the Act required the court to make a proceeds assessment order against the appellant.  This finding is not challenged on appeal.

[9] His Honour further concluded on the balance of probabilities that the appellant and O'Brien were involved in a “sophisticated joint criminal enterprise involving the trafficking of methylamphetamine on a commercial scale”.[11]  In reaching this conclusion and in making findings to which I shall refer, his Honour relied on the evidence of Debra Ann Dangerfield, a former partner of O'Brien, and her son, Corey Reece Dangerfield.  The evidence of each of those witnesses included evidence of acts carried out, and statements made, by O'Brien not in the presence of the appellant.

[10] It is of some significance for this appeal, that counsel for the appellant conceded in oral argument that it was open on the evidence for his Honour to have found that the appellant and O'Brien were together involved in the production of amphetamines in the period from 3 March 1999 to 5 October 2000.[12]  There was evidence at first instance that a product‑supply business, PJ Evans & Co of Rockhampton, had supplied hypophosphorous acid on order from an entity variously described in its sale records as “Joy Mining” or “Joy Mining Manufacturing”.  The acid was supplied over 10 deliveries made between those two dates.  The acid was in 2.5 litre bottles.  Four of the deliveries were of four bottles each; the other six were of eight bottles each.  In all, 160 litres of the acid were delivered on order from this customer.[13]

[11] Hypophosphorous acid has an industrial use for cleaning steel in a blast chamber under high pressure.  At the time, it was also a restricted substance because it was a key ingredient used for the production of the illegal drug amphetamine.[14]

[12] Joy Manufacturing Company Pty Ltd (“Joy”), at the time, carried on business under the name “Joy Mining Machinery” at premises in Featherstone Street, Rockhampton.  Its business was the development, manufacture, distribution and service of underground mining machinery for the extraction of coal and other bedding materials.  It had a depot at Emerald.

[13] Evidence at first instance was that Joy’s business records revealed that an employee, Edmistone, had prepared and submitted purchase orders for the procurement of batches of hypophosphorous acid from PJ Evans & Co over the period of 20 months immediately prior to 5 October 2000.  Edmistone had not been authorised to place the orders by his employer.  Joy never used hypophosphorous acid to service underground mining machinery.  Notwithstanding, the declaration accompanying each purchase order falsely stated that the acid was solely for “Underground Mining Machines” use.  Joy’s business records also revealed that the acid that had been ordered was delivered to its store and then moved into its workshop.  No inventory of it was kept and trace of it was lost at that point.[15]

[14] Debra Dangerfield’s brother, Glen Dakin, was an employee of Joy from at least 1997 until 14 February 2001.  Her evidence was that Dakin was identified by O'Brien as a potential source of the acid needed “to cook speed”.  In her presence, O'Brien negotiated an arrangement with Dakin “to get the acid from Dakin’s work”.  Another Joy employee, referred to as “Goofy”, would be used to order the acid.  According to Debra Dangerfield, O'Brien would pick up consignments of 20 litres of the acid at a time.  It was in brown coloured bottles with four bottles packaged in a cardboard box.  She was present on at least three occasions when O'Brien picked up a consignment from Dakin’s residence in Rockhampton.[16]  It is sufficient to note at this point that both Debra Dangerfield and her son gave further evidence which, on the case for the State of Queensland, associated the appellant with some, at least, of the acid supplied to Joy.

[15] The learned primary judge accepted evidence that hypophosphorous is a chemical precursor used in the manufacture of methylamphetamine.[17]  Relying on the evidence of the Dangerfields, he found that 140 litres of the acid which had been supplied to Joy had come into the possession of O'Brien and the appellant.[18]  He further found that this acid was, in fact, used by the two of them to produce methylamphetamine.[19]

[16] Expert evidence with respect to the production of methylamphetamine was adduced by the State of Queensland from Mr P J Vallely, a forensic chemist.[20]  Drawing on that evidence, his Honour adopted, for the purpose of calculating the market value of the proceeds, a production tonnage of 200 kilograms.[21]  Relying on evidence of market value of methylamphetamine per pound between 1997 and 2003, he found the market value of the 200 kilograms at about the time of its production, to have been $17,636,800.[22]

[17] Allowing for the depreciation in the value of money over time, his Honour added to that amount, an amount of $10,465,677.12 in order to derive a present value of the joint proceeds of O'Brien’s and the appellant’s serious crime related activity, namely, $28,102,477.12.[23]  That amount was apportioned half‑each to them on the footing that they were co-principals in the joint criminal enterprise.[24]  It is reflected in the proceeds assessment orders that were made. 

