Supreme Court New South Wales Medium Neutral Citation: R (Commonwealth) v Mark William Standen [2011] NSWSC 1046 Hearing dates: 9 June 2011 Decision date: 09 June 2011 Jurisdiction: Common Law - Criminal Before: James J Decision: Application for a directed verdict is refused Legislation Cited: Commonwealth Criminal Code - ss 11.5, 307.11, 307.14 Cases Cited: R v Campbell (2008) NSWCCA 214; (2008) 73 NSWLR 272 Doney v The Queen (1990) 171 CLR 207 Wilson v Chambers & Co Pty Limited (1926) 38 CLR 131 Category: Interlocutory applications Parties: Regina, Mark William Standen Representation: T Game SC, H Dhanji SC, S Buchen (Crown) M Ierace SC, G Farmer (Accused) Commonwealth DPP (Crown) Gordon Elliot, Elliot Lawyers (Accused) File Number(s): 2009/8922 Judgment (On application for a verdict by direction) 1HIS HONOUR: After the Crown case closed counsel for the accused made an application for a directed verdict on count 1 in the indictment. The application was confined to count 1 and did not extend to the other counts in the indictment. The application was opposed by the Crown. Count 1 in the indictment is based on section 11.5 and section 307.11 of the Commonwealth Criminal Code . 2At the outset of his submissions in support of the application counsel for the accused said that he accepted that the Crown did not have to prove that the accused had intended to import pseudoephedrine and that it would be sufficient for the Crown to prove that the accused had intended to import a border controlled precursor. I expressed some doubts about this concession. However, no definite submission was subsequently made by counsel for the accused that the Crown would have to prove that the accused had intended to import pseudoephedrine and not merely some border controlled precursor. 3A principal submission which was made by counsel for the accused was that there was no evidence capable of persuading the jury beyond reasonable doubt that the accused intended to import a border controlled precursor or, if the tentative view I had expressed was adopted, pseudoephedrine, while any conspiracy was on foot. 4It would appear to me to have been accepted by counsel for the accused that part of the conversation between the accused and Mr Jalalaty on 21 May 2008, which was recorded by a listening device, would be capable of amounting to such evidence, but it was submitted that, applying the decision of the Court of Criminal Appeal in R v Campbell (2008) NSWCCA 214; (2008) 73 NSWLR 272, any importation had been completed before 21 May 2008. After some further submissions by both counsel based upon Campbell , counsel for the accused indicated that he would not further press the submission. However, counsel subsequently revived the submission and I will return to it a little later in this judgment. 5The submission which was most strongly pressed by counsel for the accused was a submission based on section 307.11(1)(b)(ii) of the Code. Paragraph (b) of section 307.11(1) provides that it is an element of an offence under section 307.11 that: "either or both of the following apply: (i) the person (that is the alleged offender) intends to use any of the substance to manufacture a controlled drug; (ii) the person believes that another person intends to use any of the substance to manufacture a controlled drug". 6In the indictment the Crown alleged both sub-paragraphs of paragraph (b). However, in submissions on this application the Crown relied only on sub-paragraph (ii). In its submissions the Crown stated the element of the offence, when section 11.5 of the Code was combined with section 307.11(1)(b)(ii) as being that: "The accused and at least one other party to the agreement believed the substance would be used to manufacture a controlled drug by some other person or persons". 7It was submitted by counsel for the accused that this statement by the Crown of what was required to be proved departed from the actual terms of sub-paragraph (b)(ii) and was not a correct statement of what the Crown has to prove under sub-paragraph (b)(ii). 8I accept counsel for the accused's submission about the proper interpretation of sub-paragraph (b)(ii). Under sub-paragraph (b)(ii), as read with section 11.5 of the Code, the Crown has to prove that the accused and at least one other party to the agreement believed that another person intended to use at least some part of the substance to manufacture a controlled drug. However, I do not consider that it is necessary for the Crown to precisely identify who the other person was. 9It was further submitted on behalf of the accused that there was no evidence that the accused and at least one other party to the agreement believed that another person intended to use a part of any substance which might be imported to manufacture a controlled drug. 10I note that on the application it was common ground between the parties that section 307.14 of the Code, which contains certain presumptions which assist the Crown in proving that an offence has been committed, have no application in the present case. 11In adjudicating on these submissions, as on other submissions made by counsel for the accused, it is necessary to apply the principles governing the determination of applications for directed verdicts in criminal trials. These principles were authoritatively stated by the High Court in Doney v The Queen (1990) 171 CLR 207 at 214-215. 