R v Scott McCONALOGUE [2010] NSWCCA 56

New South Wales Court of Criminal Appeal

CITATION: R v Scott McCONALOGUE [2010] NSWCCA 56

HEARING DATE(S): 17 December 2009

JUDGMENT DATE: 7 April 2010

JUDGMENT OF: Tobias JA at 1; Hidden J at 2; Howie J at 29

DECISION: Appeal allowed, evidentiary rulings set aside. See [29].

CATCHWORDS: CRIMINAL LAW - appeal by Crown against evidentiary rulings - knowingly concerned in manufacture of amphetamine - Crown case circumstantial - rejection of evidence bearing on relationship between respondent and principal offender - whether Crown case substantially weakened

Criminal Appeal Act 1912 LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 Crimes Act 1914 (C'th) Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED : Qualtieri v R [2006] NSWCCA 95, 171 A Crim R 463 R v Shamouil [2006] NSWCCA 112, 66 NSWLR 228

PARTIES: REGINA (Crown) Scott McCONALOGUE (Respondent)

FILE NUMBER(S): CCA 2007/152856

COUNSEL: P Neil SC & T Postma (CDPP) (Crown) L Wells SC & N Marshall (Respondent)

SOLICITORS: Commonwealth Director of Public Prosecutions - Applicant S O'Connor - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/11/0413

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 2 November 2009

IN THE COURT OF CRIMINAL APPEAL 2007/15286

TOBIAS JA HIDDEN J HOWIE J

Wednesday 7 April 2010 R v Scott McCONALOGUE Judgment 1 TOBIAS JA: I agree with Hidden J. 2 HIDDEN J: The respondent, Scott McConalogue, awaits trial in the District Court on a charge of knowingly taking part in the manufacture or production of a large commercial quantity of amphetamine. At a pre-trial hearing, after receiving evidence on the voir dire, a judge of that Court made a number of evidentiary rulings. By two of those rulings his Honour rejected evidence which was to be led in the prosecution case. The Crown has appealed against those rulings, pursuant to s 5F of the Criminal Appeal Act 1912. 3 The offence is alleged to have been committed between late March and early April 2006 at a remote property in north-eastern New South Wales. The property was owned by Kane Holland. There is abundant evidence that Holland and three other men were involved in manufacturing amphetamine there. Indeed, the four of them pleaded guilty to an offence under Commonwealth legislation of conspiring to manufacture the drug. The respondent is charged with a State offence: s 24(2) of the Drug Misuse and Trafficking Act 1985. The matter had been the subject of a joint Federal and State police investigation. 4 It is the Crown case that the respondent was a party to a joint enterprise to manufacture amphetamine, his role being to be present at the property and to secure it during the production process. The case against him is entirely circumstantial. The circumstances relied on, including the matters the subject of the appeal, are as follows: (a) Federal police executed a search warrant at the property in the late afternoon of 6 April 2006. In a large shed they found a metal drying tray containing several kilograms of amphetamine, together with a quantity of drug paraphernalia. Beneath the shed was a concrete bunker which was, in effect, a laboratory for the manufacture of amphetamine. Production of the drug was in progress in a modified beer keg contained in an electric cement mixer. In a smaller shed police found quantities of drug related chemicals, and empty containers which had held chemicals of that kind were lying in the open in the vicinity of the sheds. (b) On three occasions between 29 and 31 March 2006, police who had the property under surveillance observed the respondent drive into or out of it. On two of those occasions he stopped at the mail box, which was located at the entrance to the driveway, and on one occasion he removed mail from it. (c) There was a house on the property. During the search police found in the house various items connected to the respondent, including a series of documents in his name, some of them addressed to him at the property. Among those was a receipt, bearing a date in July 2005, for rent paid by him to Holland in respect of the house. Also found in the smaller shed was a photo album which contained, among other things, photos of the respondent in the house. (d) The respondent was the only person present at the property at the time police arrived to conduct the search.