District Court New South Wales Medium Neutral Citation: R v Galway [2014] NSWDC 1 Hearing dates: 25, 26, 27, 30 September 2013; 1, 2, 3, 4, 8, 9, 10, October 2013 Decision date: 28 January 2014 Before: Neilson J Decision: In respect of count 1 - not guilty. In respect of count 1A - not guilty. In the alternative, pursuant to s 24(1) of the Drug Misuse and Trafficking Act 1985, on the charge that between 22 November 2008 and 26 November 2008 at Grose Wold in the State of New South Wales the Accused did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine - guilty. In respect of count 4 - not guilty. In respect of count 5 - not guilty. In respect of count 6 - not guilty. In respect of count 6A - not guilty. In respect of count 7 - not guilty. In respect of count 7A - not guilty Catchwords: CRIMINAL LAW - Manufacture large commercial quantity of prohibited drugs - Expose child to manufacture of prohibited drug - Methylamphetamine - 3,4 MDMA CRIMINAL LAW - Supply commercial quantity of prohibited drug - Deemed supply - Knowledge of possession required - Ketamine CRIMINAL LAW - Possession of prescribed precursor - Intention of Accused regarding prescribed precursor - Pseudoephedrine CRIMINAL LAW - Available alternative of statutory count EVIDENCE - Evidence of witness criminally concerned Legislation Cited: Evidence Act 1995 Drug Misuse and Trafficking Act 1985. Firearms Act 1996 Weapons Prohibition Act 1998 Cases Cited: Davies v DPP [1954] AC 378 DPP v Brooks [1974] AC 862 He Kaw Teh v The Queen (1985) 157 CLR 523 R v Chai (1992) 27 NSWLR 153 Category: Principal judgment Parties: Regina (Crown) Leslie David Bernard Galway (Accused) Representation: P McGrath (Crown) G Wendler (Accused) W Chan (Accused) Director of Public Prosecutions (Crown) Van Houten Lawyers (Accused) File Number(s): 2008/066133 2009/248133 Publication restriction: No Judgment 1On 18 September 2013 the Accused elected to be tried by judge alone. On 20 September 2013 Blanch J, CJDC directed that the Accused be so tried. On 25 September 2013 the Crown presented to me an amended indictment on which the Accused was arraigned. That indictment contained ten counts, although they were not so numbered. The Accused pleaded "guilty" to two counts (those numbered 2 and 3). Those were offences contrary to Firearms Act 1996 s 7(1) (count 2) and to the Weapons Prohibition Act 1998 s 7(1) (count 3). To the remaining charges the Accused pleaded "not guilty". It has become my responsibility therefore to determine whether the Accused is guilty or not guilty of those charges and of any alternative statutory counts. The charges 2The charges to which the Accused pleaded "not guilty" are these: Count 1: Between 1 January 2008 and 27 November 2008 at Grose Wold in the State of New South Wales, manufactured a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that prohibited drug and exposed a child, namely Teeka Cole-Galway, to the manufacturing process. in the alternative, Count 1A: Between 1 January 2008 and 27 November 2008 at Grose Wold in the State of New South Wales, did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that prohibited drug and exposed a child, namely Teeka Cole-Galway, to the manufacturing process. Count 4: On 27 November 2008 at Grose Wold in the State of New South Wales, had in his possession 79.26 grams of pseudoephedrine, a precursor intended by him for use in the manufacture by him of a prohibited drug, namely methylamphetamine. Count 5: On 27 November 2008 at Grose Wold, in the State of New South Wales, did supply a prohibited drug, namely ketamine in an amount which was not less than the commercial quantity applicable to that prohibited drug. Count 6: Between 1 July 2006 and 26 November 2008 at Leppington, in the State of New South Wales, manufactured a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that prohibited drug. in the alternative, Count 6A: Between 1 July 2006 and 26 November 2008 at Leppington, in the State of New South Wales, did knowingly take part in the manufacture of a prohibited drug namely methylamphetamine in an amount not less than the large commercial quantity applicable to that prohibited drug. Count 7: Between 1 July 2006 and 26 November 2008 at Leppington, in the State of New South Wales, manufactured a prohibited drug, namely 3, 4 methylenedioxymehtylamphetamine, in an amount not less than the large commercial quantity applicable to that prohibited drug. in the alternative, Count 7A: Between 1 July 2006 and 26 November 2008 at Leppington, in the State of New South Wales did knowingly take part in the manufacture of a prohibited drug, namely 3, 4 methylenedioxymehtylamphetamine in an amount not less than the large commercial quantity applicable to that prohibited drug. Legal directions 3As this is a criminal trial it is important that I direct myself as I would direct a jury if a jury had been empanelled to decide questions of fact. The onus of proof of the guilt of the Accused for each of the charges is placed squarely on the Crown. That burden rests upon the Crown in respect of each element of each offence with which the Accused is charged. The onus of proof never shifts to the Accused. There is no obligation whatsoever on the Accused to prove any fact or issue in dispute. It is not for the Accused to prove his innocence but it is for the Crown to prove his guilt. In this case the Accused gave evidence and called another witness to give evidence on his behalf. The Accused does not have to prove that his version of events is true. Rather, the Crown must satisfy me that the version of events given in the defence case should not be accepted as a version of events that could reasonably be true. 4The Crown must prove the Accused's guilt beyond reasonable doubt. This is the highest standard of proof known to our law. At the end of my consideration of the evidence and of the submissions of counsel I must ask myself whether the Crown has established the Accused's guilt in respect of each offence beyond reasonable doubt. If there be any reasonable possibility that the Accused is not guilty, then he must be acquitted. However, the Crown does not have the burden of proving beyond reasonable doubt every single fact that arises from the evidence that is in dispute. The obligation which rests upon the Crown is to prove each element of each charge beyond reasonable doubt. As the Accused has given his version of events and called a witness on one of the issues joined between the Crown and the Accused, the Crown must satisfy me beyond reasonable doubt that I ought reject that evidence as a reasonably possible version of the facts. If the evidence given by the Accused and/or that called by him leaves a reasonable doubt as to whether the Crown has made out its case in respect of any element of any offence, then I an bound to return a verdict of "not guilty" in respect of that offence or those offences. In other words, I do not have to believe that the Accused and his witness is or are telling the truth before he is entitled to be acquitted. If I find that there is a reasonable possibility that the version presented by the defence is true, then the Crown will have failed in its obligation to persuade me of the Accused's guilt beyond reasonable doubt, on the appropriate charge or charges. 5The Crown has called the Accused's brother, Daryl Barry John Galway, to give evidence against him. Daryl Galway has been criminally concerned in a number of events giving rise to the present proceedings. On 11 October 2010 he was arraigned on an indictment containing three counts: (1) Daryl Barry Galway from about 20 November 2007 to 20 May 2009 at Leppington in the State of New South Wales did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity for such drug. (2) Daryl Barry Galway from about 20 November 2007 to 20 May 2009 at Leppington in the State of New South Wales did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine, in an amount not less than the commercial quantity for such drug. (3) Daryl Barry Galway where Lesley Galway having committed the serious indictable offence of manufacturing a prohibited drug, Daryl Barry Galway between 20 November 2008 and 20 May 2009 at Leppington in the State of New South Wales, knowing that Lesley Galway committed that offence and knowing that he has information which might be of material assistance in securing the prosecution of Lesley Galway for that offence, without reasonable excuse, failed to bring that information to the attention of a member of the Police Force. Count 1 against Daryl Galway is, but for the particulars as to time, identical with count 6A against the Accused and is based on the same material facts: a clandestine drug laboratory at Leppington discovered by police on 20 May 2009. Daryl Galway pleaded "not guilty" to count 1 against him but "guilty" to the other two counts. The Crown accepted those pleas of "guilty" in full satisfaction of the indictment against him. Daryl Galway assisted the police by giving statements implicating his brother and gave to the relevant authorities an undertaking to give evidence against the Accused. Such assistance was taken into account when Daryl Galway was sentenced on 1 April 2011 by Zahra DCJ (see exhibit U). His Honour allowed Daryl Galway a 15% discount on his sentence because of his undertaking to give evidence against the Accused. 6When evidence is given by a person who has been criminally concerned in the events that give rise to the proceedings, the judge is by law required to warn the tribunal of fact that such evidence may be unreliable. The common law rule applies to accomplices (Davies v DPP [1954] AC 378; [1954] All ER 507; R v Chai (1992) 27 NSWLR 153) and would apply in this case. Evidence Act 1995, s 165(1)(d) extends the principle to witnesses with an interest to serve, similar to that of an accomplice. The need to give such a warning arises because the courts have, over the years, accumulated a great deal of experience concerning the reliability of evidence given by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. That experience has shown that the evidence given by such a witness is often unreliable. However, this is not always the position. Nevertheless, I must approach the evidence of Daryl Galway with considerable caution. 7Possible reasons for such unreliability are these: (a)It is only natural that such a witnesses might want to shift blame from himself onto another or others, to either justify his own conduct or to minimise his own conduct. In the process of doing so, the witness might construct untruthful stories, to minimise his own conduct or to maximise that of others, even going so far as to blame a quite innocent person. (b)Such a witness might make false claims as to the involvement of another out of motives of revenge or a feeling of dislike or hostility or as "pay back" for some earlier, perceived wrong. (c)Such a witness may be motivated to give false evidence in order to qualify for a reduction in his own sentence, which clearly happened here. If Daryl Galway did not give evidence against the Accused, the law provides a mechanism by which his sentence could be reopened and the benefit of the discount lost. (d)Experience has shown that once such a witness has given a version of events to the police inculpating the Accused, he might feel locked into that version, even if it contained inaccuracies and/or untruths. (e)There may be other reasons why such a witness gives false evidence but it is not for the Accused to establish the reason or reasons why the witness in lying. When assessing the evidence of Daryl Galway, which I must do later, I must have regard to this accumulation of experience and approach his evidence with the necessary caution. Abbreviations 8In this judgment I shall use the following abbreviations: d-: Dextro- D: Day of trial. e.g. D3 is the third day of the trial DAL: Division of Analytical Laboratories of NSW Department of Health ERISP: Electronically recorded interview of a suspected person FSG: Forensic Services Group of NSW Police Force FSSB: Forensic Science Services Branch of NSW Police Force Hazmat: Hazardous Materials Unit of NSW Fire Brigade IBC: Intermediate bulk container l-: Levo- MA: Methylamphetamine MDMA: 3,4 methylenedioxymethylamphetamine, commonly known as "Ecstasy" NMI: National Measurement Institute of the Commonwealth of Australia P2P: 1-phenyl-2-propanone T: Transcript e.g. T165.25 means transcript page 165, line 25 Brief overview 9These proceedings arise out of the execution by police of two search warrants. The first search warrant was executed on Thursday 27 November 2008 at 74 Scotts Farm Road, Grose Wold ("Grose Wold"). This gave rise to the counts numbered 1 to 5 in the indictment. The second search warrant was executed on Wednesday 20 May 2009 at 151A Dickson Road, Leppington ("Leppington"). This gave rise to the counts numbered 6 to 7A in the indictment. Background - Grose Wold 10The Accused was born on 11 October 1968 (exhibit T). At the time of the execution of the search warrant he was 40 years old. For a number of years he was in the business of supplying firewood. On 20 June 2002 the Accused commenced a tenancy at 74 Scotts Farm Road, Grose Wold (T 29.36). He initially lived there with his partner Ms Alison Mudford, her daughter Emma and their daughters Madison and Paige (T 327-8). In 2002 the yard where the firewood was stored was at Llandilo. There was an increased demand for firewood in 2003 and, probably in 2004, the Accused and his family moved to the property at Llandilo. The Grose Wold property "sat dormant for a while" and was then used by the Accused and his family as a weekender and for "time out". In late 2006 or early 2007, the Accused and his family moved back to Grose Wold. For about 12 months before the Accused moved back, the property was occupied by a friend of the Accused, and his wife (T330). There is no suggestion that at any time during 2008 Ms Mudford and her daughters were living at Grose Wold. The inference to be drawn from the evidence of the Accused is that he and Ms Mudford separated in 2007, her taking her daughters with her. The Crown case is that, in early 2008, the Accused's daughter Teeka Cole-Galway (the fruit of an earlier relationship of the Accused with Ms Christine Cole), who was 13 years old at the time of the execution of the search warrant, commenced to reside at Grose Wold with the Accused. An agreed fact (exhibit D, par 2) admits as much but it is very much in issue as to whether she so resided at the relevant time (which itself is very much in issue). 11Grose Wold is a three acre property (T330.03). It was rented by the Accused for $350 per week (exhibit D par 2). Access to the property is from the east. There is a front paddock with a rural wire fence on the eastern boundary. On the western side of the front paddock is a white, wooden picket fence behind which stands the house, which faces east. There is a front balcony. The front door gives access to the lounge which occupies the north east corner of the house. West of the lounge are a dining area (in the north-west corner) and below that (i.e. to its south) is the kitchen. There is no laundry room as such but the laundry appliances are in a recess on the southern side of the kitchen, and could be, I infer, covered by doors. The southern half of the house contains four bedrooms and a bathroom, access to which is gained by an "L" shaped corridor, leading from the lounge. Bedroom 1 on the western side of the house was occupied by the Accused and bedroom 4, fronting onto the front balcony, was Teeka's room. The rear (western) door of the house opened its backyard from the kitchen. It is to be noted from the sketch plan (as the Accused said in evidence) that from the front door one can see into the kitchen and see at least part of the kitchen bench. However, one would not see from the front door anything that had been moved onto the dining area floor. 12Behind the house, in the north-western corner of the backyard is a shed. Attached to the eastern side of the shed is a structure identified as the "annexe". South of the shed was placed a shipping container, which is of no relevance in these proceedings, other than to identify where certain items were found. The Accused could be described as a collector or hoarder or, to use an Americanism, as a "picker". This evidence was elicited by Mr Wendeler, for the Accused, in cross-examination of the Officer in Charge, Detective Senior Constable Reay: Q. Now the property at Grose Wold you described as being in a rural setting and on acreage. Is it fair to say that when you arrived there you were confronted by a scene which could be described as a riot of junk strewn all about the property? A. Mr Galway does like to collect items, such as vehicles, yes. Q. There were obviously used cars everywhere, is that right? A. Yes. Q. I think you identified a shipping container or more than one. A. Yes. Q. Lots of refuse. A. Yes. Q. In fact there was junk just strewed all about and adjacent to the house. A. I don't know if you would refer to it as junk but there were a lot of items around the house. Q. Well if we go to exhibit A, and have a look at some of the photographs that were taken, exhibit A of the condition of circumstances pertaining to the area surrounding the house. Can I just invite you to photo 7 of exhibit A, the Grose Wold property. A. Yes. Q. We'll start with photo 6 actually, it might be a better photo. We can see a view of the residence a view of the driveway and left and right of that driveway there appears to be all sorts of a jumble and riot of all sorts of things alongside the driveway. A. There's a lot of items there but I'd say that they're generally items of value. Q. If you go to photo 7. HIS HONOUR: Excuse me. The transcript should record that Mr Wendler is cross-examining the witness upon the photos under tab 1 concerning the Grose Wold property. WENDLER: Yes, thank you. Q. Photo number 7, is that a photograph where we can see at the end of the photograph a number of cars and tyres and chattels piled up. Do you see that? A. I see tyres, a lawn mower, a number of cars in the rear of the photograph, a gas bottle to the right, there's some items, a motor cycle, a quad-bike and some other items that I can't really make out there. Q. In photograph number 8 more cars adjacent to the home. A. Yes. Q. And photograph number 9. A. Yes. Q. Which appears to be taken looking down the driveway, in other words, in the opposite direction to the photograph in number 7. A. Yeah, from the rear of the property looking back towards the rear of the house. Q. When you entered the actual inside of the home it was, to put it politely, in an untidy state, wasn't it? A. Yeah, in my opinion it was untidy, I've seen worse. HIS HONOUR Q. With the utmost respect I would have called it a housewives' nightmare. A. Yes, your Honour, my wife wouldn't be happy with it. WENDLER Q. When you interviewed Mr Hart do you remember interviewing Mr Hart? A. I do. Q. Do you remember his description of the inside of the home? A. Yes. Q. He called it a pigsty, didn't he? A. He did. The photographs in exhibit A of the Grose Wold property show the Accused's eclectic collection both inside and outside of his house. Execution of the search warrant at Grose Wold 13Shortly before 7am of Thursday 27 November 2008, police from the Windsor Local Area Command executed a search warrant at Grose Wold. There were six detectives, two uniformed officers, dog handling officers and Inspector Pinchot as the independent officer. The Accused and Ms Lisa Bullock were found in bed in the main bedroom. Both were arrested, cautioned and immediately conveyed to the Windsor Police Station. The Accused was to remain in custody until posting bail on, probably, 11 May 2009 when he was released from Parklea Correctional Centre. After being interviewed, Ms Bullock was released without charge. 