The grounds of appeal

[18] The grounds of appeal as set out in the Notice of Appeal filed by the appellant are:-

“(a)The Learned Trial Judge erred in admitting against the Appellant the acts and statements of the First Respondent.

(b)The finding of the Learned Trial Judge that the evidence of Corey Dangerfield and Debra Dangerfield was not fabricated or otherwise contrived is against the weight of the evidence.

(c)The Learned Trial Judge's valuation of crime derived proceeds was(sic) involved inexact proofs and indirect references.”[25]

[19] The Outline of Argument document prepared by the appellant is principally concerned with Ground (b).  The Reply prepared by his counsel, on the other hand, contains submissions on Grounds (a) and (c), but not Ground (b).  Counsel for the appellant maintained reliance on the document prepared by his client.[26]

[20] In speaking to these grounds, counsel for the appellant informed the Court that there was no issue now, as there had not been at first instance, that his client and O'Brien were involved in serious crime related activity.[27]  He identified the real issue in the appeal as concerning the profits derived from that activity.  In his words, the State of Queensland had “hung its hat on the hypophosphorous acid.”[28]

[21] In the Reply, counsel contended that whilst it was open on the evidence to conclude that the “hypophosphorous acid was used and/or controlled by” O'Brien, it was not open on the evidence for the learned primary judge to be satisfied that all or any of that acid was used by O'Brien in a common purpose he had with the appellant.[29]  In oral submissions, counsel elaborated upon this contention as follows:

“… there is a limited, or at least weak or low, direct link between my client and the acid.  It then goes, though, to the link between my client and Mr O'Brien because, clearly, Mr O'Brien is linked to the acid, in that he was the one who arranged for it to be sourced … So I accept there was a link between Mr O'Brien and the appellant or a combination, if I can use those words, in crime related activity, given, at the very least, the jury’s verdict and the resulting certificate of conviction…”[30]

[22] Counsel then identified, as the appellant’s “primary complaint”, that the reasons of the learned primary judge did not reveal the extent of the link between his client and O'Brien.  He conceded that there was evidence, in the form of a finding of fact made by Atkinson J in sentencing the appellant, that he and O'Brien had been jointly involved in a single production of four kilograms of methylamphetamine.[31]  However, he submitted, there was no, or insufficient, evidence to ground a finding that the whole of the 140 litres of hypophosphorous acid was used by them jointly for a similar purpose.[32]  In particular, it was submitted that the evidence of the Dangerfields was so unreliable that it should have been wholly rejected and that, even if accepted, it was so lacking in particularity as not to justify the finding that was made.

[23] Properly understood, Ground (a) is an appeal against the admission by the learned primary judge as against the appellant, of evidence of acts and statements of O'Brien.  That evidence was, to a large extent, given by the Dangerfields.  For this reason, it is convenient to consider Ground (b) first.

Ground (b)

[24] This ground of appeal impliedly contends that the evidence at first instance required a finding that the evidence of each of the Dangerfields was fabricated or contrived.  That is to say, their evidence should have been rejected in its totality on that account.  In his written submissions, the appellant maintains that the evidence of each “was fabricated or otherwise contrived as demonstrated by inconsistencies throughout the various proceedings”.[33]  The proceedings instanced by the appellant are his committal, his criminal trial and the proceeding at first instance here.

[25] A submission had been made to the learned primary judge that he should reject the Dangerfields’ evidence as fabricated or contrived.  His Honour rejected the submission.  He was influenced to that conclusion by the following considerations:

“[33]The second respondent claims that Corey Dangerfield has made inconsistent statements regarding the number of ‘cooks’ he has observed, and the chronology and circumstances relating to certain money drops to the first respondent on behalf of the second respondent.  Corey Dangerfield has also indicated that the first cook he observed had taken place at the Ilbilbie Shed in 1999, but in his most recent affidavit indicated that it occurred at the Notch Point Property in 1998.  The second respondent also asserts that the evidence of Corey Dangerfield is inconsistent in respect of the recovery of a trailer, which in one statement occurred prior to his acquisition of a utility vehicle, and in another afterwards.  There was also some uncertainty surrounding the location from which the trailer was removed, and the date at which the utility vehicle was purchased.