12In my opinion, as was submitted by the Crown, there is evidence capable of establishing sub-paragraph (ii) of paragraph (b) of section 307.11(1). This evidence includes part of a conversation between the accused and Mr Jalalaty on 21 May 2008 recorded by a listening device. This passage is as follows: BJ: but the thing it's not a finished product twenty (indistinct) MS: oh BJ: yeah twenty three MS: ah no so these are like chemicals and things like um crystal BJ: yeah looks like rice MS: okay BJ: the product itself won't do anything to anyone like you opened it won't do anything when you mix it with something else then it becomes something else MS: they're making something whatever we don't know BJ: yeah they've, they've made it my warehouse the guy was there but he finished before they make it we get paid and I will make sure that I remove the bags transfer it into a plain brown box tape them up and hand them over to my Portuguese mate and I get them back and I burn them so there is no trace of that bag wants me to said I said look I'd rather do that cause they know I'm in control MS: mm then his bald mate must be close 13In this passage the accused referred to 'they' as making something and Mr Jalalaty said "they've made it at my warehouse" and Mr Jalalaty referred to 'the guy' being there and to his 'Portuguese mate', who had previously been mentioned in conversations. 14The evidence also includes part of the conversation between the accused and Mr Jalalaty on 25 October 2007 recorded by a listening device, as follows: BJ: so that means you know and when it when it comes I'm not even gonna my boys will be unloading it as per normal MS: yep BJ: stacking it as per normal palletising it as per normal and how they pick it up is not my problem MS: yep ok (Indistinct) 15The statement by Mr Jalalaty 'how they pick it up' is capable of referring to the persons who intend to use the border controlled precursor. The emphasis by Mr Jalalaty that the goods are to be unloaded and stacked 'as per normal' is capable of implying that the goods in question were not normal products. 16The evidence also includes part of the conversation between the accused and Mr Jalalaty on 23 November 2007 recorded by a listening device, as follows: MS: and then when you get it BJ: yep MS: who comes to you BJ: no-one I pick it up MS: No the next one BJ: oh the baldy guy my Portuguese mate MS: only him BJ: only him he comes and picks up those thirty bags take three back to him to empty bags and I destroy the bags so the bags aren't out there 17In this passage Mr Jalalaty referred to 'my Portuguese mate', 'the baldy guy', picking up the bags. 18There is also evidence, including evidence from Mr Stevenson, that drums of acetone were for a time stored at Mr Jalalaty's premises. 19In an email from Mr Jalalaty to the accused on 24 September 2006, Mr Jalalaty asked, "What does he want me to do with the drums? It is no problem to store them and keep them until they need them". It would be open to the jury to infer that the person referred to as 'he' was Mr Kinch and that the persons referred to as "they" were persons intending to use the acetone. 20Mr Heagney, a forensic scientist, gave evidence that a use of acetone is as a solvent added to methylamphetamine in an oil form (manufactured from pseudoephedrine). Accordingly, the evidence about acetone is some evidence which might be capable of establishing that the accused and Mr Jalalaty believed that some persons ('they') intended to use some of the border controlled precursor to manufacture a controlled drug. 21Counsel for the accused made a number of submissions about these items of evidence. It was submitted that the conversation of 21 May 2008 was the only direct evidence as to the accused's belief, whereas all of the other items of evidence relied on by the Crown were merely circumstantial evidence. It was submitted in relation to the conversation on 25 October 2007 that Mr Jalalaty might have been talking about the unloading of legitimate goods. It was submitted that the evidence about the acetone was temporally remote from the arrival of the container in April 2008 and that there was evidence that Mr Jalalaty had wanted to get rid of, and had actually got rid of, the acetone. It was further submitted that, while there had been opportunities for communication between Mr Kinch and the accused, and indeed much evidence of the terms of actual communications between them, there was no evidence of any actual communication by Mr Kinch to the accused such as would support the Crown's case. 22There may be some weight in some or all of these submissions made by counsel for the accused. However, in my opinion they are submissions to be considered by the jury, rather than submissions to be ruled on by me in hearing an application for a directed verdict. It is well settled that, on an application for a directed verdict, the Crown case is to be taken at its highest and all inferences capable of being drawn in favour of the Crown should be drawn (see Doney ). 23I return to the submission that there was no evidence capable of persuading a jury beyond reasonable doubt that the accused intended to import pseudoephedrine or any border controlled precursor, while any conspiracy was on foot, any importation having been completed by 21 May 2008. As I remarked earlier in this judgment, this submission was revived in a latter part of counsel for the accused's submissions. In support of this submission counsel for the accused referred to paragraphs 128 and 74 of the Chief Justice's judgment in Campbell (at pages 294 and 287 respectively). 