14The police discovered what they described as a clandestine drug laboratory. There is evidence that both the kitchen in the house and the shed were being used, or had been used, for that purpose. DSC Reay briefly entered the shed. He saw items consistent with its being used as a clandestine laboratory and experienced "an acid chemical, acrid type of smell" (T03.40). Then DSC Clarke described the same odour as "a strong chemical smell, like a solvent smell." A fan was blowing air over a pyrex measuring jug which was placed on a gas burner. The gas burner was later numbered G41. In the items discovered in this area of the shed were two pyrex measuring jugs (G02 mistakenly labelled "1 Litre pyrex dish") and a 500 millilitre pyrex measuring jug (G24). The former contained "an amount of brown liquid" and the latter "an amount of off-white liquid." It is clear from general photograph 25 of the property and "exhibits in situ" that the jug on the burner, over which the fan was blowing, contained a brown liquid: hence it was jug G02. Analysis of that liquid states that it contained "3.61% pseudoephedrine, an estimated 3.11% ketamine and an estimated 0.72% ephedrine. It also contain[ed] chlorpheniramine." Significantly it contained no trace of MA. On the hotplate of the kitchen was found a pyrex pie dish (A19) containing "a quantity of clear/beige coloured liquid". That liquid was later analysed and contained "27.9% pseudoephedrine" and chlorpheniramine. 15Police from the Chemical Operations Unit of the Drug Squad and forensic chemists were then called in. The inference which I drew from the evidence is that police operations ceased until their arrival. The following processes then occurred: (a)A safety inspection carried out by an officer from the Chemical Operations Unit and an officer from Hazmat. (b)A site inspection by an officer or officers from the Chemical Operations Unit and a forensic chemist, which was recorded on video film (for the Grose Wold property it is exhibit B). Both these processes were carried out by officers wearing full body protection suits and breathing apparatus. It was to ensure that it made "it safe for ordinary police to conduct a normal search" (T06.18). Police referred to the places in which the laboratory was found as "hot zones". (c)Letters were then ascribed to various areas in the hot zones. (d)Police from the Chemical Operations Unit then collected items from each hot zone and took them back to a processing area ("warm zone") where they were labelled with the letter of the area from where they had been moved and a number. (e)Each item was then photographed. (f)Samples were then taken of any liquids by a forensic chemist using a pipette and of any solid using a spatula. If no liquid could be obtained or solid could be obtained from e.g. glassware found at the site or some electrical apparatus, a solvent (methanol) was used to obtain any residues from glassware or an alcohol swab was used to obtain any residue that could be collected. From most of the items so listed two samples were taken, an "A" and a "B" sample - the latter clearly to be used as a control sample. Liquids were "homogenised" by shaking or stirring prior to sampling so that the sample was representative. The samples were placed in glass vials which had caps as lids, very similar to the tubes used to collect blood. (g)The forensic chemists also sought to determine the weight and/or volume of any solids or liquids. (h)Each item was recorded in an "Exhibit Log". That, for Grose Wold, is exhibit L. (i)Most of the items so identified were destined to go to NSW Waste, but some items were handed to the case officer, DSC Andrew Mackay. 16The areas into which the Grose Wold property was divided are these. The bracketed numbers on the right side of this table are the number of items identified by the police. A: Kitchen and laundry of the house (63) B: Dining area of the house (19) C: Area outside the back door of the house (8) D: Dirt floor of the shed (41) E: North side of the shed (on benches etc.) (23) F: West side of the shed (on benches etc.) (23) G: South side of the shed (on benches etc.) (65) H: Refrigerator on south side of the shed (13) I: Area immediately north of the shipping container (14) J: White Commodore at rear of the house (1) K: Between the shipping container and the house (middle of the backyard.) (1) L: Grass on a fence line at the rear of the property (4) M: Another vehicle at the rear of the property (1) Excluding items I06 (a rifle scope and firearms ammunition) and J01 (firearm parts), police identified 274 items. The forensic chemists collected 156 primary (A) samples. The forensic chemists involved in those processes at Grose Wold were Ms Allayna Edgar and Ms Erin Ellis (on both 27 and 28 November 2008) and Mr Peter Ballard from 2pm on 28 November 2008. Ms Ellis gave this evidence in re-examination as to the process in determining what to sample: Q. Ms Ellis, in relation to those items from which samples were not taken you've been asked questions by me and in cross-examination about that. Can you tell us, please, based on your recollection and to the extent that your notes assist and based on your training and experience, in respect of Grose Wold what factors informed the decision whether or not to take a sample from items that you examined? A. Yep, for Grose Wold as there were a number items at the premise we took washes and swabs of items of importance such as scientific glassware or items that we believed could have been used in the manufacture process. Items such as glass jars that contained just residues of liquids that may have been in there weren't tested, they only contained a small amount so we took samples from items that contained large amounts of liquids and there were a large number of those. We collected filter papers, not all of the filter papers. As we've seen from the exhibit log there were a number of items containing filter papers so we collected what we believed was a representative sample of each of the types of items that we observed at the residence. Q. So it was an informed process rather than a random selection of items? A. Very much so. In addition it should be noted that some items were inappropriate for testing e.g. some electrical items. Chemical analysis 17All the chemical samples obtained by the forensic chemists were taken to the police laboratory at Pemulwuy, where a preliminary analysis was made. Eight of the sample vials were damaged in transit (D06, D14, D16, D25, D27, E11, F03, G04) and no analysis could be made of them. The defence challenged the evidence of Ms Ellis as to the continuity of the chemical exhibits, their security before removal from Grose Wold and as to contamination of other chemical exhibits by the leaking of fluids from the damaged vials. However, having carefully considered her evidence, I am confident that the chemical exhibits, i.e. the samples, were safeguarded at Grose Wold, were properly transported to the laboratory at Pemulwuy and that the damage to the eight vials I have just mentioned led to no contamination of the other samples. After the preliminary sampling at Pemulwuy, 59 samples were sent to NMI at Pymble. 18Ms Ellis made a chart of the items that were not listed (exhibits O and O1). It lists 112 items. However, 156 plus 112 makes a total of 268, which is 6 less than the 274 items referred to in [16] above. This discrepancy has not been explained. Of the items listed in exhibit O, 16 were handed to the case officer (leaving aside I06 and J01). Of those 16 items, 11 went to DAL for analysis. However there are DAL certificates for 25 items. I list below the dates of the DAL certificates for the items analysed, giving the Chemical Operations "exhibit" number: 4 February 2009: D04, A08, A61, H11, G10, H10, B17 25 February 2009: A47, A48, A55, A52, A54 27 February 2009: B13, B08, A20, A43 25 March 2009: Nine items without any number, but two of which were taken from the Accused's bedroom (a bag and a box of proprietary medicines each containing pseudoephedrine) Of the above listed items A08, A61, G10, A20 and A43 were not handed to the case officer but were sampled by the forensic chemists. Why those samples went to DAL rather than NMI has not been explained. Each of the 7 items in the certificate of 25 March 2009 not taken from the Accused's bedroom were taken from the kitchen. Why they were not recorded in the "exhibit log" (exhibit L) has not been explained but it is clear from what the photographs show that they were taken on 27 November 2008 by police present at the execution of the search warrant. I mention these things because they create judicial angst and waste time, checking to make sure that something has not been overlooked. 19The results of the chemical analysis of items numbered between A02 and K01 are tabulated in Appendix A to the report of Mr Peter Ballard of 10 January 2012 which is part of exhibit N. Before outlining the Crown case, it is necessary to consider the process of the manufacture of MA. The manufacture of MA 20There are a number of steps that are taken to manufacture MA. These steps assume that the manufacturer does not have available pure pseudoephedrine. The first step is the extraction of pseudoephedrine from a proprietary medicine such as Sudafed, Demazin or Codral. Pseudoephedrine is the most common precursor chemical used to manufacture MA because the structure of the molecule of pseudoephedrine is very similar to that of MA. The proprietary medicine contains a proportion of pseudoephedrine and may also contain an anti-histamine such as chlorpheniramine and/or an analgesic. They also contain fillers and binders. The proprietary tablets are firstly pulverised using either a mortar and pestle or blender or coffee grinder or spice grinder. Methylated spirits (ethanol) is added to the powder. The pseudoephedrine dissolves in the methylated spirits, as does the chlorpheniramine. The binders, fillers and other items in the powder are insoluble in methylated spirits. One ends up with a two-layered mixture, pseudoephedrine (and chlorpheniramine) dissolved in the methylated spirits as a top layer and underneath a "sludgy layer" containing the insolubles. The two layers then need to be separated. That can be done by decanting the top layer into another vessel or by using a filtering device, the insolubles being trapped in the filter. Filtration maximises the amount of solvent recovered. 21The second step is to drive off the methylated spirits, to evaporate the solvent. Mr Ballard gave this evidence: A. Basically it's a matter of evaporating the solvents. Typically methylated spirits. That can be done in a number of ways. It could simply be just left there to air dry or placed out in the sun, but that can take a reasonable amount of time. To speed up the process the typical way of obtaining the pseudoephedrine is to heat the mixture. So that solvent can be placed into some sort of vessel which can then be heated. Pyrex dishes are quite often used like a Pyrex type baking dish. The liquid placed in that dish or other vessel and either placed in a microwave oven and heated for a period of time in the microwave oven to evaporate the solvent or often just placed on some sort of heating element on a stove top, or a separate heating element. Q. When the evaporation process is complete, what is left? A. What's left is well, it depends on the tablets that were used to start with. If they were what we call single entity pseudoephedrine tablets that contain only pseudoephedrine and the binders, then you would be left with reasonable pure pseudoephedrine, or at least a fairly high percentage of pseudoephedrine. If it contains other things like the antihistamines then it will contain the pseudoephedrine plus antihistamines. ......... HIS HONOUR Q. Then in what state would it be powder, crystals? A. It's generally a solid. It can be, I mean, if, if it's being stirred or scraped with a spatula as it's evaporating it can break it up. If it's just left there to evaporate there will be a solid layer on the bottom of the Pyrex dish or whatever other vessel is used. The purity of the pseudoephedrine thus recovered may be anywhere between 50% and 80%, but about 70% can be expected. 22The third step is the chemical reaction or "reflux" of pseudoephedrine and iodine and hypophosphorous acid. These chemicals are mixed in the ratio of 1:1:1 although Mr Ballard had also heard of the ratio 2:3:3 (T200). Earlier, Mr Ballard had given this evidence: "[G]enerally after a short period of time a spontaneous reaction will occur and the three components will start reacting and the pseudoephedrine will start the process of converting to methylamphetamine. Typically after a short period of sort of self initiated reaction the vessel which the mixture is in is placed on some sort of heating element and heat is applied to it and that's continued for a period of time with the mixture which is a liquid, sort of just boiling slightly, just a slow boil. And that process continues the reaction and converts and pseudoephedrine to methylamphetamine." This reaction takes place in a vessel. Generally, scientific reaction flasks are used for this purpose. Those flasks come in various sizes. A condenser can be used in this step. Mr Ballard explained its use at this stage of the process thus: A. That item is a condenser. It is used to condense vapours that come out of the reaction flask. It's used in scientific processes and attached to a reaction flask either in a vertical position in the top of the flask when a reflux is being carried out. So when the reaction mixture is boiling the condenser sits on top of the flask in a vertical position; vapours that come off like steam when you boil a jug, those vapours go into the condenser; there's a water jacket in the condenser which is fed water via those tubes that you can see connected to it, and they cool the vapours; condense them back to a liquid, and they drip back down the tube and into the flask, so you have the control of boil where there's no pressure build up because the top of the condenser is open but it's it makes it somewhat of a closed system where vapours that are produced will condense and fall back in so the liquid doesn't boil dry in a short period of time. HIS HONOUR Q. And you don't lose product? A. That's right. 23The fourth step was described as the "distillation stage". Caustic soda is added to the mixture to make it alkaline, after the mixture has cooled. In the alkaline mixture, MA will separate and form an oily layer on top. Beneath that layer will be "generally [an] orange or brown reaction mixture ... which is strongly alkaline". It is in fact a waste product which needs to be drawn off. That can be done by using a separating funnel and when the MA oil (also called MA base) reaches the tap of the funnel, the tap is closed, thus isolating the MA oil. An alternative method is the use of a condenser. Mr Ballard said this: "The other way a condenser can be used is in the distillation process which, after you've manufactured your methylamphetamine, added caustic soda to make it alkaline, and separate the methylamphetamine oil, then that mixture can be distilled, either just directly distilled or by another process known as steam distillation, where steam is purged through the mixture and the condenser is attached to the flask via either a distillation head or something else known as a splash head or even just a glass elbow or a bent piece of tubing, which will have the condenser pointing slightly down and away from the reaction flask and that will cause any vapours that are produced at that stage to go through the bend, into the condenser, condense and then the liquid product drips out the end of the condenser into whatever collection vessel you have available." The advantage of the use of steam distillation is that it purifies the MA oil as well (T196.40). 24The fifth step Mr Ballard described as the "salting-out process." Typically, MA oil is dissolved in a solvent such as acetone. Hydrochloric acid is then added and the MA will react with the acid to form MA-hydrochloride which is insoluble in acetone and precipitates out and falls to the bottom of the vessel as a fine, crystalline powder. A pH meter or pH strips may be used at this stage. Mr Ballard said this: "As the hydrochloric acid is added to the mixture of acetone and methylamphetamine base, the pH can be monitored and you're dripping the hydrochloric acid into the mixture and it's binding to the methylamphetamine, then the pH should pretty much stay the same. When all of the methylamphetamine has been bound to the hydrochloride then any excess acid which is added will start to make the solution acidic and you know, at that stage, by monitoring with a pH strip or pH meter, that the salting out process has been completed." Later he said: "[T]he hydrochloric acid is then added in small quantities, I've seen it added using disposable plastic syringes of various sizes, added to the acetone-methylamphetamine mixture and as I described it can be monitored with a pH meter or pH strips until the liquid starts to turn acidic or pH less than 7 and that indicates that all of the methylamphetamine oil has been reacted with the hydrochloric acid." Finally, the MA-hydrochloride powder is separated from the acetone by filtering (T202.38). 25Unless it be found in situ, the way to determine how much MA has been manufactured is to measure the waste product. If one mixes 100 grams of pseudoephedrine with 100 grams of iodine and 100 grams of hypophosphorous acid one expects to obtain 76 grams of MA-hydrochloride. The waste from the initial 300 grams would be 224 grams but the waste is greater if steam distillation be used. Mr Ballard was aware of a report of the Australian Crime Commission on clandestine laboratories which states that for every kilogram of pure MA produced, up to 10 kilograms of hazardous and toxic waste is created. However he did not know the source of that statement, its veracity or scientific basis. On that concession and bearing in mind that this is a criminal trial I am unable to accept a ratio of 1:10. Mr Ballard went on to say that in the scientific community "an extremely conservative" ratio in drug manufacture was 1 part drug : 100 parts waste. I base my deliberations on that ratio. 