[34]The second respondent further claims that the evidence of Debra Dangerfield should not be accepted due to certain inconsistencies.  The second respondent claims that Debra Dangerfield’s evidence regarding the first ‘suspicious activity’ in late 1998, which involved the first respondent removing a substantial quantity of monies from the grill of his Fairlane vehicle, is inconsistent with Corey Dangerfield’s evidence, which places that event as having occurred in 1997.  The second respondent also asserts that Debra Dangerfield embellished certain testimony, including by making reference to a ‘sausage of drugs’ and the transportation of ‘speed’ from James Dean to the second respondent.

[35]In respect of the hypophosphorous acid, the second respondent notes that his involvement was not mentioned in the 4 December 2002 and 10 August 2003 statements.  Furthermore, in 15 March 2004 Debra Dangerfield stated that the acid was packaged in a cardboard box, rather than the distinctive Styrofoam box which was depicted in an annexure to Exhibit 10.  Debra Dangerfield had stated on 15 March 2004 that she was ‘pretty sure’ the second respondent had retrieved some hypophosphorous acid from her brother’s home, on 2 March 2009 that the second respondent had collected acid from his sister’s home, and on 17 February 2014 again that it had been collected from her brother’s home.

[36]I do not accept that the evidence of Corey or Debra Dangerfield has been fabricated or otherwise contrived.  Both were exposed to considerable personal risk by providing evidence to the Crown of the offending behaviour of the first and second respondents.  The inconsistencies in their evidence primarily relate to the chronology, sequence and location of certain events, most of which are peripheral to the issuing of a PAO.  This is explicable by the significant effluxion of time between each statement, and the ordinary development and deterioration of human recollection.  In respect of Corey Dangerfield, I would also note that he was relatively young at the time of the relevant circumstances.

[37]Corey Dangerfield has proven remarkably consistent in respect of the existence of a sophisticated joint criminal enterprise between the first and second respondent, and the substantial extent of the second respondent’s involvement.  Corey Dangerfield has also fairly consistently placed the first ‘cook’ as occurring in 1998 or 1999.  Debra Dangerfield consistently gave evidence of the manufacturing and trafficking activities of both the first and second respondent.  Although Debra Dangerfield was somewhat unclear regarding from whom the hypophosphorous acid was collected, but was certain that second respondent had collected it on at least one occasion.  Debra Dangerfield also gave evidence that bottles of a similar kind to that which she had previously observed containing the hypophosphorous acid had been used in the manufacturing of methylamphetamine by the first and second respondent together.

[38]Although the particulars of the evidence of Corey and Debra Dangerfield were, in some respects, mutually inconsistent, this generally only related to the chronology and sequence of events.  Both witnesses testified to the existence of a joint criminal enterprise which involved the production and distribution of methylamphetamine, and that the second respondent was substantially invested in the enterprise.  Both witnesses referred to certain key events and participants, such as the removal of monies from the grill of a vehicle, the production of methylamphetamine at the Notch Point property, the Ilbilbie property, and Grunter’s property, and the involvement of Glen Dakin.  As I find that the witnesses had not conspired to produce a false or fraudulent account, this evidence is mutually reinforcing.”[34]

[26] This ground of appeal is not directed to any particular fact or finding made by the learned primary judge.  Its focus is upon the finding as to the credibility of Debra Dangerfield and her son.  Further, in particularising this ground, the appellant has referred to matters that were relied on before the learned primary judge.  Only some of them concern acts or statements by O'Brien.  Overall, the cogency of the appellant’s submissions are impaired by a tendency to set out extracts from transcripts or affidavits sometimes without an explanation of why it is that the appellant contends that there is inconsistency within the extracted matter, and usually without any explanation of why it is said that the inconsistencies bespeak fabrication or contrivance.

[27] The appellant has assumed a heavy burden in relying upon this ground.  The findings as to credibility were made by the learned primary judge after he had had the advantage of observing each witness testify for a lengthy period, well over a day.  Due acknowledgement must be given to that.

[28] The ambit of this ground in seeking to target the totality of each witness’ evidence presents a formidable challenge for the appellant.  It is a challenge which his submissions fail to address.  As well, the appellant has not identified any specific factual finding, let alone a series of factual findings, made in reliance upon the evidence of either of the Dangerfields which he seeks to demonstrate is contrary to uncontrovertible fact or uncontested testimony in terms of the test affirmed by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy.[35]  Nor has he submitted that any particular finding of fact is glaringly improbable or contrary to compelling inferences.[36]  In these circumstances, this ground of appeal cannot succeed.

