R v Craig MCGREGOR [2011] NSWDC 242

District Court New South Wales

Medium Neutral Citation: R v Craig MCGREGOR [2011] NSWDC 242 Decision date: 05 December 2011 Before: Cogswell SC DCJ Decision: Not guilty of conspiracy to manufacture methylamphetamine in an amount not less than a large commercial quantity. Pleaded guilty to conspiracy to manufacture a prohibited drug, methylamphetamine, in an amount not less than the indictable quantity. Catchwords: CRIMINAL LAW - Procedure - trial before judge without jury - Evidence - burden and standard of proof - no admissions or direct eye witness evidence - co-accused's account unreliable - accused's account not compromised during cross examination - no need to be satisfied as to truth of accused's account - accused's account gave rise to reasonable doubt. Legislation Cited: Drug Misuse and Trafficking Act 1985 Evidence Act 1995, s 165 Category: Principal judgment Parties: Regina (Crown) Craig McGREGOR (Accused) Representation: Counsel: M L Barr (Crown) J P Watts (Accused) File Number(s): DC 2009/45263

Judgment 1Craig McGregor was very interested in chemical reactions. He was also addicted to a range of prohibited drugs. His amateur chemical skills and his drug addiction were a dangerous combination. He has admitted agreeing to manufacture the prohibited drug methylamphetamine. He has been prosecuted for this agreement. 2The Director of Public Prosecutions has charged him with a conspiracy to manufacture methylamphetamine in an amount not less than a large commercial quantity. Alternatively, the DPP charges him with manufacturing the same drug in an amount not less than the indictable quantity for that drug. 3What is in issue between the DPP and Mr McGregor was how much methylamphetamine Mr McGregor agreed to manufacture. The DPP says that the conspiracy Craig McGregor was part of was to manufacture a large commercial quantity - or at least a commercial quantity - of methylamphetamine. Craig McGregor denies being part of any agreement to manufacture such quantities. He says that the only agreement he was part of was to manufacture a relatively small amount of methylamphetamine. 4Hence the issue for me to determine is whether the DPP has satisfied me beyond reasonable doubt that Craig McGregor was part of a conspiracy to manufacture either a large commercial quantity or a commercial quantity of methylamphetamine. 5On 21 April 2009 police raided Mr McGregor's unit in Naremburn. They found a large amount of chemicals and chemical equipment and evidence of some chemical reactions which were underway. The unit was an amateur laboratory. 6Mr M L Barr who appears as Crown Prosecutor has marshalled a strong case against Mr McGregor. Mr Barr points to the equipment and the chemicals found in the unit together with evidence from intercepted telephone calls and the fact that one of the co-conspirators was a drug supplier who was in a position to source what was needed. Mr Jason Watts who appears as counsel for Mr McGregor says that, on the other hand, there are explanations for all of this evidence and that the DPP cannot exclude those explanations which must leave me with a reasonable doubt. 7Both parties elected to have me try this case without a jury. 8The DPP's case is conveniently summarised in Mr Barr's comprehensive written submissions which are called "Summary of the Crown Closing Address" and which I marked MFI 13. I do not propose to refer to those in detail at all. It is sufficient to say that they present a powerful circumstantial case against Craig McGregor as a manufacturer of methylamphetamine in an amount not less than the commercial quantity, if not the large commercial quantity. 9This was a case which, once that evidence was collected, really had to be prosecuted on the charges which were laid against Mr McGregor. In a sense they cried out for an explanation. 10Mr Watts called his client Craig McGregor to give evidence in the trial. His evidence also I do not propose to refer to in any detail. He said that there were significantly three things which he was undertaking in his unit. First, he admitted that he was manufacturing a small amount of methylamphetamine. The second thing that he said he was doing was to attempt to manufacture another chemical solution which was not illegal but which he hoped would produce similar effects as prohibited drugs. The third thing which he said that he was doing was undertaking some tests on behalf of one of his co-conspirators, a man named Brett Staas, who was wanting him to undertake certain chemical tests on some material which would be used to manufacture methylamphetamine either one way or another way. 11This is, as I said, a circumstantial case against Mr McGregor. To some extent there is evidence of a more direct kind in the form of a statement from the other co-conspirator, Clarissa Burrow. That statement became exhibit Z. Ms Burrow was not called as a witness. She admitted to being a drug addict and to having next to no chemical knowledge. Her statement is the kind of evidence about which I would give a jury a warning that it may be unreliable under s165 of the Evidence Act 1995. 