26When MA is manufactured using pseudoephedrine, the form d-MA is made. The waste product will often contain un-reacted pseudoephedrine because of an imbalance in the proportions of the three chemicals used in the reflux or because the reflux was not carried on long enough (T198.35). If there were an anti-histamine in the original proprietary tablet it will be present in the waste, as will traces of d-MA. The waste is typically "a dark brown substance" (T199.27). The expert evidence 27Expert evidence was given in this trial by Mr Peter Ballard. It ought to be obvious from what I have said about the manufacture of MA that I have based my findings on his evidence. In his report of 10 January 2012 (part of exhibit N), he states his qualifications thus: Qualification: Bachelor of Applied Science (Applied Chemistry) from University of Western Sydney. Other Study/Experience: I have over twenty (20) years experience as an analytical chemist, including fourteen (14) years in the analysis of illicit drugs and related substances. This experience has been gained whilst working at the NSW Division of Analytical Laboratories (DAL), the Australian Government Analytical Laboratories (AGAL)/National Measurement Institute (NMI) and the NSW Police Force Forensic Services Group (NSWPF FSG). I have analysed many samples and I have seen the results of analysis of many samples examined by other analysts. For more than twelve years my duties have included attendance at premises where manufacture of illicit drugs is suspected. Such sites are commonly called "clandestine laboratories" or "clan labs". I have attended numerous sites within New South Wales where there was evidence of processes used in the manufacture of restricted substances. During my employment at the AGAL/NMI I carried out analysis of many items seized in relation to "clan labs". I have attended state and national training courses related to attendance and processing of clandestine drug laboratories and chemical, biological and radiological (CBR) crime scenes. I have completed the NSW Police Force Bomb Scene Examination Workshop and received training within NSW and interstate on the analysis of explosives and explosive residues. I have also developed protocols for the field sampling and laboratory analysis of unknown and hazardous chemicals. I have discussed aspects of illicit drugs, explosives and CBR agents with scientific colleagues and law enforcement personnel, both in Australia and overseas. I am the NSW representative for the national Chemical Warfare Agent Laboratory Network (CWALN). I have attended conferences and workshops relating to drug analysis and manufacture both in Australia and overseas. In the course of my duties I have carried out extensive reading regarding drugs, explosives and CBR agents in relation to analysis, production methods and use. My reading includes scientific publications, periodicals circulated between forensic laboratories, police intelligence information and 'underground' publications. I have given evidence at legal proceedings on numerous occasions. This has been at the levels of Local and District Court, for evidence of both fact and expert opinion. As well as NSW courts, I have given such evidence for courts of law in Queensland, Northern Territory, Western Australia and Victoria. At the time of giving evidence, because of a government reorganisation transferring forensic services from NSW Police, he was employed by NSW Health Forensic and Analytical Science Service, but was still working as a forensic chemist. I was greatly assisted by his evidence and have no hesitation in accepting his expert evidence. The defence qualified an expert witness from Queensland, Mr Robertson, but he was not called to give evidence as Mr Ballard conceded in cross-examination all that the defence sought from him. The Crown Case - Grose Wold - MA 28The essence of the Crown case concerning the charges alleged at Grose Wold is that all the drugs, drug ingredients, manufacturing equipment and drug waste found at Grose Wold were used for or resulted from the manufacture of MA at that site. That is pithily summed up by this evidence given by Mr Ballard: Q. Are you able to say whether there was present at the Grose Wold premises all the items of scientific apparatus, whether modified or purpose built, and equipment to enable the manufacture of methylamphetamine to take place at that time? A. Yes, there was. Q. So from the pseudoephedrine extraction process through the reflux distillation and resulting in the methylamphetamine hydrochloride? A. Yes. Q. My question was directed to equipment? A. The equipment, yes, there was. Q. Were you able to form an opinion upon your examination of the precursors and chemicals and substances and products located whether there was, present at Grose Wold, all the raw materials, if we can call them that, to enable the manufacture of methylamphetamine to take place on the property? A. Yes, there was. There was the tablets, pseudoephedrine containing tablets, methylated spirits there for the extraction. Then for the next step there was the extracted pseudoephedrine, hydrophosphorous acid and iodine. There was also caustic soda and hydrochloric acid and acetone. From his report of 10 January 2012, the following ought be noted: (a) Par 12 points out that pseudoephedrine was found present in items A09, A10, A11, A12, A19, A20, A57, B05, B07, B15, B18, D35, D37, E01, E03, E07, E12, E13, E16, E20, E23, F16, G01, G02, G08, G09, G15, G28, G30, G31, G32, G32, G33, G34, G59, H04, I02, I14 and K01. Many of those items also contained chlorpheniramine. (b)Par 14, as explained in oral evidence (T234.75), states that there were factory-labelled containers which had initially contained 88 litres of methylated spirits. (c) Par 15 points out that quantities of iodine (items G29 and G53) and hydrophosphorous acid (items C03 and G58) were found. (d) Par 15, with a concession made by Mr Ballard at T238.23, points out that in items A12, B07, B18, D35, E01, E03, E16, E23, F16, G28, G30, G32, G33, G34, H04, I02 and K01 pseudoephedrine was identified in combination with traces of MA, the pseudoephedrine being un-reacted in the manufacture of MA from, clearly, larger amounts of pseudoephedrine. (e) Par16: "The methylamphetamine and pseudoephedrine was present in low or trace quantities in the items listed in paragraph 15. These items total in excess of 200 litres of liquid containing methylamphetamine and pseudoephedrine. In my opinion, these items are the waste product from the manufacture of greater than a large commercial quantity (>1 kilogram) of methylamphetamine from pseudoephedrine." Applying the 1:100 ratio, one assumes that the waste liquid had the same density as water, in excess of 200 litres of waste indicates 2 kilograms plus of MA. Whilst the waste liquid would be denser than water, one can easily accept that at least 1 kilogram of MA was the result of such waste. (f) Par 19 lists scientific glassware found at Grose Wold which is commonly used in the manufacture of MA. (g) Par 21 lists other equipment commonly used in the manufacture of MA. (h) Par 22: "The manufacture of methylamphetamine is usually carried out within reaction flasks. Paragraph 19 lists reaction flasks of 3 litre and 5 litre capacities which were seized by police. The generation of more than 200 litres of liquid methylamphetamine waste using a 5 litre reaction flask equates to more than 40 instances of methylamphetamine manufacture. The use of a 3 litre reaction flask equates to more than 66 instances of methylamphetamine manufacture. In my opinion, this equates to the manufacture of greater than a large commercial quantity (>1 kilogram) of methylamphetamine from pseudoephedrine." The Crown case - Grose Wold - ketamine 29Item D04 is described in the "exhibit log" (exhibit L) as a "brown cardboard box with yellow 'DHL' tape containing a plastic bag containing an amount of brown powder." This has been analysed as 1,718 grams of ketamine with a purity of less than 1%. Mr Ballard gave this evidence about this drug: "Ketamine is a substance which is used, I believe it's used in veterinary clinics as an anaesthetic for animals but it's also been used around the world as an anaesthetic for humans. It is a substance that I know has been abused and one of the street names of it is Special K and a number of years ago, not for, not for probably ten years or so now, but a number of years ago I was aware that there were a number of seizures or quite a few seizures of methylamphetamine which had been adulterated with ketamine." In cross-examination, Mr Ballard agreed that as ketamine is used as an anaesthetic it could be regarded as a tranquiliser, the opposite to a stimulant which is what MA is. He then gave this evidence: Q. It wouldn't make sense, would it, in your experience, to mix ketamine with amphetamine, would it? A. My understanding is, again from reading and discussions with colleagues, that ketamine in some doses has an hallucinogenic type effect and I think I stated yesterday that ten years ago or so there were quite a number of substances which were being analysed by the laboratory that contained methylamphetamine and ketamine and from memory some of those were - or many of those were in tablet form which were being passed off as I guess fake ecstasy tablets. So I have seen it, not for quite some time, but I have seen it on numerous occasions where methylamphetamine has been mixed with ketamine. Q. Generally speaking wouldn't you agree that it wouldn't make sense to mix a tranquiliser with a stimulant? A. Well I can't really speak for the synergistic effect of the two combined. 30From Appendix A to Mr Ballard's report of 10 January 2012 it can be seen that ketamine was found in E07, G02, G08, G16, G25, G34, G35, G39, G40, I02 and I14. It is found in combination with pseudoephedrine in E07, G02, G08, G35 and I14. In I02 it is found in combination with traces of d-MA and pseudoephedrine. G34 is a "Cornwall's Malt Vinegar" bottle containing 309 grams of brown waste liquid containing 1.39% pseudoephedrine, 0.07% d-MA, an estimated 0.02% MDMA and traces of ketamine. I observe at this stage that there is no allegation of, and no evidence to support, the manufacture of MDMA at Grose Wold. This suggests that this item may have come from elsewhere, which is part of the defence case. In addition, a small plastic bag containing 0.27 grams of ketamine was found on the kitchen windowsill (one of seven items not identified in the "exhibit log" or assigned a chemical operations exhibit number). Item B13, a one litre pyrex measuring jug with a teaspoon in it, found on the dining area floor, contained 4.99 grams of ketamine. Item A43 is a Glad snap-lock bag containing 1.23 grams of ketamine, found on the kitchen bench. The last three items strongly suggest that ketamine was being mixed with pseudoephedrine which was being extracted in the Accused's kitchen. The Crown case - Grose Wold - pseudoephedrine 31Police found in the Accused's kitchen a small, resealable, plastic bag containing 13 "Chemist's Own Sinus Relief" tablets, each containing 60 milligrams of pseudoephedrine (Grose Wold photographs, pink tab 2, no. 3). Underneath the Accused's bed, police discovered a large, resealable, plastic bag containing 867 "Panadol Sinus" tablets, each containing 30 milligrams of pseudoephedrine, a further 432 "Panadol Sinus" tablets, each containing 30 milligrams of pseudoephedrine and 697 "Panadol Cold and Flu Middle East" each containing 30 milligrams of pseudoephedrine. In the second drawer of the Accused's beside table was found a cardboard box containing a further 620 tablets (either "Panadol Sinus" or "Panadol Cold and Flu Middle East") each containing 30 milligrams of pseudoephedrine. Mere mathematics tell me that this amounts to 79.26 grams of pseudoephedrine, which is the amount pleaded in count 4 in the indictment. 32In a ruling made on 4 October 2012, I dealt with four different submissions made by the defence. Commencing at [18] I dealt with a submission that there was no evidence of the presence of the precursor drug pseudoephedrine. Essentially the Accused argued that those proprietary drugs did not satisfy the statutory criteria to amount to the prescribed precursor drug. I need not repeat what I said at that time. My reasons have been transcribed and are available. I rejected the submission and held that the prescribed precursor within the proprietary medication satisfied the statutory criteria. Background - Leppington 33In 2004 Mr Daryl Galway was sentenced to imprisonment for 2 years and 6 months for manufacturing a prohibited drug at Llandilo and multiple firearm offences. His non-parole period was 1 year and 3 months (exhibit U). He was released from the John Morony Correctional Centre on 24 June 2005 on parole. Whilst he was in custody his partner, Ms Angela Barry and their children moved to a house known as 151A Dickson Road, Leppington ("Leppington"). On his release to parole, Mr Daryl Galway moved into that property. The property is on the western side of Dickson Road. At the front of the property, on its northern side is the house known as 151 Dickson Road. On the southern side of no. 151 is a driveway. On the Southern side of the driveway is no. 151A but it is set back further on the property than number 151. About 40 metres further west is a large shed which was formerly used as a chicken laying shed. It is on the northern side of the driveway. The driveway which gives access to both no. 151 and no. 151A and the chicken shed can be closed by a gate attached to the northern side of the house, no. 151A. 34Mr Daryl Galway (hereafter "Daryl") decided to rent this shed from the owner of the property, a Mr Ibrahim. Daryl said that he rented the shed either six or eight months after he moved to no.151A, i.e. either late 2005 or early 2006. However, Zahra DCJ records that Daryl told police on 4 June 2009 that he commenced renting the shed one month after moving to no. 151A. His purpose in renting the shed was "just to store furniture and excess stuff and a few cars, and bits and pieces" (T59.11). The weekly rental was $120. At a time he could not specify in his evidence-in-chief, he told his brother, the Accused, that he had rented the shed and that if the Accused need to store anything there he could do so (T61.02). At that time the Accused was living at Llandilo, but was moving (back) to Grose Wold. From the evidence of the Accused, as I found when discussing the background at Grose Wold, that move was in late 2006 or early 2007. According to Daryl, the Accused moved some household furniture, quite a few cars and a hoist into the shed and put firewood that he had around the side of the shed (T61.29). That evidence is consistent with the Accused's evidence. Daryl put a padlock on the sliding door at the front of the shed. He gave one key to the Accused and kept one for himself. Execution of the search warrant at Leppington 35Police executed a search warrant at Leppington at 10am on Wednesday 20 May 2009. Seven police were initially involved. No one was home at no. 151A. Police telephoned Daryl and advised him that they were executing a search warrant. The only item of significance to the police found in the dwelling house was Daryl's key to the chicken shed. Police from the Chemical Operations Unit had attended with the ordinary police and had gone directly to the chicken shed. Prior to doing that, however, police had to force the gate on the side of no. 151A that barred their access up the driveway to the chicken shed. The gate was closed with a padlock. It was a "decent sized lock" that caused one of the bigger policemen to "strain with a set of bolt cutters" (T23.24) to cut it. Police from the Chemical Operations Unit were not able to obtain access to the chicken shed until the key was obtained from the search of the house. DSC Reay said this: "...the police from the chemical operations unit were trying to gain access, and they couldn't, there was no loose panels. There was a heavy-duty lock, I believe it couldn't be cut, it was quite heavy-duty. You could see through a crack, I think, in one panel, that there might have been some items, relevant to our inquiries." Then DSC Mackay gave this evidence: Q. If I can just refer you to that. Did you attempt to gain access to the large chicken shed? A. I did. We were conducting a search, a cursory search, outside of the residence and particularly the large shed in the rear yard. The front of it was closed and locked and all the way around the outside was closed and I tried to pry back a piece of metal sheeting on the outside to peer inside. It was really quite difficult to pull back and I was able to see briefly inside the building. Q. Okay. You described the security for the shed as, in paragraph 7, 'a large commercial padlock of significant strength and security.' A. It was a very sturdy and strong and commercial, in fact, I don't think I've seen anything as strong ever before ... It was physically large in size and made of quite strong steel. Q. Is your evidence that until that lock was able to be unlocked, you were unable to gain access to the shed? A. That's correct. I have quoted this evidence at this time as it will be necessary later to contrast it with the evidence of Daryl. 36Then DSC Mackay did not notice any particular smell in or about or from the shed (T164). He was challenged about that (T165) but I accept his evidence that there was no unusual smell coming from the shed, such as an "agricultural" smell, the smell of chickens or of chicken droppings or manure, or of any chemical smell. At the time of the execution of the warrant, the weather was fine but later changed as it rained heavily from time to time (T23.44). Nevertheless, there was no change of smell detected by then DSC Mackay. 37On gaining access to the shed, police found another clandestine laboratory. The search process adopted at Grose Wold, which I summarised in [15] above was then again carried out. The video recording of the site assessment for Leppington is exhibit C. There are in evidence two sketch plans of the chicken shed, one in exhibit A and exhibit R. The police identified seven areas within the shed, marked as A to G but provided no verbal description of these areas. By contrasting the sketch plan in exhibit A and exhibit R it is possible to do so. Before I do that, I shall briefly describe the shed. It is rectangular, the long side (that running south to north) being much greater than its width (east to west). As I have already stated its doors are on the southern wall, and provide the only access. Within the shed, immediately east of the doors is a room identified as B. Its rear wall is the southern wall of the shed. Its east and west walls run parallel to the east and west walls of the shed. Its northern wall contains an entry door. It could be considered to be a small office or storeroom. Between the eastern wall of room B and the eastern wall of the shed is an area identified as A. The sketch plan in exhibit A suggests that this area is wholly enclosed but it is not. The "northern wall" suggested by the exhibit A sketch did not exist. Area A was open to the rest of the shed. Roughly in the middle of the shed was a vehicle hoist and north of that was a line of motor vehicles. 38The areas identified by the police can be described in the following way. The bracketed number on the right side of this table is the number of items identified by the police. The bracketed number on the right side of this table is the number of items identified by the police. A: Open area in the south east corner of the shed, which contains a bench. (49) B: The small room I have just described, which also contains a bench. (40) C: A bench along the eastern wall of the shed, closer to the middle of the shed than area A. (64) D: Another bench, free-standing, at a right angle to bench C. (14) E: An area where there were three IBCs, north of D and east of the vehicle hoist. (22) F: An area west of the vehicle hoist, containing a vat identified as F01 (5) G: An area on the western side of the shed, south of area F but north of the entry doors. (21) 39The "exhibit log" for Leppington is exhibit M. As was the case for Grose Wold, exhibit A contains a photograph of each of the 215 items that were of interest to the police. Further photographs of certain items taken from a video displayed to Mr Ballard when he gave evidence are exhibit S. Chemical analysis - Leppington 40At Leppington police took 138 primary samples, of which 28 were sent to NMI for analysis (T140.05). Exhibit P lists items not sampled by the forensic chemists, and they number 78. The sum of 138 and 78 is 216, not 215 (another small mystery). Exhibit P1 tells me that six items (B36, B38, B40, C04, C42, C56) were sent to DAL for analysis. Exhibit M shows the following destinations for items not destined for NSW Waste: DAL:B36, B38 Case Officer:B40, C42, C56, C60 DNA: B41 (ceramic coffee mug), C58 (cigarette butts) I suspect that the designations "DAL" and "case officer" represent the same phenomenon. C04, which was destined for NSW Waste was a blister pack of "Sudafed" said to contain 60 milligrams each. DAL analysis reveals 13 "Sudafed Sinus and Nasal Decongestants" tablets, each containing 60 milligrams of pseudoephedrine. The items sent for DNA analysis did not return the Accused's DNA but may have identified another or others. 41Appendix 1 to Mr Ballard's report of 3 May 2010 tabulates the items sent to NMI for analysis, the quantity of the chemical exhibit and the result of the analysis. It is this: Item No. Description Quantity Result A20 Brown liquid from 1L reaction flask 50mL 11.6% pseudoephedrine Traces d-MA A24 Purple-red liquid and sludge from 1L reaction flask Not recorded Solid - consistent with red phosphorus Liquid - acidic with iodide ions A43 Red-brown two phase liquid in Berri juice bottle 2.4L 0.13% pseudoephedrine Traces d-MA Also P2P and chlorpheniramine B7 Orange liquid from 250mL vacuum flask 150mL 0.75% pseudoephedrine B8 Orange liquid from 500mL reaction flask 400mL 0.20% pseudoephedrine B17 Pale brown liquid from 3L reaction flask Not recorded 0.15% pseudoephedrine B25 Yellow liquid from 500mL Schott bottle 300mL 0.04% pseudoephedrine 0.08% d-MA C1 Moist purple red substance from glass jar Not recorded Consistent with red phosphorus C16 Pale blue liquid and solid from 500mL Schott bottle 50mL Traces pseudoephedrine C45 Pale brown liquid from 20L Handypail 20L 0.22% pseudoephedrine C47 Brown liquid from plastic drum 50L 0.09% pseudoephedrine C48 Viscous brown liquid from 200L plastic drum 60L 0.1% d,1-MDMA 0.04% d, l MA C55 Dark crystalline solid from 1L glass jar Half full Consistent with iodine C61 Liquid from glass bottle marked "PHOS" 150mL 150mL No prohibited substance detected D5 Dark brown liquid from 5L separating funnel 2.5L 0.31% d,l-MDMA 0.14%d,l-MA E9 Dark brown liquid from modified beer keg 21.4kg gross Traces d,l-MDMA and pseudoephedrine Also chlorpheniramine E10 Dark brown solid and liquid from beer keg (1/2) full 35.4kg gross Traces pseudoephedrine E11 Solid from modified beer keg (3/4 full) 43.4kg gross d-MA, d-amphetamine and d,l-MDMA Also methylamine E13 Dark brown liquid from IBC 520L* Traces of d,l-MDMA E14 Brown liquid from IBC 900L* Traces d,l-MDMA E15 Brown liquid from IBC 730L* Traces d, l-MDMA Also methylamine E16 Brown liquid from post-mix 'keg' 10.4kg 0.53% d,l-MDMA <0.2% d,l-MA E17 Brown liquid from 200L plastic drum 200L Traces d,l-MDMA Also methylamine E18 Brown liquid from large steel vat Small amount Traces d,l-MDMA F1 Scaping of residue from steel vat Not recorded 0.52% pseudoephedrine G1 Brown liquid from plastic drum 25L 0.04% d-MA Traces pseudoephedrine G2 Brown liquid from plastic drum 20L 0.14% pseudoephedrine G3 Brown liquid from plastic drum 20L Traces pseudoephedrine G14 Glass beads and white solid from large PVC pipe condenser Not recorded Pseudoephedrine N.B. All volumes stated are estimates *IBCs had volume graduations marked down one side. The items sent to DAL (excluding C04) I tabulate thus: B36 1 Glad bag of white powder 34.8g paracetamol 1 Glad bag of dark orange sludge 4.94g MA B38 1 Glad zip-lock bag containing 27 tablets 128.9g pseudoephedrine B40 1 glass medicine bottle containing 5 tablets Pseudoephedrine 8.5% purity C56 Plastic bag containing: All contain pseudoephedrine 49.9g of yellow tablets 35..5g of Sudafed tablets 14.4g of white tablets The item which was not tested, C60, is described in exhibit M as a "cardboard box containing [a] plastic container and newspaper." 