[29] I would add that the evidence of the Dangerfields was consistent with the appellant’s convictions.  They provide a powerful reason for rejecting his submission of fabrication of evidence.[37]  The example of consistency offered by the respondent in this respect is telling.  Count 2 of the indictment against the appellant concerned the production of methylamphetamine at Notch Point, Ilbilbie.[38]  During the criminal trial, Debra Dangerfield testified that the appellant, O'Brien and Bruce Cummings were present for a “cook” that resulted in the production of about five kilograms of methylamphetamine.[39]  The appellant was convicted on Count 2.  At first instance here, Ms Dangerfield again gave evidence of a “cook” at the Notch Point property, and she did not resile from that evidence in cross-examination.  In those circumstances, there was every reason to accept her evidence about the appellant’s involvement in producing methylamphetamine with O'Brien at Notch Point.

[30] Furthermore, in so far as the appellant has identified inconsistencies in the Dangerfields’ evidence, they are, as his Honour found, explicable.  The evidence related to matters that had occurred over 14 years earlier.  Corey Dangerfield was about 17 years of age when they occurred.  It is unsurprising that, given the passage of time, the details of some events recounted by each of the Dangerfields have changed over the years.

[31] Beyond that, those inconsistencies are not such as to leave fabrication as the only plausible explanation for them.  In this context, the example offered by the respondent is also telling.  As long ago as 15 March 2004, Debra Dangerfield mentioned in a statement to the Australian Crime Commission that she was sure that the appellant had picked up “acid” from her brother’s house.  She later testified about those matters at the appellant’s criminal trial,[40] and at first instance here.[41]  The fact that she had not mentioned the appellant picking up “acid” at the committal hardly compels an inference that she fabricated the incident.  A similar observation may be made about Corey Dangerfield’s accounts of seeing “cooks” involving the appellant at Notch Point and of carrying large amounts of cash for the appellant on several occasions.  While they have differed in details over time, they have a basic consistency.[42]

Ground (a)

[32] Expressed as it is in the Notice of Appeal, this ground appears to challenge, as a matter of legal principle, the admission of any evidence of acts or statements by O'Brien against the appellant.  In a pre-trial hearing, the learned primary judge had heard argument on an objection taken by the appellant to the admission, as against him for any purpose, of evidence of acts done or statements made by O'Brien outside his presence.[43]

[33] The appellant objected to evidence claimed to be of that character in some 122 paragraphs of Debra Dangerfield’s 163 paragraph affidavit sworn on 17 February 2014[44] and in some 53 paragraphs of Corey Dangerfield’s 141 paragraph affidavit also sworn on that date.[45]  With the concurrence of the parties and consistently with the decision of the High Court in Ahern v The Queen[46] to which his Honour was referred, his Honour reserved ruling on the objection until the evidence in the trial had been led.

[34] The High Court in Ahern[47] affirmed the rule that had been established in Tripodi v The Queen[48] that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others.  As had been observed in Tripodi,[49] the combination implies an authority in each to act or speak on behalf of the others.  Later, the High Court in Ahern endorsed the test for admission of evidence adopted in Tripodi as appropriate.  Their Honours continued:

“ … Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant. …”[50]

[35] The learned primary judge referred to these observations.[51]  He concluded that the admissible evidence established that, on the balance of probabilities, the appellant and O'Brien were involved in “a sophisticated joint criminal enterprise involving the trafficking of methylamphetamine on a commercial scale”.[52]  This conclusion is unremarkable given the concession by the appellant’s counsel at trial that if the Dangerfields’ evidence was accepted, or even not rejected, then “there clearly was, on a level, a common purpose between [the appellant] and Mr O'Brien to produce speed”.[53]  As I have noted, a similar concession is made on appeal.

[36] As presented in argument by counsel for the appellant, this ground of appeal is not one based on misapprehension of legal principle on the part of the learned primary judge.  It is, in effect, a complaint of a failure to make a finding as to the extent of the joint enterprise in which the appellant and O'Brien participated.  Counsel submitted in argument that for much of O'Brien’s conduct the subject of evidence, his Honour could not have been satisfied that it was undertaken in furtherance of a combination between him and the appellant.  Counsel ventured that the evidence did not exclude that, for that conduct, O'Brien “was just engaged in his own folly”.  Other individuals whom O'Brien dealt with might have been quite unconnected with the appellant.[54]

[37] The theme of this submission was renewed in a more focused challenge directed at the 140 litres of hypophosphorous acid.  It was submitted that the evidence did not permit a finding that that particular quantity of acid was used in the course of a joint enterprise to which the appellant was a party, in order to produce methylamphetamine.  In this respect, the submissions on this ground of appeal overlap with Ground (c).