24In paragraph 74 the Chief Justice quoted an extract from the judgment of Isaacs J in Wilson v Chambers & Co Pty Limited (1926) 38 CLR 131 at 139. Counsel for the accused submitted that, if this part of Isaacs J's judgment in Wilson v Chambers , was applied, then the importation in the present case was concluded before the conversation between the accused and Mr Jalalaty on 21 May 2008. 25However, in paragraph 78 of his judgment in Campbell the Chief Justice distinguished the facts in Wilson v Chambers from the facts in Campbell . In paragraph 13 of his judgment (at page 276) the Chief Justice had set out what he described as the "relevant chronology" in Campbell . This chronology included that the ship with the container in question arrived in Australia on 11 June 2006. The container was subsequently cleared through customs and subjected to Australian Quarantine & Inspection Service inspection. On 17 June 2006 the container was picked up by a transport company on instructions from the appellant's customs agent. On the same day the container was delivered to the appellant's premises. 26In paragraph 128 of his judgment the Chief Justice said: In my opinion, the purpose of the Act requires the border controlled drugs and precursors "to arrive in Australia from abroad" and to be delivered at a point which, in the words of Isaacs J in Wilson v Chambers , would "result in the goods remaining in Australia". That occurred when the goods were picked up by the appellant's agent or, at the latest, when the container arrived at her premises and before it was unpacked. 27In the present case, as at 21 May 2008, although the container had arrived in Australia, it was being held subject to customs and quarantine clearance, the seal on the container had not been broken, there had not been any quarantine clearance, the original bill of lading was not held by the importer and the goods were not picked up and transported to Mr Jalalaty's premises until 28 May 2008. 28Accordingly, it would be well open to the jury to find that the importation had not been completed and any conspiracy to import was still on foot at the time of the conversation between the accused and Mr Jalalaty on 21 May 2008. 29Apart from the evidence of the conversation between the accused and Mr Jalalaty on 21 May 2008, there is other evidence capable of establishing that the accused intended that pseudoephedrine be imported. In the conversation between the accused and Mr Jalalaty on 15 September 2007, which was recorded by a listening device, Mr Jalalaty asked and the accused said: BJ: what do they what do they normally pay if they brought in (indistinct) what's that worth (indistinct) MS: depends what they buy and what they sell it for they'd probably make umm um they'd probably make at least umm they probably make at least umm allowing to pay for all costs they'd probably make from a hundred to a hundred and twenty a kilo 30The expressions "a hundred" and "a hundred and twenty" are clearly capable of being interpreted as meaning $100,000 and $120,000. This evidence would be consistent with evidence given by the expert police witness Mr Cadden that around May 2008 the wholesale black market price of pseudoephedrine was $40,000 a kilogram and the wholesale black market price of methamphetamine was $160,000 to $180,000 a kilogram. 31Submissions were made by counsel for the accused that the figures of which evidence was given by Mr Cadden could be consistent with other illicit drugs, that the conversation on 15 September 2007 was several months before the conversation of 21 May 2008 and that parts of the conversation of 21 May 2008 could be regarded as inconsistent with the interpretation sought to be put by the Crown on the conversation of 15 September 2007. However, these are submissions for consideration by the jury, rather than submissions to be ruled on by me as a judge hearing an application for a directed verdict. 32I consider that it could be inferred from evidence about the accused's telephone conversation with Mr Mercer on 26 May 2008 at 16.02 and evidence about the accused's conversation with Mr Jalalaty on 27 May 2008 at 10.28 that the accused was not concerned that Customs were aware of an importation of iodine and that he was not concerned because he knew, at the very least, that the substance being imported by the alleged conspirators was not iodine. 33In my opinion, it could also be inferred from evidence in the email sent by Mr Kinch to the accused on 9 May 2008 and the accused's conduct in relation to that email, that the accused knew that the drug which was to be imported was not in bath salts, was not from China and did not contain MDMA and that it could be further inferred that the accused knew those matters because he knew what the drug was, which was being imported. 34The evidence I have already referred to about acetone is also capable of assisting the Crown in establishing that the accused intended to import pseudoephedrine. 35Further matters capable of assisting the Crown are the accused's long experience as a law enforcement officer dealing with drug offences and, if the Crown can establish a conspiracy to import some drug, the unlikelihood of the accused participating in such a conspiracy, without knowledge of what was to be imported. 36I have decided that I should refuse the application for a directed verdict. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 September 2011