42The only differences about the manufacture of MA at Grose Wold and Leppington concern the ingredients used in the reflux and the resulting form of MA. At Leppington red phosphorous was being used in place of hypophosphorus acid (T211.43). At Leppington d-,l-MA was found present in traces indicating that that form had been manufactured there. For the manufacture of d-,l-MA the precursor used is P2P (T212.16). Methylamine can also be used for this purpose (T212.46). 43Mercifully, evidence of the process of the manufacture of MDMA was not given in the same detail as it was of MA. There are a number of different precursors used for the manufacture of MDMA. The two predominant chemicals so used are safrole and piperonal (T213.11). If methylamine be used, it will provide the form d-,l- MDMA (T212). Mr Ballard gave this evidence as to how MDMA is made: Q. All right. Can you describe for us, just in details that we can understand, the typical manufacturing process, starting with the safrole or piperonal taking us through to production of MDMA. A. From safrole, the general synthesis route that's taken is via an intermediate compound. It's called MDP2P or ... 3,4-methylenedioxyamphetamine, which is the methylenedioxy equivalent of the P2P, which is used to manufacture the methylamphetamine. There are different synthetic pathways to ... go from the safrole to the MDP2P using different precursor chemicals or different reagents. From that point the MDP2P there are a few different ways that that can be converted to MDMA. From the piperonal, that can be converted to an intermediate product. One of the ways is via an intermediate nitro compound, which is then converted to the - it can either be converted back to the MDP2P or through to MDMA. There are different pathways using different precursors and different reagents for each precursor. The Crown case - Leppington 44In his report concerning Leppington, that of 3 May 2010 (part of exhibit N), par 16, Mr Ballard pointed out that pseudoephedrine could be identified in items A20, A43, B7, B8, B17, B25, C16, C45, C47, E10, F1, G1, G3 and G14. To that list can be added B38, C42 and C56. C55 was analysed to be iodine and, according to Mr Ballard, B35 which was not analysed, had the appearance of iodine. Items A24 and C1 were both analysed as red phosphorous. These are the basic ingredients for the manufacture of MA. Containers were also found which had initially contained methylated spirits (A05, A38, D14, G10, G21) acetone (A09), caustic soda (A26, C53, E03, G07), and hydrochloric acid (A42, B06, C02, C08, C30, D04). 45In par 20, Mr Ballard lists scientific glassware commonly used in the manufacture of both MA and MDMA and in par 21 equipment commonly used in those processes including electrical apparatus, a pH meter, a pressure cooker and a vacuum pump. In his oral evidence Mr Ballard said this: Q. Dealing with methylamphetamine were you able to form any opinion as to, firstly, whether the manufacture of methylamphetamine was capable of being carried out at the Leppington premises? A. Yes, I did. I determined that there were the necessary precursor chemicals, being the pseudoephedrine, the iodine, and red phosphorus, which were present at the location. And there were also suitable vessels and other equipment to carry out that process. The photographic evidence (in exhibit A) of items in situ at Leppington clearly shows that a manufacturing process had been carried on, in particular photos 3 and 4 of area A, photo 6 of room B, photo 8 of bench C, and photo 10 of bench D. Photographic evidence in exhibit S shows the vat F01 (no's 1,2 and 3) with a green plastic bucket beneath it (F02) in which pulverised proprietary medicines had been mixed with methylated spirits, leaving in the bottom of the vat and in the bucket below it a white substance analysed to contain 0.52% pseudoephedrine, clearly a residue of that chemical in the white waste of the fillers and binders of proprietary medicines. The vat could be easily used to decant pseudoephedrine dissolved in methylated spirits from the heavier layer below. Photo no. 12 in exhibit S gives a clear view of a bench tops in area A which at one time had been set up to carry on a chemical process. Photo no.17 in exhibit S gives the a clear view of the bench in room B similarly set up. 46Par 18 of Mr Ballard's report of 3 May 2010 is this: "Analysis of a number of seized items identified the presence of methylamphetamine. Methylamphetamine was identified in the form of d-methylamphetamine (items A20, A43, B25, E11, G1) and d,l-methylamphetamine (items C48, D5, E16). This indicates at least two different methods of methylamphetamine manufacture. More than 85 litres of liquids containing methylamphetamine were seized by police. Additionally, the methylamphetamine was present in low or trace quantities in these items. In my opinion, these items are the waste product from the manufacture of greater than a large commercial quantity (>1 kilogram) of methylamphetamine at 151A Dickson Rd, Leppington." I have concerns about this statement. E11 (43.4kg gross) contains as well as traces of d-MA, traces of d-amphetamine d-,l-MDMA and also of methylamine. It is impermissible in my view to state it is the waste product of the manufacture of d-MA when it contains traces of other drugs and when no attempt has been made to "apportion" what part might be applicable to the manufacture of d-MA. Likewise C48 contains an estimated 0.10% of d-,l-,MDMA but only 0.04% of d-,l-MA. E16 contains 0.53% d-,l-MDMA but less than 0.2% d-,l-, MA. Those waste products clearly contain an admixture of the waste of the manufacture of both MDMA and MA using P2P. One cannot state that it is conclusively the waste product of the manufacture of MA, and no attempt has been made by the Crown to try to "apportion" the waste product between MA and MDMA. The next concern I have is that a large commercial quantity of MA (1kg) is derived from 85 litres of waste product only if one applies the 1:10 ratio which I discussed at [25] above. Applying the preferable 1:100 ratio one only arrives at 850 millilitres of MA. If the density of the waste is the same as water the most that could be found would be 850g of MA i.e. a commercial quantity (250g or more). 47I am prepared to accept that the following items can be accepted beyond reasonable doubt as the product of the manufacture of MA found at Leppington: Item No. Description Quantity Analysis A20 Brown liquid from 1 L reaction flask 50ml Traces of d-MA A43 Red-brown two phase liquid in juice bottle 2.4L Traces of d-MA B25 Yellow liquid from Schott bottle 300ml Traces of d-MA G1 Brown liquid from plastic drum 25L Traces of d-MA The total volume of these liquids is 27.75 litres. Assuming a density equivalent to the density of water that is 27.75kilograms. Applying the ratio 1:100, that equates to 0.2775 kilograms of MA, i.e. slightly more than the commercial quantity of MA (250g). I am persuaded beyond reasonable doubt that a commercial quantity of MA had been manufactured at Leppington. 48I turn now to the issue of MDMA at Leppington. Par 19 of Mr Ballard's report of 3 May 2010 is this: "Analysis of a number of seized items identified the presence of MDMA (items C48, D5, E9, E11, E13, E14, E15, E16, E17, E18). More than 2400 litres of liquids containing MDMA were seized by police. The MDMA was present in low or trace quantities in these items. In my opinion, these items are the waste product from the manufacture of many kilograms of MDMA at 151A Dickson Rd, Leppington." In par 20 of the same report, Mr Ballard pointed out that the largest flask seized at Leppington had a 20 litre capacity. The generation of more than 2,400 litres of liquid MDMA waste equated to more than 120 instances of MDMA manufacture. If small flasks were used there would have been "several hundred" instances of MDMA manufacture. 49However, the Crown presented its case on counts 7 and 7A on two different bases. The first base is that I have just outlined. The second base takes into account evidence given by Daryl Galway and concessions made by Mr Ballard. Items E13, E14 and E15 are IBCs - large, rigid box-shaped plastic containers, themselves contained in large metal mesh boxes and designed to contain 1,000 litres. (T214.20). Each contained MDMA waste, totalling 2,150 litres. In chief, i.e. in the Crown case, Daryl Galway gave this evidence: Q. Did you see anything happening in relation to one or any of those three containers? A. I seen a white tip truck, 8 to probably 8 to between 8 and 12 tonne tip truck that had, to my description, like a water cart on the back of it and he was pumping what was in the back of that into them plastic containers; pallecons or whatever you want to call it. Q. Whereabouts was that happening? A. At Llandilo sorry, at Leppington. Q. Whereabouts on the property at Leppington? A. In front of the shed. Q. Did you speak to the fellow who was doing the pumping? A. No, I didn't, I just seen him. Q. Had you ever seen him before? A. No, I haven't. Q. Have you ever seen him since that occasion? A. No. Q. Did you try and find out what he was doing? A. I just seen he was pumping something out of there into them pallecons and, as I said, I didn't want to know nothing about it so I didn't ask questions. HIS HONOUR Q. Just help me, Mr Galway. You said it was a 10 tonne, what sort of truck was it? A. It was a tip truck. Q. A tip truck, and what did you ... A. Between 8 and 12 tonne tip truck. Q. A white tip truck, I think? A. Yes. It was a big one, yep. Q. Carting a water cart. The pumping was what, from the cart into these square. A. Into these square tanks. Q. Were there any marking on the tip truck itself? A. It was plain white. Q. What about the water cart? A. It was just a rusty looking tank that was on there. CROWN PROSECUTOR Q. Were you able to notice anything about the liquid that was being pumped or tipped? A. I just sort of seen it going in and that was about it cause where he had it coming out of, the tank, it was a clear tube and it just looked like mud going through there. Q. By reference to when your twins were born are you able to say when you saw this, before or after? A. It was probably way after, it might have been ... I'm just not sure. Q. Did you ever speak to your brother, Les, about seeing this brown liquid being pumped? A. No, I didn't speak to him about that. On the same issue Mr Ballard said this in chief: Q. Dealing with those large quantities of waste first of all particularly in the IBCs. Do they necessarily represent the results of manufacturing carried on at Leppington or could they be equally consistent with containing waste material that may have been the product or by-product of manufacture at some other location? A. The IBCs themselves I can't tell. I can't determine whether it was added to the IBCs there or brought in. There was a large steel vat near the IBCs, E18, which contained a small amount of a brown liquid. It contained traces of MDMA in that liquid and that large steel vat. I'm not sure, it would, just an estimate, probably hold a couple of thousand litres of liquid if it was full, but in the side of that vat towards the base there was a hole which was connected to on the outside to piping through to a pump, like a water pump, and then that had further piping coming off that pump. It's possible that that could have been brought from another location too, but that's another item like a storage item which had at least somewhat I believe to be MDMA reaction waste in it and could be used to pump liquid into the IBCs from that vat with the attached pump. A little later he said this: Q. Now, I've asked you about the IBCs containing the liquid based with traces of MDMA and whether that I think you've told us that could have been equally consistent with being transported from another location or the product of manufacture at that location? A. Yes. Bearing in mind the standard of proof required, I cannot take the waste in the IBCs into account in trying to determine the amount of MDMA that may have been manufactured at Leppington. After all, Daryl Galway referred to the IBCs using the plural number when describing the pumping process. It had to involve two of the three IBCs and could well have involved all three. 50Hence Mr Crown, in addresses, sought to support these counts with the following items. Item Description Quantity Analysis C48 Viscous brown liquid from 200L plastic drum. 60L 0.1%d,l MDMA and 0.04% d-l MA D05 Dark brown liquid from 5L separating funnel 2.5L 0.31% d,l MDMA and 0.14% d,l MA E09 Dark brown liquid from modified beer keg. 21.4kg Traces of d,l, MDMA E11 Solid from modified beer keg 43.4kg d-MA, d- amphetamine, d-l MDMA, methylene E16 Brown liquid from post-mix keg 10.4kg 0.53% d-l MDMA and less than 0.2% MA E17 Brown liquid from 200L plastic drum 200L Traces of d,l MDMA E18 Brown liquid from large steel vat "small amount" Traces of MDMA The problem which arises is, again, of admixture of wastes. The only items which contain solely MDMA waste are E09, E17 and E18. Assuming that the density of the waste is the same density as of water, 200 litres equals 200 kilograms (T204.01). The total weight of E09 and E17 is, therefore, 221.4 kilograms. Applying the 1:100 ratio that gives a weight of MDMA of 2.214 kilograms, which is much greater than the large commercial quantity of that drug (500 grams) The waste could be much denser than water but one would not assume it to be double the density. That conforms with Mr Ballard's evidence at T204. 51Mr Ballard said in his evidence that none of the precursors or reagents used in the manufacture of MDMA were located at Leppington (T213.47) However, as I have already pointed out, all the necessary equipment was. I am persuaded beyond reasonable doubt that a large commercial quantity of MDMA was manufactured at Leppington, about 2 kilograms of it, as I have just found. It defies commonsense that Leppington was a mere storage area for MDMA waste from elsewhere. One would have expected all of it to be in the IBCs. The credibility of Daryl Galway 52Before going on to consider the defence case, Daryl Galway's credibility must be considered, especially in light of the direction I have considered concerning the evidence of those reasonably supposed to have been criminally concerned in the events giving rise to these proceedings. Of his own memory Daryl said this: "My memory, my memory sometimes is just totally a mess. Like, dates, figures, times, everything else, I just cannot remember sometimes. It's bad enough trying to remember me kids' birthdays, let alone me own." Shortly after saying that, he admitted to have had an addiction to amphetamine ("Speed") and gave this evidence: Q. To the best of your understanding of yourself has that had an effect on your ability to remember things as well? A. I think it's had an effect on just about everything. In cross-examination he admitted that the Accused was his younger brother but was unsure how much younger (T83). 53Earlier, at [34] I pointed out a discrepancy between what Daryl told me on 26 September 2011 (D2) and what was recorded by Zahra DCJ as to what he told police on 4 June 2009 as to when he commenced to rent the chicken shed. I also pointed out that he could not specify in his evidence-in-chief when it was that he offered his brother the use of the shed for storage, but I dated it to the time when the Accused was moving from Llandilo back to Grose Wold (late 2006 to early 2007). Zahra DCJ records Daryl telling the police on 4 June 2009 that it was "one or two weeks after he started renting the shed, [that] he provided his brother ... with keys to the shed." This, of course, cannot be used against the Accused, but it can be seen as an inconsistency of Daryl's making. He was cross-examined about this. At T86.47 this evidence was given: Q. How long ago do you say that he moved items into the shed after you rented the shed, you're probably not able to remember? A. It may have been 6 months, it may have been 12 months, I, I don't know. He was then taken to the ERISP he gave to the police on 4 June 2009 and this evidence was given: Q. You were asked the question at 209: "Okay, so how long after you started renting the shed did Les start moving items to the shed?" You said, "Sort of within a week or two." Does that now help you remember, having read that question and your answer, when it was that Les started moving items into the chicken shed? A. Yeah, he, yes. Q. When you say, "yeah", what does it help you remember now? A. Well, it's just sort of when he started moving stuff into the shed. Q. Was that within a week or two of the discussion you had with him after you rented the shed? A. Yes. This inconsistency is not trivial. There is a substantial period of time between July and August 2005 and late 2006, early 2007, a period of nearly one and a half years. 54Another inconsistency concerns the gate across the driveway which gave access to the chicken shed. Daryl said in chief that the Accused was free to come and go from the shed, as he had a key to it. This evidence was then given: Q. I was asking you about whether you saw Les at the shed at Leppington. A. Yes. Q. You told us that on occasion you did. A. Yes. Q. I think you agreed that he could come and go without any reference to you because he had a key to the door of the shed. A. Yeah, because the driveway was right between two houses and there was a public thoroughfare because the people that were renting the market garden at the back, they were using the driveway as well, everyone was using the driveway. Q. Did the driveway have a gate on it? A. It had a gate, yes. Q. Was the gate ever locked? A. No. Q. Never. A. It was at certain times, after 9 o'clock. Nine O'clock is a clear reference to 9pm. Contrast this evidence with the evidence of police executing the warrant, who had to cut through a large padlock to open the locked gate at 10am, as I pointed out at [35] above. 55Another and more notable inconsistency between the evidence of Daryl and the police concerns the ease of access to the shed. I quoted in [35] above the evidence of DSC Reay and the DSC Mackay as to the inability of the police to enter the shed without the key. Contrast that evidence with this: Q. And you've told us that Les had a key to the shed, so is this the case, as far as you were concerned, he could come and go as he pleased? A. Well, anyone could come and go, cause if they walked around the side of the shed, there was three sheets of tin missing off the side of the shed, and all they would have had to done is just walk through. Not necessarily have a key to unlock the door. Q. But nonetheless, you had a key and kept it locked? A. Yes. For me own peace of mind. HIS HONOUR Q. Did you ever repair those holes in the shed? A. No. The shed was that old, it was just starting to fall apart. Q. If somebody had repaired it, it wasn't you, is that right? A. I didn't repair it, no. CROWN PROSECUTOR Q. But it wasn't in that state, as of May 2009, was it? A. What was that, sorry? Q. The shed wasn't in that state as of May of 2009, was it? A. It was like that from the day that I started paying rent on the shed. The desire of Daryl to downplay the security of the shed and to highlight the ease with which it could be entered I find sinister, and consistent with someone who was criminally concerned. 