12Indeed, I regard Ms Burrow's statement as almost completely unreliable. The reasons for that are fivefold. First, it is unsworn or otherwise unverified. Secondly, it is untested. Thirdly, Ms Burrow admitted to having a drug addiction. Fourthly, she admitted to having next to no chemical knowledge but was making observations about some chemical transactions. Fifthly, she is an accomplice of Mr McGregor. To the extent that Ms Burrow's statement may contain any direct evidence against Mr McGregor, I put no weight on it. 13When Mr Watts called his client, Mr Barr very extensively and thoroughly cross-examined him. He cross-examined him about all of the equipment and chemicals which were found in his unit. He also cross-examined Mr McGregor about some of the intercepted telephone calls which were part of the evidence produced by the Director of Public Prosecutions. Most of the intercepted telephone calls did not involve Craig McGregor. Most of them did involve his two co-conspirators, Mr Staas and Ms Burrow. Other persons were also involved. There were occasions when Mr McGregor himself was party to a conversation. My understanding is that Mr McGregor's phone was not intercepted but that other telephones were. 14The intercepted telephone calls, insofar as they captured conversations from Mr McGregor, did not contain any direct admissions by him. There was no direct evidence in the prosecution case of any eyewitnesses who could say that Mr McGregor was involved in the manufacture of a large or commercial quantity of methylamphetamine. The case is, so far as I am concerned, almost exclusively a circumstantial case against Mr McGregor. 15When he was cross-examined by the Crown Prosecutor, Mr McGregor explained - in a way consistent with being innocent of the more serious charges that he faced - almost all of the propositions that were put to him by Mr Barr. To my observation he did not prevaricate or appear to avoid any questions. He did not give the impression of being compromised by any of the questions which he faced. 16Being a case which in effect, I regard as exclusively circumstantial, I need to take into account, indeed I must take into account, the kind of direction which I would give a jury who was charged with determining a case such as this. I must apply the principle that the inference or conclusion that Mr McGregor is guilty of manufacturing a large commercial or commercial quantity of methylamphetamine must be a conclusion reached by me beyond reasonable doubt, having taken into account not only the prosecution evidence but also the evidence given by Mr McGregor himself. The inference of his guilt must be the only inference or conclusion which I can draw. That follows from the necessity for the prosecution to satisfy me beyond reasonable doubt that Mr McGregor is guilty of the charges which he faced. I would inform a jury that, if at the end of their deliberations, there is more than one conclusion than that favourable to the prosecution, then the prosecution had not proved its case. In a case where an accused person gives evidence, I would direct a jury, and I apply myself the principle, that if I do not positively accept the evidence in support of the accused's, case but that evidence nevertheless leaves me with a reasonable doubt, then I am bound to bring in a verdict of not guilty. It is not the position that I have to believe that the accused is telling the truth before he is entitled to be acquitted of the charges which he faces. 17This is a case where a good deal of effort has appropriately gone into the preparation of the prosecution of Mr McGregor. There were scientists called to give evidence and a large number of exhibits which showed what was found in his unit. It was like an amateur laboratory. It all presented, in my view, a powerful case supporting the charges which were brought against him. It demanded an explanation. Mr McGregor explained almost all, if not all, of what was put to him about what was found. I do not propose to make a finding as to whether or not I accept that explanation. However what I am comfortable in finding is that Mr McGregor's evidence and the way that he presented it and the answers which he gave in response to the cross-examination, leave me with a reasonable doubt about whether the DPP has made out its case against him. I think that there is a reasonable possibility that the explanation given by Mr McGregor is true. 18I watched him carefully as Mr McGregor gave his evidence and I listened carefully to the answers which he gave. He was thoroughly and comprehensively cross-examined by Mr Barr who fairly put to him all of the material which was marshalled in the case against him. I regard it as possible that the account that he gave is true. I repeat, I do not need to consider whether or not I am satisfied in fact that his account is true because the conclusion that I have reached leaves me with a reasonable doubt about the prosecution case. 19Accordingly, so far as count 1 contained in the indictment dated 9 March 2001 is concerned, I find Mr McGregor not guilty of that charge. HIS HONOUR: Now am I right Mr Page and Mr Watts in thinking that count 2 is the count that Mr McGregor has pleaded guilty to. PAGE: Yes your Honour. 20I find Mr McGregor guilty of count 2 in the indictment, namely that he conspired with Brett Staas and Clarissa Burrow to manufacture a prohibited drug, methylamphetamine, in an amount not less than the indictable quantity and I convict him of that offence.