[38] In the Reply, the appellant has instanced a number of events of which Debra Dangerfield gave evidence in her affidavit.  They include conduct on the part of O'Brien in removing some $120,000 hidden near the windscreen wipers on his car; in associating with a number of persons some of whom were distant from the Ilbilbie area; in producing methylamphetamine at a location in the Dalby area; and in selling speed to a number of individuals.  It is submitted that there is no evidence of the involvement of the appellant in any of that conduct.[55]  A similar exercise is undertaken with respect to the conduct of O'Brien to which Corey Dangerfield deposed.[56]

[39] Those instances had been advanced by the appellant at first instance as confining the finding that could be made as to the appellant’s participation in any joint criminal enterprise based on the Dangerfields’ evidence.  The available finding, it was submitted, was that the joint enterprise consisted of no more than activity between 10 July and 21 October 1999; the two productions of which the appellant was convicted; a production at “Grunters”; and several other unparticularised productions.[57]

[40] The learned primary judge rejected that submission.  He found a much more substantial joint enterprise in terms of scale of production, diversity of location, and duration.  His Honour made the following finding at paragraph 40 of his reasons:

“ … The evidence of Debra Dangerfield indicated that the joint criminal enterprise of the first and second respondent continued until at least 2001, when Debra Dangerfield drove the first respondent to various locations, sometimes with the involvement of the second respondent, to distribute methylamphetamine and engage in other drug-related activities.  Similarly, in 2002 Corey Dangerfield remained engaged by the first respondent to conceal methylamphetamine and money.  This Court may infer, on the balance of probabilities, that the joint criminal enterprise within which the second respondent had participated continued until at least 2002.”[58]

[41] The appellant’s complaint is ill-founded.  It overlooks not only that these findings were made, but also that there was evidence which supported them.  That included evidence of “cooks” in which the appellant participated at the two properties in the Ilbilbie area; the four cash drops undertaken by Corey Dangerfield but orchestrated by the appellant; and the regular transporting of consignments of speed by Debra Dangerfield and O'Brien to the appellant.[59]  It was evidence which, when given at the appellant’s criminal trial, informed the following remarks at his sentence:

“This was an extraordinarily large methylamphetamine manufacturing and trafficking business.  The distribution end was mostly handled by Mr O'Brien with his many associates in the Rebels motor cycle club.  You were based in Ilbilbie where huge amounts of methylamphetamine were manufactured, and as I said, you were the person who most profited from the business.  … [Y]ou were the brains of the operation.  You were the one who organised the accountant, you were the one who got the money, you were the one who spent it on the equipment for your opal mining business.  And you supplied cannabis to [Corey] Dangerfield to keep him involved which you knew that he was then on-supplying to other people.

As the evidence showed, on one occasion on which you were found guilty of the production of methylamphetamine, between four and five kilograms were produced.  I accept that it was four kilograms for the purpose of the sentence.”[60]

[42] For these reasons, this ground of appeal cannot succeed.

Ground (c)

[43] There are two aspects to this ground of appeal.  One of them, to which I have referred, concerns adequacy of proof that the 140 litres was used in pursuit of the joint criminal enterprise.  The other concerns the quantification of the proceeds derived from use of that quantity of hypophosphoric acid in the production of methylamphetamine.

[44] Adequacy of proof:  The learned primary judge found that, on the balance of probabilities, the 140 litres entered into O'Brien’s and the appellant’s possession.[61]  This finding is challenged insofar as it relates to the appellant.  It is conceded that there was an abundance of evidence, to which I have referred, which associated O'Brien with the hypophosphorous acid.

[45] The appellant’s challenge faces the immediate difficulty that, in light of the findings as to the comprehensive scale of the joint criminal enterprise that were made, it was open to his Honour to infer that raw materials for drug production acquired by one of the two partners in it, were applied for use in production by the joint enterprise.

[46] The difficulty is compounded here by the existence of evidence which did link the appellant to some, at least, of this acid.  Debra Dangerfield gave evidence of an occasion when the appellant turned up at her brother’s residence and collected a cardboard box containing four brown acid bottles.[62]  Corey Dangerfield gave evidence of the appellant retrieving from his utility two large brown glass bottles with “poison” stamped in black on the side;[63] of observing large brown glass bottles in the appellant’s shed at Ilbilbie;[64] and of the appellant and O'Brien mixing liquid from large brown poison bottles into frypans for methylamphetamine production.[65]

[47] The Dangerfields’ evidence was not contradicted by other independent evidence.  Once accepted, in my view, it was sufficient to justify a finding that, on the balance of probabilities, all of the 140 litres of hypophosphorous acid was used in the production of methylamphetamine in the course of the appellant’s and O'Brien’s joint criminal enterprise.