56The next area in which I find myself unable to accept Daryl's evidence concerns smells. At [14] above, I described a smell noticed by police executing the search warrant at Grose Wold that was detected in the shed at that site. At [36] above I described the lack of any smell noticed by then DSC Mackay when the search warrant was executed at Leppington. It is to be borne in mind that in 2002 Daryl was arrested and charged with manufacturing a prohibited drug at Llandilo and multiple firearm offences. For that he appeared before this Court sitting at Penrith in April 2004 and was sentenced to imprisonment for 2 years and 6 months, as recorded at [33] above. In cross-examination Daryl said this: Q. You pleaded guilty, didn't you, at the Penrith District Court, in relation to manufacturing a prohibited drug, I think you pleaded guilty in or about April 2004? A. I've got no idea. Q. I think you can remember that you pleaded guilty to that offence? A. Yes, that's what I was sent to gaol for. You don't forget that. The last sentence of the last answer is something which I can wholly accept. Yet the first answer recorded does not sound truthful. Release on parole on 24 June 2005 after a non-parole period of 1 year and 3 months indicates that the sentence was passed in late April 2004 (but obviously not on 25 April 2005). The commencement date of Daryl's sentence may have been the result of backdating to account for some pre-sentence custody. Earlier, Daryl said in chief: Q. 2002 that you were arrested. A. Mm hmm. Q. All right. Was it amphetamine based prohibited drugs? A. I assume it was. The last answer is implausible: He must have known what he was manufacturing that led to his arrest and sentencing. He had been, and probably was, at that time addicted to amphetamine. He would have known the smell of the reflux involved in manufacturing amphetamine. At T70 he admitted noticing a "stinky putrid smell" in 2002. The evidence soon continued thus: Q. So my question is: in what circumstances in 2002 had you smelt that putrid smell? A. I can't recall on that, in 2002, I have no idea. HIS HONOUR Q. Let's look at this way, Mr Galway: had you smelt it when you went to the Easter Show when you were in the cattle pavilion? A. Yes. Q. Had you smelt it at a residence at Llandilo? A. No. CROWN PROSECUTOR Q. Just have another read of paragraph 17, just to yourself, if you would. Have you read that, Mr Galway? A. Yes. Q. Thank you. You've told us that you'd smelt this particular putrid smell back in 2002? A. Yes. Q. 2002 was the date of your arrest for the offence in relation to manufacturing of prohibited drugs? A. Yes. Q. What were the circumstances in which you'd smelt this particular putrid smell that you smelt at Grose Wold back in 2002? A. I just, I can't recall. Q. Was it anything to do with the circumstances that saw you arrested for the manufacture of prohibited drugs? A. I assume so. The first, penultimate and last answers just quoted I find implausible, an attempt by Daryl to minimise his earlier criminal activity. 57The Crown was seeking to adduce from Daryl evidence that he had smelt this "stinky putrid smell" both at the Accused's shed at Grose Wold and emanating from the chicken shed at Leppington. At T66.04 Daryl said there were "strange smells" at Grose Wold - smells which, on the Crown case, ought not to have been "strange" to Daryl. After being permitted to refresh his memory from a statement, Daryl said that he smelt the "stinky, putrid smell" at Grose Wold (T70). At T76, Mr Crown turned Daryl's attention to Leppington: Q. You told us about the putrid smell that you smelt at Grose Wold on the one time you went into the shed and told us about your observations there. A. Yeah. Q. Did you ever smell that smell from the shed at Leppington? A. It mightn't have been the smell but it was a similar smell. Q. Did you ever go and have a look to see what, if anything, was going on when you smelt the similar smell? A. No, I didn't. Q. About how many times do you think might have smelt that similar smell? A. I can't recall, it may have been two, three times, it may have been one time, I just can't recall. Q. On those occasions, be they two or three or however many, that you smelt the similar smell, do you have any recollection about whether Les was at the Leppington shed at those times? A. Well I physically didn't see him with me own two eyes there at certain times, he may have been there, he may not have been there. HIS HONOUR Q. Did you ever see his car there? A. I've seen his car there several occasions. CROWN PROSECUTOR Q. On any of these occasions when you smelt this similar smell did you see Les's car? A. Yes. In cross-examination, Daryl said that when he first entered the chicken shed, i.e. when he first rented in, there was a "disgusting smell" in the chicken shed (T85.36). At T94 he went on to say this: Q. Well you said, I think, that you detected a smell or something in the shed or coming from the shed. Did you say that earlier? A. Yes. Q. Well could that smell have been something to do with the shed itself rather than the smell that you recognised from an earlier time at Grose Wold? HIS HONOUR: At Llandilo I think you meant to say. WENDLER Q. Or Llandilo. A. It could have been coming from the actual shed itself because we may have had rain and the floor may have been wet, the smell might have been coming from there or it may have been the previous smell that I had detected. Q. Wasn't the position this, that when it rained the smell coming from the industrial chicken shed was multiplied, so to speak, on those occasions; that it was very strong and overpowering? A. Yes, it was, yes. Q. You could smell it in the house, couldn't you? A. You could smell it right down to the front driveway. 58The question of odours from the chicken shed was the first subject in re-examination: Q. Was the shed structure at Grose Wold a chicken shed structure like the one at Leppington? A. No, it wasn't. Q. The smell you smelt there was different from the chicken shed smell that you occasionally smelt at Leppington, wasn't it? A. Yes, it was, yes. Q. If I call it the chicken shed smell do you understand what I'm talking about, that smell you've been describing that was stronger after it rained at Leppington? A. Yep. Q. That was a smell that you smelt from time to time whilst you were living at Leppington, wasn't it? A. Sometimes it was in the summer months it was very constant. It was because you had market gardens all around us and fertilising and everything else it may have been all that in the summer months, the winter months with rain and everything, it may have been a confusing Q. Sure. So this is the case: in the summer months sometimes the chicken shed smell was stronger because of the heat? A. Yes. Q. After rain the chicken shed smell might become stronger because of the rain? A. Yes, yes. Q. It was a smell that you were quite used to whilst you were living at Leppington? A. I wouldn't say I was quite used to it. Q. I'm not suggesting that you liked it, but you became familiar with it from time to time? A. Yes. Q. Because you smelt it not regularly but on and off, depending on the weather conditions? A. Yes. Q. It was a different smell from the smell you smelt at Grose Wold on that one occasion? A. Yes. Q. The smell you smelt coming from Leppington on those small number of occasions you've told us about was a smell you associated with Grose Wold, wasn't it? A. Yes. Q. Not to say there wasn't other chicken and fertiliser smells around from time to time? A. Yes. Q. Because that was the area in which your property at Leppington was located, wasn't it? A. With all the market gardens and that around and produce well, market gardens and everything so. At [36] I accepted the evidence of the DSC Mackay that there was no "chicken" smell coming from the shed in either dry or wet weather, but clearly May is not in summer. Yet Daryl asks me to believe that there was such a "chemical smell" arising from the manufacture of amphetamine, and also other "agricultural" smells that arose at Leppington. I have no confidence whatever in the reliability of this evidence. I am unable to accept any of his evidence beyond reasonable doubt unless there be adequate corroboration. The relationship of the Accused and Mr Alan Douglas 59To understand the defence case it is necessary to know about the relationship of the Accused and Mr Alan Douglas. The evidence about that before me comes from the Accused. I have heard nothing from Mr Douglas because he died whilst the Accused was in custody between 27 November 2008 and 11 May 2009. (T353.16) The Accused had known Alan Douglas ("Alan") for 20 years prior to his death (T353.21) when the Accused described himself as being still "a kid". Initially the relationship was a friendship (T353.38) but turned into "a friendship you couldn't get out of" (T353.42). In his ERISP, the Accused referred to Alan as "the old fella" and described him as "one of the biggest and best 'bullshitters' God ever put on this earth" (A151). He was not "the sort of person you could say 'no' to" (T353.02) because he was a "bad man" (T335.06). Alan was associated with biker gangs: Q. On your understanding, was Alan associated with any other persons who you were fearful of? A. Just about every club that you could imagine. Q. When you say, "club" what... A. Bikies. He'd, ... go from one to the next, to the next, to the next, and you know like, part ... of the reason my firewood yard sort of closed down was these bikies were extorting me. Do you know what I mean? And ... Q. When you say these bikies were engaging in extortion how did that come about? A. Through ... Alan, obviously ... well, it took me years and years to work this out, like, that's just how it was. It took me years to find it out and then I'm slowly finding things out, and like I said he's a bad man. Q. Did it occur to you to go to the police for instance, to report Alan? A. It's not an option, it's not an option. Q. Why? A. I've got family. I've got kids. I've got children. Do you know what I mean? Like, and, like, and not just to one mum either. I've got a few different kids to different, like mums, and ...the police can't protect them, I'll tell you that now. You know, like ...I've seen what these people do. It's not good. In 2004, the Accused was incarcerated "for something" and Alan suspected that the Accused had either given information about him to the police or was going to give information about him to the police and that led, firstly, to the Accused's being bashed in gaol and on his release, again in 2004, to Alan's shooting him in the leg (T341.50, T347.43, T392.01). In the bashings, the Accused was stabbed twice, had his jaw broken, lost teeth and suffered a perforated eardrum. In cross-examination the Accused admitted that he was under pressure "on and off", for a long time prior to Alan's death and even after that from his relatives and members of biker clubs. The defence case: 60As far as Leppington is concerned the defence case is straightforward: the Accused had nothing to do with the manufacture of prohibited drugs there. The Accused merely used the chicken shed for storage purposes. The Accused said that "at least a month to two months before" 27 November 2008, he was approached by Daryl who told him that there were things in the chicken shed at Leppington that he wanted removed, and Daryl was unable to contact Alan to have them removed, so the Accused decided to contact Alan to get those objects removed. However Alan was in hospital at this time and the Accused could only contact Alan after his discharge. It took the Accused almost a month to make contact with Alan (T334). Later the Accused said that Daryl went to see the accused, Daryl said, "there's something big going on over there, I want it out of here. I don't want it there." The Accused then went with Daryl to Leppington to have "a look." He then gave this evidence (T344): Q. So when you say you went over with him and had a look what did you see at that stage? A. Basically what we've seen on the video, you know what I mean. Like when I've opened the door, right, the first thing that got me was the big bulk container things, you know what I mean, and then like to decide there was in my eyes it looks like it was finished, it was done, it was over and done with. Looked like rubbish. Q. Was that the only time that you saw that arrangement? A. It's the only time, yeah. And that's like I said and then I attempted to find Alan right. Like I did find out that he had been in hospital and it wasn't like it would had to have been six weeks after Daryl first approached me to the time that I actually caught up with Alan and that was only like a couple of weeks before the raid at Grose Wold. 61The defence case for the Grose Wold charges is different. The Accused said that on Friday 21 November 2008, Alan Douglas drove onto the Grose Wold property in a blue Holden HR utility truck, heavily laden with drums containing, in essence, most of what the police identified as items involved in the manufacture of MA that were found at Grose Wold on Thursday 27 November 2008. The tyres of the utility truck were scraping against the wheel housings and had "almost worn through the wall of the tyres" and the truck needed to be "fixed". The Accused is a panel beater/painter by trade (T331.23) and has some familiarity with motor vehicles, which he obviously collected. The Accused did not have any wheels at Grose Wold to fix the truck. He obtained wheels but "the dish on them was wrong" and he had to get spacer plates made for the truck. They were being made by Tempe Tyres and the Accused "was supposed to actually pick up the spacer plates on the Friday" i.e. the 28 November 2008. To do what needed to be done to the truck, it was necessary to unload the contents onto the Grose Wold property. 62The Accused initially said that the contents of the truck came from Leppington but his further evidence made it clear that he merely assumed that it came from Leppington, in response to his request to Alan to move "gear" from the chicken shed at Leppington. In cross-examination the Accused said that Alan turned up at Grose Wold "unannounced" and then gave this evidence: Q. What did you observe about this equipment on the back of the ute? A. What did you mean, like? Q. Did you recognise what any of it was? A. Well, of course the stuff in what we're seeing like the 44 gallon drum, and there was a couple of other drums there was boxes, like there was probably half a dozen boxes which contained glassware and stuff. Q. But it was contained in boxes the glassware? A. To start with, yes, yeah, yeah. Some things had tipped over and, like fallen out. Q. Did Alan tell you where he was taking this material, or proposing to take it? A. To his brother's, yeah. Q. To his brothers? A. Yeah. Q. Whereabouts was that did he say? A. I believe Mudgee. The Accused believed that the unloading of the truck was only a temporary measure, until the truck could be repaired and Alan continue on his journey to Mudgee. 63Alan Douglas then asked the Accused if he could use the shed at Grose Wold "to extract some pseudoephedrine" (T333.49; T334.48). This was a request to which the Accused believed he could not say "no". This evidence was then given: Q. He said, "I want to extract some pseudoephedrine in your shed" and you agreed to that? A. Yep, while I fixed the car, until I fixed the car. On Friday 21 November, the Accused and Alan merely unloaded the truck. Alan then made a telephone call and someone came and picked him up. On Saturday 22 November Alan returned with two other men and "they tinkered in and out of the shed all day sort of thing." Until the evening of Wednesday 26 November, Alan stayed at the Accused's house, sleeping overnight on the lounge. On the Saturday the two other men left. On the Sunday one man turned up and that man and Alan "tinkered around in the shed." The man who attended on the Sunday was known as "Dave" and was tall and skinny (T335). On the following Monday, Tuesday and Wednesday two men turned up each day to work with Alan (T364.10). On none of these days, i.e. 21 to 26 November 2008 was the Accused's daughter Teeka Cole-Galway present at the Grose Wold property. 64On Wednesday 26 November, the Accused worked in his trade at a panel beating shop in Penrith. He finished there early and then drove to Colo High School to pick up his daughter whom he drove to her mother's house at Lethbridge Park (which the Accused described as Mount Druitt) (T365.04). He then visited some friends and had a couple of bourbons and then went home (T390.32). He arrived home at probably 6.30pm or 7pm (T366.32). He found Alan and two men in his kitchen extracting pseudoephedrine (T336.37; T366.40 to T367.18). Alan and the Accused argued with one of the other men, the Accused became irate and the argument became heated. The Accused went into his bedroom, took his Glock pistol out of a drawer, loaded it and returned to the kitchen and told the other three to "get the fuck out of my house" (T336.47). The three men complied with this demand. 65In addition to what was brought to Grose Wold in the utility truck, the men who attended each day would bring other items such as methylated spirits, "tins" (T370.02) and a cardboard box with the label "Oxford" containing glass and plastic containers (T376.03). 66Sometime after the Accused ejected from his property those who had trespassed into his kitchen, he received a telephone call or text message from Ms Lisa Bullock who had stored with the Accused a child's bed in the form of a racing car, which she wish to retrieve. So that she did not see what had been happening in the kitchen, the Accused moved some equipment from the kitchen bench onto the floor of the dining area. As Ms Bullock was coming up the Accused's driveway, he grabbed a bag and a box of pills and ran into his bedroom with them, where they were discovered by police on the following day, despite the fact that the Accused expected that Ms Bullock would stay overnight with him if he asked her to do so, which is, of course, what she did. The Accused admitted that he was acting under the influence of MA at the time, which may have affected his judgment (T392.23). The confrontation with the three men in the kitchen was "a hour ... [m]aybe two hours" prior to Ms Bullock's making contact with the Accused (T392.36). She arrived "a good hour and a half" later (T395.16), around midnight. The Accused knew that Alan Douglas would return but he did not know when (T337.25; T397.24). 67As I noted in [13] above, the Accused was released from custody on bail, on probably 11 May 2009. He was required to report daily to police at Windsor Police Station. He did so between 12 May and 20 May 2009, the day when the search warrant was executed at Leppington. The Accused breached his bail on 21 May 2009 when a friend of his produced a doctor's certificate to the Windsor police and the Accused fled to the Central Coast where he lived under an alias, Brian Garrity, until he was arrested by police on HueHue Road, Wyee at 11.30am on 27 October 2011. The Crown did not formally submit that this flight was because of a consciousness of guilt. The defence case was that the Accused was fleeing not from the police and the administration of justice but from the associates of the late Alan Douglas. The Accused last reported to the Windsor police at 6.30pm on 20 May 2009. The Accused's evidence as to the days and dates is sometimes erratic and sometimes vague. What I am about to describe occurred, if it occurred, on Thursday 21 May 2009. 68On the morning of that day police went to the Accused's house at Grose Wold "just checking in to see that I was going to be there and I told them, 'yes'." That afternoon a similar car arrived at the Accused's front gate which was locked. He assumed it was the police and he went out to meet the new visitors. The Accused's evidence (at T344; 345) continued thus: "I'm thinking, you know, what do they want. Well when I get down there two males hop out of the car, both with guns, telling me that I owe them money, right, because the stuff that was taken from me in Grose, right, belonged to them. Well next thing he pulls the trigger, right. Well I shit myself. It wasn't loaded. He told me they'd be back and next time they come back if I didn't have the money or some drugs or whatever, right, the next time it will be loaded." The Accused said that on that day he had "dabbled in a bit of drugs" and was "a bit scattered." This encounter caused the Accused to visit a medical practitioner: "I went to the doctor's, right, and I told him, 'Look I'm having really bad troubles in my head and that,' you know what I mean. Like basically told him, you know, well I've got people wanting to fucking kill me and blah, blah, blah and I needed to just get some time away, I needed to get my head clear so I could start to think and, you know, like do things properly. Well I went and got the certificate. With the certificate I went to a friend, asked them could they hand it in. With that I ended up going like that same day I went to the coast." The vehicle in which the two males arrived at the Accused's house was "like a late model Magna". The Accused gave a short description of each man (T346.34). This evidence was then given: Q. All right, and as best your able to remember what was the, in general terms, what did they say to you? A. Basically that like what I'd been pinched with, right, they owned, it belonged to them, right. They wanted $100,000 from me, right, or they wanted their stuff back. Q. What did you say? A. What could I say, do you know what I mean? Like I've got two blokes standing there with guns at me, you know what I mean. Like ... Q. Were they both armed or just ... A. Both. Both. Only one pulled the trigger, but. Q. What was the upshot of the conversation? A. Well they told me they'd be back in a couple more days, right, and with that what was I going to do? I didn't know what to do. I couldn't give them back stuff that the police had already took away from me. Q. What sort of effect did that have on you, that particular episode? A. Well it brought back a little bit of the time when Alan shot me, you know what I mean, like a bit of flashbacks from that, but I suppose the big part of it was I was concerned for my life and my safety, you know what I mean. Like I was under the influence of drugs as well, you know what I mean, that didn't help me any at all, you know. Q. How long did this episode take between you and these two men? A. Not 5 minutes. Not even 5 minutes. Like it took me longer to walk to the gate than what it did for the episode to, you know. Like to me it was more like a scare thing, you know what I mean. Like one, they knew where I lived. Number two, right, I knew what club they were from. Q. Sorry, what club? What are you referring to? A. I'd rather like motorcycle club, yeah, and I'd rather not bring names into it, you know. This episode has been raised on two or three occasions with the Accused whilst he has been in custody and he has been bashed a few times in Long Bay Gaol (T347). In cross-examination the Accused said this: HIS HONOUR Q. You weren't running from the police, you were running from bikies; is that right? A. Correct, yes. I even said that in the interview, right, to Chris Reay. It weren't the police that I was running from. I know the police can't hurt me. All they can do is they can lock me up. All right, that hurts me, right, but at the end of the day beyond that they can't hurt me. These other people can hurt me. Simple. 69I have quoted this evidence at some length because it does explain many things said by the Accused in his ERISP (exhibit T): A40 to A45, A48 to A63, A113, A137 to A165. The credibility of the Accused: 70I found the Accused to be a somewhat exasperating witness. The number of times he answered questions in whole or in part with "you know what I mean" was tedious and was done sometimes to avoid making a frank concession or admission. Sometimes the Accused contradicted himself, but that occurred often because he said the first thing that occurred to him, to extricate himself, but later was more frank. On a number of occasions he said things which were inconsistent with the physical evidence but that often only indicated that he was not tailoring his evidence to fit with the Crown case, which is what many accused do. Some examples should suffice. As to the phenomenon of seeking to avoid admitting the obvious, consider this evidence in cross-examination: Q. Alan was associated with bikie gangs, wasn't he? A. On and on. Q. Alan manufactured drugs for bikie gangs, didn't he? A. I didn't know that, no. Q. He was a cook, wasn't he? A. People just say a lot of things, you know, I've never, I've never seen him done it, you know. HIS HONOUR Q. Your evidence was he was cooking at Grose Wold when you were there? A. Extracting pseudo that's all I know of. CROWN PROSECUTOR Q. For what purpose? A. What do you mean for what purpose? Q. What purpose, did you understand, he was extracting pseudoephedrine? A. Well, it's obvious isn't it what do you extract pseudo for you know? Q. Can you tell us? A. What do you mean like? Q. You knew, didn't you, why he was extracting pseudo? A. That he was I knew he was extracting pseudoephedrine, yes. Q. But you knew not only that, but you knew why he was extracting pseudoephedrine? A. Well, yes it's obvious, you know. Q. It's obvious because it's part of the process to manufacture prohibited drugs? A. Well yeah. Q. Methylamphetamine, or whatever? A. Yep. Q. You knew that, didn't you? A. No. I ... when I ... you're making out here, now, right ... that I'm involved in this knowing of it, right? But I'll tell you now, right ... pseudoephedrine is extracted for the use of methylamphetamine, okay right? I've read it. I've done lots of research on it, right? I've never done it, okay? Now, as far pseudo being extracted, yes, I know knew it was happening, so yes. Q. In fairness to you let's take it one question or one step at a time? A. All right, yep. Q. So firstly you agreed with the judge that you told us, of what you say, you knew Alan Douglas was extracting pseudoephedrine at Grose Wold? A. Correct. Q. On this occasion that he came with the ute full of stuff? A. Correct. Q. You knew that because he told you that's what he was doing? A. That's right. Q. All right next step. You knew the reason he was extracting pseudoephedrine, didn't you? A. Well, yes, okay, yep, yep. Q. Because as you say, it's obvious you don't just do it for the fun of it, it's part of the process to manufacturing prohibited drugs, as you knew? A. Well, it's obvious, yes. Q. Okay, so at the time, just following your evidence that Alan was using your shed and kitchen was it to extract pseudoephedrine? A. I only agreed to the shed, right? I've come home and found him in the kitchen, and that's when I jacked up, you know. Q. You understood he was only using the shed to extract pseudoephedrine? A. Yes. Q. But you found out he also had been using the kitchen for the same purpose? A. Yes. Q. All right, so let's go with that when those things were happening, to your knowledge in the shed, you knew it was part of the process of manufacturing methylamphetamine? A. But it wasn't being manufactured there. All right, yes, it is part of a process of course it is. Q. And you know that's why Alan was doing it? A. Of course well, I can't say that's why he was doing it. He could have just been extracting pseudo for all I knew. Like, I can't ... say that he was going to manufacture. We can sit here and assume that he was going to but, like, he ... didn't actually tell me that's what he was going to do with it. Q. We can sit here and talk around in circles A. Of course. Q. Or we can face the obvious, can't we Mr Galway? A. All right, go, go. 71On the issue of contradictions, consider this evidence at T334.24: Q. Well, did you ever, yourself see it, the scientific and chemical apparatus in the shed at Leppington? A. No. But compare that with the evidence I cited in [60] above from T344 in which he admitted to seeing at Leppington what can be seen in the site-assessment video (exhibit L). In the same vein is his assertion at T349.43 that he did not remember touching anything when he was at Leppington, although he admitted he could have (D9) whereas on D10 he said this at T430.25: Q. Is that something that you recall or something that you assume? A. The items ... I can't recall, but I do ... remember touching things, yes. A little later the Accused "supposed" that the reason he may have touched something was that he was looking "for a bit of drugs at the time." It must be remembered that the Accused would have been well aware that police detected his fingerprints on four items (A16, C38, A35 and D14) at Leppington. 72As to evidence inconsistent with the physical facts which does not indicate tailoring evidence to fit the Crown case, consider this evidence: Q. If you go to A11, it's photograph A11 at tab A in exhibit A? A. Yep. Q. You will see the glass blender that I've just referred to. A. Yep. Q. Now that was located in the kitchen area. Do you have that open, A11? A. Yep. Q. That your fingerprints were detected on that item. So what's your explanation as to how your fingerprints would have arrived on that item? A. It would have been originally sitting on the kitchen bench, right, and I just got everything that I sort of could see from there just moved it into the dining room part. The Accused was told by his counsel that the glass blender jug was found in the kitchen (which it was, on the bench) but nevertheless said that he moved it to the dining area, which he clearly did not. Nevertheless, it does not mean that he did not touch it in the process of moving other items from the kitchen bench to the dining area. I have already pointed out that the police found a bag of tablets under the Accused's bed and a box of tablets in his bedside drawer. Nevertheless he said this in cross-examination: A. Yes. There was a bag and a box and I had them in my hand when Lisa turned up and, like, I was actually walking over toward the door, you know what I mean, and that's when I went to the bedroom and I thought I threw them in my bedroom drawer. Q. Did you put any under the bed? A. I don't think so, no. I don't know. This inconsistency is of no moment in the case at all, but clearly the Accused was not trying to tailor his evidence to fit the Crown case and, clearly, his recollection of some events (and of the Crown brief) is faulty. 73A large number of minor things said by the Accused in evidence sounded truthful to me. Commencing at T368.09 Mr Crown played the site-assessment video taken at Grose Wold (exhibit B) to the Accused and asked him questions about it. At T374, Mr Crown identified on the video E08, a 30cm Buchner funnel, and the Accused volunteered (at T374.26) that he picked it up and that is one of the fourteen items on which police identified the Accused's fingerprints. Bearing in mind what I have already said about the Accused's evidence, it is highly unlikely that he could retain in his memory a picture of each of the fourteen items on which his fingerprints were found and where the item originally was, before police removed items ex situ. Another instance of this is his identifying the "Oxford" box that I discussed in [65] above. I also found this evidence about the refrigerator in the shed to sound truthful: Q. Mr Galway, we've just had a look through an old fridge/freezer combination that was in the shed; correct? A. Mm hmm. Q. Was that brought there by Mr Douglas or was that in the shed? A. That was already there. Q. That was already there? A. Yeah. There's items in there that weren't in there cause the fridge was empty. I don't even think it worked, you know what I mean. Q. Was it plugged in? A. I don't know. 74Later, the Accused was taken to photographs in exhibit A of the Grose Wold items. He gave evidence about item G08: Q. G08 the photograph there G08 have you got that? Now, that's described in the exhibit log as being "1 glass dish containing an amount of brown crystal substance; 1 kitchen knife, and 2 filter papers". So I know from that you can see the end of a piece of cutlery we know it's a knife, but did you have cutlery like that at your place? A. Not at all, no. Q. So this would have been something that was brought there? A. Yep. I had Wiltshire brand cutlery. He also denied that a knife shown in item G28 was one of his. These answers were plausible. In the same category I place this evidence concerning disposable gloves: Q. The police discovered some gloves and packets of Ansell brand disposable gloves? A. Yep. Q. Did you bring those to the property? Did you use those? A. Depends where they were found. Because if they were found on the kitchen table, yes, I did I did tattooing as well and yeah, if they were found in around the kitchen table area, they'd be mine, you know. Q. All right, but if they were found in the shed area? A. Not mine. Q. It's not an area that you would have A. No. Q. ...cause to wear any gloves? A. No. The Accused was quite prepared to make an admission and provide a credible confession, which was not challenged by the Crown. At T387, the Accused volunteered that a blue drum on the back of Alan's truck had overturned and bottles and other items came out of it and he recalled some items have sticky-tape around the lids. This, again, sounded plausible and was not challenged. 75In summary, I am prepared to accept the Accused's evidence on a number of issues as, at least, raising a reasonable doubt. On some issues I do not accept what he said. I shall make my findings clear when discussing the individual counts in the indictment. Counts 1 and 1A 76I accept the Accused's evidence that Alan Douglas arrived unannounced at Grose Wold on Friday 21 November 2008 in a blue Holden HR utility truck laden with most of the items discovered by police on Thursday 27 November 2008. There is some objective corroboration for the Accused's evidence, which goes further than I have already mentioned. The further considerations and objective evidence are: (a) The utility truck can be seen in the Accused's backyard and the general photographs of the property in exhibit A, no's 8 and 9 (see also T402). (b) The Accused gave some evidence as to what happened to the truck after the police executed the search warrant and he was not challenged by the Crown on this evidence: Q. But Alan's ute had bad what tyres or wheels? A. The wheels were too wide. Like, the tyres were too wide they were scrubbing on the guard on the outside of the guard. And the springs were, like they were sagged from the weight. Q. Was that because the ute was so heavily laden? A. Yes. Q. Did you fix Alan's ute? A. Not properly, no like, when the police when the police raided, right, I still hadn't got the spacers for ... the wheel, like, and they can even tell you themself when they drove the car away the wheel fell off. Q. So Alan's ute was still at the property? A. Yes, yep. Well, it turns out it was stolen. Let's go with that? Later this evidence was given, the questions based on the premise that the truck was still in situ on 28 November 2008 and that it was driven away by the police: Q. On 28 November the ute was still sitting there at the property? A. Yep. Q. When the police came to drive it away, to your observation, it was still suffering from the problem that it had when it arrived? A. Well, the wheels weren't bolted on. Yeah, no, no, no, the actual front wheels like I said, the wheels that were on it got taken off, right? A new set of wheels got put on, but for the front wheels to fit they needed spacer plates, and that's what I was waiting on the spacer plates. So the front wheels weren't even like, there was probably one bolt on it that's it. (c) The photograph of item K01 was taken of it in situ. It is a blue plastic 44 gallon drum full of a brown liquid, containing 0.05% pseudoephedrine and traces of d-MA. It is obviously the waste product of the manufacture of d-MA. 44 gallons amount to 200 litres. Using the largest reaction flask found at Grose Wold, a 5 litre flask, would require 40 instances of MA manufacture. If a 3 litre flask were used that would require 66 instances. (See [28 (h)] above). Yet the photograph shows that the drum had not been in situ for long at all - only a few blades of grass appear to have started to climb up its side, consistent with its being in place for only one week. (d) The Accused was cross-examined about K01 commencing at T403. The Accused agreed that it was extremely heavy. This evidence was then given: Q. Extremely heavy? A. But it was standing upright, and then we laid it down, like we took other drums out first; then we laid it down, and then we rolled it down. Q. All right, but a 44 gallon drum on the rear of a utility truck would extend way over the side of the tray? A. It was high, yeah. Q. It was high? A. It was high, yeah. Q. It would be almost to the top of the cabin? A. Would have been over it. Q. Over it? A. Yeah, over the height of it. Q. And extremely heavy. So how did you get it from where you unloaded it to where it is now shown? A. We ... backed the ute up to where it is in there. Like, if you see where the ute is, like if you go to photo 10, right? You've got a pile of tyres if you come that way it's like a driveway goes through, and backed the ute up to there, and then, like, I got some timbers and like actually, you can see the timbers just in front of the motorbike? Q. Yes? A. Right, and I've got them timbers, and then we rolled it down the timbers, and then got it over to there and stood it back up. Those timbers can be seen in the Accused's backyard in the general photographs of the property, no. 10, close to the drum as the Accused said. This is objective evidence to support the Accused's version. (e) Similarly, general photograph no. 29 ("A number of 20 litre drums located at rear of premises. Drums had contained acetone and methylated spirits") show the drums sitting on short grass or lawn and they have obviously been only recently placed there as there is not a blade of grass seen growing up the side of any drum, most of which appear to be old and rusty. Contrast this photograph and that of K01 to which I referred in (c) above with photograph no. 31 of items in situ ("chemical bottles located in grass in fence line of property") which show the bottles surrounded by long grass. Those items were found in area "L". L01 was analysed as formamide, and L02 as pyridine. Each of those bottles was so labelled. There is no chemical analysis of L03 or L04 but L03 is labelled "chloroform" and L04 is labelled "Benzene". None of those chemicals has anything to do with the manufacture of MA, on the evidence before me. (f) Similarly, general photograph no. 28 ("View of some material located before shipping container in rear yard") appears to show only items which have very recently been dumped. (g) The Accused was cross-examined about knowing Detective Bashford who was present when the search warrant was executed in 27 November 2008 and whom the Accused saw again on, probably, 21 May 2009. As to how the Accused knew him he said this: "Understand the police don't leave me alone ... as I know lots of police... lots of police know me." He soon said that they were visitors to his house "plenty of times". The Accused was soon asked how often the police had visited his house during the 12 months preceding the execution of the search warrant. This evidence was given: A. In that 12 month I can predict at least six times and like there was times that I wasn't even home. I'd come home and found them there. Like they were writing down serial numbers and they had access to all the sheds. They had access to the whole yard. The only thing they didn't have access to was my house. Now if this was going on why didn't they find it? CROWN PROSECUTOR Q. Why didn't they have access to your house? A. Because the house was locked. And when I went there like when I seen them, what was this shit about, right, a breach AVO, right, and they take me and they arrest me, right. Then I take the police back to my premises, right, to get a receipt, right, plus show them a vehicle that hadn't been moved which I was supposed to be driving, right. Why would I take them back there if I'm manufacturing drugs why would I take them back? I wouldn't. Come on. The Accused went on to say that police had visited him because of domestic violence allegations and allegations of driving an unregistered motor vehicle. This was not part of the Accused's case in chief. The evidence came out of unwitting cross-examination commenced by Mr Crown who never suggested to the Accused that this was a fabrication or an ad hoc concoction. (h)Chemical analysis of some of the items found at Grose Wold indicate that they may well have come from elsewhere: Item Description Analysis G07 Small glass jar with a green lid containing a yellow liquid Piperonyl alcohol with traces of piperonal G34 Cornwell's Malt Vinegar bottle (see [30] above) 1.34% pseudoephedrine 0.07% d-MA 0.02% MDMA G59 A 2 L Coles juice bottle with a green lid containing a 2 phase orange and yellow liquid Traces of pseudoephedrine, MA and P2P I10 A glass jar with a red lid containing a yellow liquid and a crystal solid 63.1% phenylacetic acid. Benzyl cyanide is indicated. 