[48] Quantification:  It will be recalled that the market value of methylamphetamine produced by the joint criminal enterprise was calculated on the basis that the 140 litres of hypophosphorous acid was used to produce 200 kilograms of methylamphetamine.  The learned primary judge had made a finding to that effect.  The finding is to be found in paragraph 65 of the reasons as follows:

“The State relies on the expert evidence of Mr Vallely to establish that 140 litres of hypophosphorous acid may be used to produce between 100 and 310 kilograms of methylamphetamine.  As Mr Vallely’s evidence in this respect is materially unchallenged by the respondents, it shall be accepted.  Accordingly, this court conservatively finds that the 140 litres of hypophosphorous acid was used to produce 200 kilograms of methylamphetamine.  This court also infers that, because of the sophisticated operation of the respondents, their demonstrated capacity to supply large quantities of methylamphetamine, and the absence of evidence to the contrary, the full 200 kilograms of methylamphetamine was sold at market value.”[66]

[49] It is true that Mr Vallely testified that assuming the hypophosphorous acid was the commonly available 50 per cent weight/weight grade, then the maximum amount of methylamphetamine that could be produced from it would have been about 310 kilograms.[67]  He described it as “the maximum theoretical possible amount able to be produced”.[68]  Mr Vallely’s testimony continued:

“To provide an estimate of the actual weight of methylamphetamine that could be recovered from a given weight of hypophosphorous acid in any given instance, it would be necessary to know the actual weights of both the pseudoephedrine and iodine used in conjunction with the hypophosphorous acid as these would directly influence the outcome.

In examining documentation sourced from clandestine laboratory investigations I have noted that commonly the proportions in which illicit drug manufacturers utilise pseudoephedrine, hypophosphorous acid and iodine are in the ratio of approximately 1:1:1.  If it is assumed then that 140 litres of hypophosphorous acid were to be used to manufacture methylamphetamine using these proportions, then approximately 140 kilograms of pseudoephedrine hydrochloride and approximately 140 kilograms of iodine would be consumed.  Under these circumstances it is reasonable to assume the quantity of methylamphetamine that would be produced would be of the order of 100 kilograms.”[69]

[50] The finding of 200 kilograms was one for which the State of Queensland had submitted at first instance.[70]  The submission was not supported by any reasoning.  Its pragmatic appeal may have been thought to be that it was about midway between 310 and 100 kilograms.  His Honour offered no reasons for adopting the submission.

[51] In my view, the finding was not one that was open to the learned primary judge.  He was concerned to find the actual weight of methylamphetamine that could be produced from the 140 litres; not some theoretical maximum.  The only evidence of the actual weight likely to have been produced from it based on common practice was 100 kilograms of methylamphetamine.  The finding that was open, and ought, to have been made was one that was consistent with that evidence.  On this aspect, this ground of appeal must succeed.

Disposition

[52] The appellant’s partial success on Ground (c) has the consequence that the market value of the methylamphetamine produced needs to be recalculated to $8,818,400.  Adjusted for the depreciation in the value of money over time, the value at the date of judgment of that amount is $14,051,238.56 which, apportioned equally between the appellant and O'Brien, yields an amount of $7,025,619.28.  The appeal should therefore be allowed; the substantive order should be set aside and substituted with an order that incorporates that amount; and the costs order made below should be confirmed.

[53] In view of the outcome of the appeal and the fact that the appellant has been represented pro bono, I consider that there should be no order as to costs of the appeal.

Orders

[54] I would propose the following orders:

1.Appeal allowed.

2.Set aside Order 1 made on 18 May 2015 and substitute therefor, the following order:

“Pursuant to s 78 of the Criminal Proceeds Confiscation Act 2002 (Qld), the first respondent and second respondent must each pay to the State of Queensland the sum of $7,025,619.28, being the apportioned value of the proceeds derived from illegal activity.”

3.Otherwise confirm the orders made on that date.

4.No order as to the costs of the appeal.

[55] MORRISON JA:  I have read the reasons of Gotterson JA and agree with those reasons and the orders his Honour proposes.