77It necessarily follows from the last finding that most of what the police found at Grose Wold came from elsewhere six days previously and, in accordance with the Accused's evidence, manufacture of prohibited drugs could only have taken place on five days, from Saturday 22 November to Wednesday 26 November 2008. The bulk of the waste matter found at Grose Wold was in K01, which I accept came on Alan Douglas' truck for reasons I have just stated. 44 gallons is just over 200 litres and that is the amount of waste matter given by Mr Ballard in his report. This has caused me to go carefully through the items collected by the police, the chemical analyses and the photographic evidence, in order to ascertain what I can in confidence accept, bearing in mind the standard of proof, points to the manufacture of MA at Grose Wold. Those items are these: (i) A10: A plastic container with blue clips containing a silver knife and an amount of brown coloured crystalline substance found in the freezer compartment of the refrigerator of the kitchen, analysed to be 50.1% pseudoephedrine with traces of d-MA. (ii)A55: A plastic jar with paper filter on top that contains an amount of white residue, analysed to contain 1.21% d-MA. (iii)G28: Described in exhibit L as a 10 centimetre glass "bottle", but it does not appear to have any neck and appears to me to be a drinking glass or small dish or a jar (not to be closed with a screw-top lid) with brown residue and a knife, the residue being analysed to contain 10% pseudoephedrine with traces of d-MA. (iv)H04: A round dish containing brown crystallised residue, analysed to contain 7.67% of pseudoephedrine with traces of d-MA. I would classify items A43, B07 and G33 as probable evidence of the manufacture of MA at Grose Wold but not as proof beyond reasonable doubt. 78I am completely unable to ascertain how much MA may have been manufactured at Grose Wold. I accept that the bulk of the waste material came from elsewhere. I am accordingly, not satisfied beyond reasonable doubt that either a large commercial quantity or a commercial quantity of MA was manufactured at Grose Wold. 79I am not persuaded beyond reasonable doubt that the Accused manufactured MA at Grose Wold. The question which then arises is whether the Accused knowingly took part in the manufacture or production of MA. I do not accept the Accused's averments that he did not know that Alan Douglas and his assistants were "cooking" MA at Grose Wold. The Accused's evidence in that regard is totally unconvincing and asks me to accept that he was not world-wise and was unaware of Douglas' reputation as a drug manufacturer, Douglas being a man whom the Accused had known for some 20 years. However, rejecting the Accused's evidence on this issue does not prove the issue beyond reasonable doubt. Rejection of the negative does not prove the positive. 80Drug Misuse and Trafficking Act 1985 s 6 was on 27 November 2008 in the following terms: 6 Meaning of "take part in" For the purposes of this Act and the regulations, a person takes part in the cultivation or supply of a prohibited plant or the manufacture, production or supply of a prohibited drug if: (a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply, (b) the person provides or arranges finance for any such step in that process, or (c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates. In the present case, the Accused admitted on numerous occasions in his evidence that he allowed Alan Douglas to extract pseudoephedrine in his shed at Grose Wold. To allow something is to permit it. To suffer something is to submit to something happening. As I pointed out much earlier in these reasons, the extraction of pseudoephedrine is a part of the process, or a step in the process, of manufacturing MA. The Accused knew that. Accordingly the Accused knowingly provided his shed to be used for a step in the process of the manufacture of MA. Accordingly, the Accused is guilty of an offence contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985. I quoted at [63] and [70] above, some of the evidence of the Accused in which he admitted his knowledge that pseudoephedrine was part of the manufacture of MA. This evidence should also be considered: Q. So what were these men doing in the kitchen when you arrived back between 6.30 and 7 on Wednesday? A. Obviously a pseudo extraction. Q. What was obvious about it? A. What do you mean? Q. How did you know it was obviously pseudo extraction? A. Seen it before, yeah, so I knew what it was. Q. And, what, that's when they've crossed the line, have they? A. Yeah, I didn't give anyone permission to use my house for anything. I said the shed, okay, but not the house. Was a child exposed to the manufacturing process at Grose Wold? 81I am not persuaded of this element beyond reasonable doubt. I accept the evidence of the Accused on this issue, supported as it is by the evidence of Ms Christine Cole, the mother of the Accused's daughter, Teeka Cole-Galway. At the relevant time Teeka was 13 years old. Up until 2008, Teeka was living with her mother at Lethbridge Park. Ms Cole gave this evidence: A. Well she was living with me but then when she started high school she just didn't like high school whatsoever and we had a lot of trouble with her. We changed high schools. We done everything and she still didn't want to go. So then she stayed with Les for a while and he enrolled her in school so then she was living with him, but whenever he wanted to come and see her or I wanted to go there to see her it was fine, we just could go and we didn't have any set times or arrangements or anything like that, it was just whenever we wanted to or if she wanted to come to my house that was fine, he'd bring her or vice versa. Q. Did there come a time when you realised that Mr Galway had become arrested or was arrested? A. Yeah, on the day that he got arrested I knew that because Teeka slept in my house she'd been in my house about three weeks prior to that and we took ... her to school in the morning but she wanted to go home and check the mailbox first so we dropped her off there so she could get the school bus with the kids next door and before we got home she was on the phone hysterical saying that she'd seen him with the police and whatever. When Ms Cole was cross-examined she gave this evidence as to why she believed that Teeka had been staying with her for about three weeks: Q. Are you sure that it was that long and not a small number of days? A. No, it was that long because I thought if it goes on like this and stays a month I may as well move her back here, but he would pick her up some afternoons and drop her at my house or I'd pick her up, whichever. It was too much for me to get up and have to pay petrol to my friend and her get her kid up and all that, so I thought if it goes on for more than a month we'd have to work something else out and it was three weeks so it was nearly close to the month and, yeah. I found that explanation convincing. The Accused said that Teeka had not stayed with him since Friday 21 November 2008 as, after Alan Douglas had turned up, he picked her up from school and dropped her at her mother's house, but that was what usually happened when Teeka was staying at her mother's: Ms Cole would drop Teeka at school from Lethbridge Park and the Accused would pick her up after school and take her back to Lethbridge Park, as happened e.g. on Wednesday 26 November 2008. 82Teeka was enrolled at Colo High School, near Grose Wold on 6 March 2008 and remained enrolled until 10 June 2011, when I know that, but for the period 11 May 2009 and 21 May 2009, the Accused was not living at Grose Wold after his initial arrest. Ms Cole was still living at Lethbridge Park when she gave evidence on 9 October 2013. Accordingly I can readily accept that Ms Cole's relative geographical distance from the Colo High School was no impediment to Teeka's studying there. There is no dispute that Teeka attended Colo High School on 27 November 2008. Clearly with the consent of the Accused, DSC Reay gave this evidence on D5: Q. Detective Reay, on Thursday, 27 November 2008 you became aware of the sighting by other police of a young woman, a girl later identified as Mr Galway's daughter, walking in the vicinity of the Scotts Farm Road property? A. Yes, I'm aware that Constable Currie who was in company of Constable Hines in a marked police vehicle they were en route to Scotts Farm Road with us just prior to 7am on that date to execute the search warrant. I'm aware that Constable Currie has provided a statement whereby he sees a person that he later identified as Teeka Cole-Galway walking from along the Scotts Farm Road in what he described as similar to a school uniform. Q. When Mr Galway was placed under arrest and taken to Windsor Police Station are you aware that en route he asked if the car could be stopped for the purpose of speaking to his daughter? A. Yes. Q. On Scotts Farm Road? A. Yes. Q. And that that in fact occurred? A. Yes. Q. And I think it was Constable Currie again who was driving the vehicle or accompanying him in the vehicle at that time? A. That's right. Q. The next day did Mr Galway's daughter, Teeka, attend the property briefly for the purpose of collecting some clothing? A. Yes, I understand that's the evidence that could be provided by Detective Sergeant or then Detective Sergeant James Hall. He observed Teeka attend the property in the company of another female. He accompanied her inside with Inspector Shoebridge that was present there to collect some belongings from inside the dwelling and then left the property. Ms Cole gave evidence that on the morning of 27 November 2008 she dropped Teeka off at the mailbox of the Accused's house because she wished to check it and Teeka would then go to the local bus stop and catch the bus to school with the children next door (T453.27). The Accused's mailbox was some distance from his property, and Ms Cole pointed it out on the aerial photograph of the Accused's property contained in exhibit A. It is some distance from the boundary fence of any part of the Accused's property. Ms Cole also said that Teeka wished to check the mailbox for items that she had ordered that were to be delivered to the Accused's mailbox, "hair extensions and some makeup stuff." Ms Cole said she left Lethbridge Park at 6am, which fits in with what the police observed on the morning of 27 November 2008. 83As to what Det. Sgt. James Hall observed on 28 November 2008, Ms Cole gave this evidence: Q. Did Teeka need to go back to Les's place the next day? A. No, she didn't go back the next day 'cause I didn't know what was happening and what was going on and I didn't want her to be involved so she had enough clothes at my house, she didn't need to go back for a couple of days anyway. Q. So if anyone suggested that she went back the next day to collect some clothes that would be wrong? A. Yeah, it wasn't the next day, a couple of days later she did. Q. A couple of days later? A. Yeah. I'm not sure, I can't really remember but I know she didn't go back that day. HIS HONOUR Q. You mean on the day that Les was arrested? A. Yeah, she didn't go back that day at all. It was clear to me that Ms Cole was confident Teeka did not return to the Accused's property on 27 November 2008 but was unsure as to when she may have subsequently done so. I do not accept that Ms Cole sought to mislead me. I find no contradiction between her evidence and that given in the Crown case. 84The other evidence relied on by the Crown is this evidence given by DSC Reay on D1: Q. Now, did you find children's clothing in Teeka's room or all the other bedrooms? A. From memory, bedroom 2 did not have any children's clothing. It was relatively sparse. I think there was a safe and a television retrieved from that room. Bedroom 3, I think, had a children's bed and some clothing stacked in it but it was fairly neat. It didn't seem to be - like it was inhabited on a regular basis. Bedroom 4 had dishevelled clothing, children's clothing of an age similar to what I'd imagine Teeka would have been then, around 13 or 14 years of age. A room typical of being lived in by a person of that age. CROWN PROSECUTOR Q. Did you observe anything about the bedding in that particular room? A. The bedding was like someone had just gotten out of it. It was dishevelled. "Dishevelled" bedding will remain in that state until someone tidies up or "makes" the bed. One could not lay a charge against the Accused of being a good housekeeper. He is unlikely to have made up Teeka's bed for her. The presence of a child's clothing in two different houses is common in these days of widespread parental separation. This evidence is not inconsistent with the evidence of either the Accused or Ms Cole. Other arguments concerning counts 1 and 1A 85It ought be clear from what I have already found that I also do not accept the evidence of Daryl Galway concerning his visit to Grose Wold. His evidence was that some considerable time before the Accused's arrest on 27 November 2008 he had visited the Accused at Grose Wold. He said, "It might have been 12 months before that, I am not sure". He gave this evidence in chief: Q. Now doing the best that you can now then, did you on any occasion see Les in the shed at Grose Wold? A. Yes. Q. Was Les doing anything on that one occasion? A. Yes. Q. What did you observe him doing? A. He was in the shed, there was glassware set up at the back on a bench and there was that honey brown liquid that was in the flask. Q. And in relation to the glassware set up on the bench and the honey brown liquid in one of the items of glassware, whereabouts was Les? A. He was sort of in the middle of the shed. Q. Did you see physically what he was doing? A. I assumed that's what he was doing. I didn't physically see it with my own two eyes. Q. At that time did you smell anything? A. Yes. Q. Can you describe the smell? A. It's just a stinky putrid smell. Q. Was that a smell that you had smelt before? A. Yes. Q. In what circumstances? A. 2002. A little later he said he saw a round flask with a neck, the circumference of which was about 8 or 9 inches containing honey-brown liquid, and attached to that was a condenser. He said he saw two other men at Grose Wold known as Rabbit and Triple M, names which are not mentioned elsewhere in the evidence. Daryl's timing of his visit is completely inconsistent with the finding I recorded in [76] above. Daryl could well be describing what he himself had done in the past. I reject this evidence from Daryl. 86Clearly the Accused's fingerprints were found on the 14 items as I have earlier mentioned. However that is quite consistent with the Accused's helping Alan Douglas to unload the utility truck on 21 November 2008 and with his touching items in the kitchen and moving some on the evening of 26 November. The only item which gives me concern is item G33 which I listed in [77] above as a probable item used in the manufacture of MA at Grose Wold. However, the fingerprint may have been placed before the jar was filled with the clear fluid. 87Mr Crown laid stress upon certain similarities of items recovered at both Grose Wold and Leppington. However, there is no actual proof that what was taken to Grose Wold came from Leppington. Similarities are explicable by equipment having another common source e.g. Alan Douglas. Mr Crown, in his submissions emphasised the "patina of age" of items found at Grose Wold. However, aged items could have been taken to Grose Wold. I have watched the site-assessment video on a number of occasions and I can not see any conclusive evidence that any object or item had been in situ for a long time. There is evidence of "poor housekeeping" but, given the Accused's background, what Alan Douglas and his assistants were doing in the shed and the fact that it is a shed with a dirt floor, one could not expect much else. Count 4 88This count charges the possession of 79.26 grams of pseudoephedrine, a precursor intended by him for use in the manufacture by him of a prohibited drug, namely MA. There are two elements of this offence: (i)the Accused had in his possession a precursor, and (ii)he intended to use this precursor in the manufacture or production by him or another person, of a prohibited drug. I am prepared to accept the Accused's evidence that he found the bag of and box of proprietary medicines in his kitchen on the evening of 26 November 2008. I accept that they were brought there by Alan Douglas or one or more of his assistants. The bag and box may originally have been in the shed. However the Accused took possession of them when he picked them up and moved them to his bedroom and sought to hide them there. The asportation of the bag and box and their secretion in another part of the Accused's house amount, in law, to his taking possession of them. The first element is established beyond reasonable doubt. 89The evidence to support the second element is, if there actually be any, extremely tenuous. I have already quoted part of the following evidence given in cross-examination but the extent of the cross-examination of the Accused on this issue is: Q. Where were the bags of white tablets before you put them in the bedroom? A. On the kitchen bench. Q. Just sitting on the kitchen bench? A. Yes. There was a bag and a box and I had them in my hand when Lisa turned up and, like, I was actually walking over toward the door, you know what I mean, and that's when I went to the bedroom and I thought I threw them in my bedroom drawer. Q. Did you put any under the bed? A. I don't think so, no. I don't know. Q. Did you put any in a drawer? A. That's what I just said, in the bedroom drawer, yeah. That's where I thought they actually all went. Possibly could have dropped it, I don't know. Q. Why did you hide those tablets? A. Because I didn't want Lisa to see them. Q. You didn't want Lisa to see the tablets? A. No, I didn't want her to see anything, that's why I moved the stuff out of the direct kitchen and that, you know what I mean. And it was just a spur of the moment thing. Like it wasn't something I planned to put them in the bedroom drawer or nothing. A little later the Accused said that he kept "what they'd done ... on the bench" because he was expecting "them" to return. He went of to say this: "I didn't think I was going to get away with it that easily. I was half scattered ... I'd been on drugs, and I ... wasn't thinking that I was going to get away with it." I have already pointed to other evidence given by the Accused of his expecting Alan Douglas, at least, to return. The Accused took the tablets and sought to hide them from Ms Bullock, not from Alan Douglas. He would know that he left them with the Accused and would no doubt return to claim his property, obviously including the tablets used as a prime ingredient in the manufacture of MA. Seeking to hide the tablets from Alan Douglas and converting them to the Accused's own use could have brought dire consequences from either Douglas or his biker acquaintances. The only intention that I can discern from the evidence is that the Accused intended to give the tablets back to Alan Douglas on demand. The second element of this offence has not been made out on any standard of proof. 90I suspect that it could be argued (but it was not) that the Accused "knew" that Alan Douglas would use the tablets in the manufacture of MA. However, such "knowledge" is merely a deep or strong suspicion. The Act requires the Accused to have the requisite intention. Intention must be distinguished from something such as "belief on reasonable grounds" that another might or would use the precursor to manufacture the prohibited drug. Count 5 91This count charges that the Accused supplied ketamine in an amount which was not less than the commercial quantity of that drug. The commercial quantity of that drug is 1.25 kilograms. Item D04 (a brown cardboard box with yellow DHL tape), which was found on the dirt floor of the shed at Grose Wold contained 1.718 kilograms of ketamine with a purity of less than 1%. The purity of the drug is irrelevant in State offences. Small amounts of ketamine were also found in the kitchen of the Accused's house. The commercial quantity of the drug has been established beyond reasonable doubt. 92"Supply" is defined in s 3 of the Drug Misuse and Trafficking Act 1985 thus: "supply" includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things. Section 29 of the same Act is this: 29 Traffickable quantity-possession taken to be for supply A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless: (a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or (b) except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner. The traffickable quantity of ketamine is 7.5 grams, so the commercial quantity of the drug is a traffickable amount. Under section 29, the Crown is required to prove that the Accused had in his possession a quantity of the drug in excess of the traffickable quantity. The Accused is then liable to be convicted of supplying the drug contrary to s 25 of the Act unless the Accused proves either of the circumstances provided by paragraphs (a) or (b) of s 29. The allegation is, in essence, of "deemed supply". 93In DPP v Brooks [1974] AC 862; [1974] 2 All ER 840, Lord Diplock, delivering the advice of the Privy Council in an appeal from the Court of Appeal of Jamaica, said this: "In the ordinary use of the word 'possession', one has in one's possession whatever is, to one's knowledge, physically in one's custody or one's physical control" (All ER at 842h)." This dictum was cited with approval in He Kaw Teh v The Queen (1985) 157 CLR 523 by Gibbs CJ (at 537), by Brennan J (at 586) and by Dawson J (at 600). Mason J (as he then was) concurred with the Chief Justice. Did the Accused know that there was ketamine at his property? In his evidence-in-chief the Accused said this: Q. There was also discovered a chemical by the name of ketamine. Are you able to tell us how that arrived or how it got to Grose Wold? A. It obviously come in the back of the ute. Q. Did you ever handle any of that material? A. Ketamine? Q. Yes. A. No. I wouldn't even know what it looked like. The Accused was cross-examined about the box (D04) at T411 and again denied that he had seen the box containing "that brown powder" before the arrival of Alan Douglas in his utility truck on 21 November 2008. He was then cross-examined about bags of substances found in the kitchen, one of which bags (item A43) contained 1.23 grams of ketamine. Another bag (without a chemical operations identifier, item 6 referred to in the DAL certificate of 25 March 2009) also contained 0.27g of ketamine. Photo no. 6 in the general photos taken at Grose Wold behind pink tab 2 in that part of exhibit A relating to Grose Wold is a photograph of this last item. The Accused freely admitted that he owned small bags of MA found in his kitchen - he was an addict and these were for his personal use. Mr Crown then turned to the photograph of the small bag of ketamine: Q. The small plastic bag, photo 6, on the window sill. A. Yes. Q. It contained a small amount of ketamine. A. No, it looks like meth to me. Q. It looks like meth to you? A. Meth. Q. Had you seen that bag before? A. Yeah. Q. Was it yours? A. Possibly. Possibly. I don't know. But to be having ketamine, no. Q. You say that ketamine was not a drug which you used yourself? A. No, it wouldn't be no. Q. But it was a drug that you used during part of some of your manufacturing process, wasn't it? A. No. The Accused then said that if a small bag contained amphetamine he suspected or accepted ("expected") that it was his. This evidence was then given: HIS HONOUR Q. Does that mean if it's not amphetamine it's unlikely to be yours? A. Yeah, pretty much. Unless I've been duded. Q. That does happen, doesn't it? A. Of course. More often than not. The thrust of the Accused's evidence is that he knew nothing about the ketamine and I am prepared to accept that evidence, particularly when he freely admitted to the possession of the bags of MA found in his kitchen, and also the 0.86 grams of MA found in a small plastic cup (general photos, pink tab 2, no. 4, item 7 in DAL certificate of 25 March 2009). Accordingly I am not satisfied beyond reasonable doubt that the Accused had knowledge of the ketamine, sufficient to establish "possession" of that drug. Counts 6, 6A, 7 and 7A 94At [47] above I found beyond reasonable doubt that a commercial quantity of MA had been manufactured at Leppington and at [51] I found beyond reasonable doubt that a large commercial quantity of MDMA had been manufactured at the same site. What evidence links the Accused to these manufactures? The evidence which might link the Accused can be summarised thus: (a)evidence of Daryl Galway; (b)welding a metal keg; (c)fingerprints; (d)lack of "recent" use of the Leppington shed; and (e)alleged admissions made by the Accused in the ERISP. I shall consider each of these areas separately. (a) Daryl Galway's evidence 95At [58] above I pointed out that I am unable to accept any of the evidence of Daryl Galway beyond reasonable doubt unless there be adequate corroboration. In his evidence-in-chief, Daryl said that he went to the chicken shed and he noticed some boxes. He had to move them to get one of his cars out of the shed. He then said, "the bottoms of the boxes were wet and when I moved it [sic] a fair bit of glassware fell out". It is unclear to me whether his use of the singular, neuter pronoun is a mistake for use of the plural or whether glassware fell out of one box only. When asked what sort of glassware he meant he said "condensers, bowls" (the latter word has been incorrectly transcribed as 'bulbs'), "as glassware to manufacture, to cook" prohibited drugs. Daryl had not placed that glassware there and did not "see" how it came to be there. He had seen the Accused at the shed on several occasions and had seen him moving furniture and "boxes and stuff like that" on different occasions (T74) and also cars (T76.32). He then gave evidence about the smell he noticed at Leppington when the Accused may or may not have been there but where his car was at least once, that I quoted in [57] above. A little later Daryl gave this evidence: Q. Did you have a conversation with Les asking him to take equipment out of the shed? A. To remove the stuff from the premises 'cause I didn't want to know about it because it would have involved me again. HIS HONOUR Q. What stuff was that? A. Just the stuff that I had seen when I was moving the car out of the shed. Q. What, the glassware you mean? A. Glassware and these CROWN PROSECUTOR Q. These? Sorry, if you could just finish? A. These containers, vats or whatever you want to call them. Q. Did Les say anything to you when you made that request? A. No, he didn't. Whether he was thinking to say something or completely forgot about it or what, I don't, I don't know. The conversation is an odd one, where the person spoken to says nothing. I find it hard to accept that the Accused said nothing. 96Daryl then said that at Leppington he saw Alan Douglas and Dave, and they were with the Accused "on one or two occasions". He saw Alan Douglas "a few times" at Leppington. He had known Alan Douglas since Christmas 1999 or Christmas 2000. When the Accused was in custody at Bathurst gaol, Daryl visited him. Daryl recalled a question about the Leppington shed and the Accused is alleged to have replied that, "I'll worry about it later." 97In cross-examination Daryl admitted that when he was interviewed by police on 4 June 2009, immediately after his arrest, he said his discovery of the chemical apparatus occurred 6 months earlier. He told police, " I seen stuff in the shed but I just turned around and just walked straight back out and locked it." Of course, 6 months before 4 June 2009 would be early December 2008 i.e. after the Accused's arrest. This evidence was then given: Q. So is the position this: there was only ever one occasion that you saw this equipment, these items of apparatus that you've told us about, one occasion; namely, six months before this interview you had with police in June 2009. Right? A. (No verbal reply) Q. You have to say yes, it's being recorded. A. Yes. Q. Can I suggest this to you, that you merely assumed when you saw those items, that Les had put them there, you never saw Les put the items in the shed, did you? A. No, I didn't, I did not physically see him put them in the shed. Q. Isn't the position this, you saw them and you just assumed that Les had put those items there? A. Yes, I assumed. Q. Didn't you also assume that the person you described to the police in the interview of June 2009, as Al, didn't you also assume that Al was responsible for some of those items? A. Yes. Q. You said if you go to page 19 of the interview, at question 256, you were asked the question, "So how do you think these items that caused you to walk out of the shed come to be in there?" And you answered, "Well, I assume that my brother Les and one of his mates, Al, put them there." Then you went on to describe the person Al, whom you've referred to in your evidence? A. Yes. At T94 Daryl said he had seen Alan at Leppington on several occasions and in answer to the very next question he said that he had only seen him by himself, i.e. not with either Dave or the Accused. I shall not recite again his evidence about smells which I discussed in some detail between [56] and [58] above, where I pointed out that I have no confidence whatever in his reliability on that area of evidence. 98The only corroboration for any of this evidence is the evidence of the Accused, about Daryl's approach to him at least a month before and more likely two months before 27 November 2011 which I recited at [60] above. I find the Accused's evidence in that regard more plausible than the evidence of Daryl. (b) Welding a metal keg 99Daryl Galway said that there was an occasion when he saw some light at the shed and heard some sound coming from it. He went to the shed and saw the Accused "welding up a steel pipe" (T77.27) that was 8 to 10 feet long and about 8 inches in circumference. He was taken later by Mr Crown to the photograph of item E09 (a steel beer keg, converted to an improvised reaction vessel) and said, "All I seen Les doing was welding that bit of pipe into that container, that's all I seen." He agreed that the item was a beer keg. The piece of pipe welded onto the keg appears to me to be about 6 inches long, at longest no more than 12 inches, a foot. Neither the keg or the pipe, or the two combined measure the description initially provided by Daryl. 100The Accused gave this evidence about welding a keg: Q. Now you've also heard evidence, I think, from your brother where he described, I think, he saw you welding up a keg or something. A. Yep. Q. Remember that evidence? Can you tell us about that? A. Well I was over at my St Marys yard, like wood yard, and there was Alan had a factory unit in the same like - well I had the wood yard next door and then there was probably eight or ten units. Now Alan and others had shared units there. Now they were making biodiesel there. Now he brought this keg to me, right, and asked me could I repair it, right. And that's what I was doing at Leppington. Like I was actually doing the repair on the keg. Q. When you say repair what sort of repair? A. Like up around the top there's like a neck thing on it, right, and there was it was leaking around that neck, right, and I just welded that neck part. Q. Did Alan ask you to do that? A. Yes. Q. What were the background circumstances to him inviting you to fix this keg up? A. I'm not sure what you mean. Q. Well was there some particular conversation you had with him about what he was using that keg for? A. Yeah, yeah. Like I'd already seen what they were doing with it. They were making biodiesel from like old cooking oil and stuff like that. Q. But when was that? When did you see that? A. In the St Mary's yard, like this is before anything even got found over there, you know what I mean. Like it was ages before. Q. I think the evidence was that there was one of these kegs also at Grose Wold? A. Yes. Q. Can you tell us how that A. It was on the back of the ute. That come on the back of the ute. It was around about that time well actually yes, it was about that time, right, that I'd sort of known that these kegs weren't for the realistically making the biodiesel, you know what I mean, like. Q. But had you worked on one keg or two kegs for Alan? A. Just one. Just one. Only repaired it, that was it. Q. So the keg at Grose Wold your evidence is that came on the A. On the ute, yeah. Q. With the other A. Yeah. Q. The other material? A. Yep. HIS HONOUR Q. Did you repair the keg for Alan at St Mary's or A. No, no, at Leppington, that's where my welder and all that was. Cross-examination on this issue was limited to this: Q. E9 is a photograph of a keg - it's a keg which your brother Daryl pointed out as being the one he thought that he saw you welding at Leppington? A. That's not the one. Q. That's not the one? Do you say that it is the one that we looked at yesterday from Grose Wold? A. No. The one I remember welding, right is very similar to the one in E10 but it had a yellow band on it. Q. So E10? A. It had a ... yellow stripe in. Q. Would you say this: to the extent that there are kegs at Leppington similar to the one at Grose Wold, to the extent that there are blue tubs with black lids at Leppington similar to the ones at Grose Wold ... to the extent that there are items of scientific equipment, glassware and the like, at Leppington similar to what police found at Grose Wold they are in both those locations because of Alan Douglas, not because of you? A. Correct. E10 is a more modern keg than E09 but does not have a yellow stripe on it, rather a blue stripe and a red stripe. 101All I can find from this evidence is that at some time the Accused welded a keg in the chicken shed at Leppington for Alan Douglas, the welding being done there because the Accused's welding equipment was stored there. The Accused said that at that time he believed Alan Douglas required the welding to be done for the purposes of that man's bio-diesel business. There is no other evidence about the existence of such a business, but the Accused was not challenged in that regard. This is not proof of the involvement of the Accused in the manufacture of prohibited drugs. (c) Fingerprints 102I have recited the Accused's evidence about his fingerprints at [71] above. The items on which his fingerprints were found are: A16: A glass sintered funnel inside a 1 L glass pyrex jug. C38: 2x800ml glass pyrex beakers containing a dark brown residue. A35: A 750ml glass bottle adapted as a separating funnel with a plastic neck and tap. D14: An empty 4 L methylated spirits bottle. None of these items were subject to chemical analysis. The presence of the Accused's fingerprints raises grave suspicion. However grave suspicion is no substitute for proof beyond reasonable doubt. The Accused's fingerprints were found on 4 items out of 215 and from 3 different areas of the shed. The Accused's touching items looking for drugs does not explain his prints, in my view, on items C38, A35 and D14. However, the Accused does admit entering the shed and seeing the clandestine laboratory and he could well have touched many things in passing. I have, somewhat reluctantly, concluded that the Accused's evidence about his fingerprints might reasonably be true and therefore raises a reasonable doubt. (d) Lack of "recent" use of the shed 103This was a submission put to me by the Crown. However, there is no actual evidence as to when the laboratory was last used. The Crown submitted that because the Accused was in custody between 27 November 2008 and 11 May 2009 and because there is no evidence of the Accused's going there between 11 May 2009 and the execution of the search warrant on 20 May 2009, the Accused was the operator of the laboratory. However, assuming the laboratory had not been recently operated, how am I, as the tribunal of fact, to know whether it was last operated one month, two months, three months, four months, five months or six months before 20 May 2009? How am I to know whether the cessation of operation of the laboratory was due to the illness of and undoubted death of Alan Douglas during this period? I can attach no weight whatever to this submission. (e) Alleged admissions made in the ERISP 104In question 94, the Accused was asked when he was last in the shed at Leppington. The interview continued thus: A. Oh, God, I've honestly got no idea, um--- Q. O.K. A. Prior, prior to the Grose Wold thing, you know, I went through a shit, a load of shit with Alison, right, and that's when like I ... You know what I mean? Like, um basically she took me, me girls and fucking there's me life, you know what I mean? So I thought --- Q. Yeah. A. ... I thought all right, nothing to lose so fucking bang and that's when I fell into the trap with the other shit, you know. Q. Yeah. O.K. All right. So we're going to, we probably can't establish when you last went into the shed at Leppington. Can you tell me what other things you've seen in the shed? A. I'd rather not. Q. O.K. A. At this point in time. The Accused explained this in cross-examination: Q. At question 95 you told the police about that, didn't you? That prior to the Grose Wold thing, you went through a load of shit with Alison? A. Yep. Q. She took the girls, and as you say, "Well, there's my life you know what I mean?"? A. Yep. Q. "So I thought, 'all right; nothing to lose; so fucking bang, and that's when I fell into the trap with the other shit, you know'"? A. Yep. Q. You were talking about the period in your life when you fell into the trap of being involved, through Alan Douglas. A. No. Q. ...in drug manufacturing, weren't you? A. No, I meant getting on drugs back on drugs. That's when it all started, like, when I got back on the drugs. I am prepared to accept as a reasonably available interpretation of "I fell into the trap with the other shit" as being a relapse by the Accused to drug use. However the next questions asked by the Crown and the answers given are: Q. Because if you go over the page? A. Yep. Q. And at 99, you told the police officer this: 'But you know the worst part about that - every time I've been hit they always give me enough to fucking do it again. So you know, I can't just turn to you and say, "Man youse left this all right", because it would be 'Yeah, sure you know.' And it would be my luck on the way there I'd get my arse nailed. So catch 22, you know.'? A. What I was referring to by that, was that when I did get out of gaol from, like, the Grose Wold raid, right? There was numerous items that the police had left behind, right? And again, when they done the Leppington raid they left a heap of shit behind then. Now, this ... interview ... is after the Leppington raid, and like some years after, right? And that's ... what I was referring to there. I am also prepared to accept that in A99 the Accused was referring to items left behind by police after the execution of the search warrants on 27 November 2008 and 20 May 2009. The Crown did not seek to establish that, for example, the Accused was connected in someway with some other clandestine drug laboratory (e.g. Daryl's, which lead to his arrest in 2002) and that the police left behind sufficient equipment to enable the Accused to set up the clandestine drug laboratories, or one of them, discovered at Leppington and Grose Wold. 105After the answer last quoted by Mr Crown, the ERISP continued thus: Q. So what do you mean do it again? A. Well, manufacturing, you know what I mean, like um--- Q. So are you saying there's always been gear left around and they enable you to do things? A. Yeah, well, it just doesn't enable, it entices, you know what I mean? Like whenever you talk about be tough or whatever and it always seem at the time you're approached by the right people and... Q. Yeah. A. You know. Q. Yeah O.K All right. But you see that the police hadn't to my knowledge ever been to Leppington before --- A. No, no, no. Q. --- so I can't say there's been anything that the police may have left behind, if there was a lab there and they took it and all the stuff gone so --- A. But understand I didn't want it at me house either. You know what I mean? Like bits and pieces. In my view it is permissible to regard this as referring to pressure being exerted e.g. by someone like Alan Douglas or his biker associates, to manufacture prohibited drugs using material left behind after a "police raid". 106The Accused was then asked about who may have been using the shed at Leppington and the Accused said that it was he and three others: one obviously is Daryl, it is now known that another was Alan Douglas but the identity of the third person has not been disclosed (at least, to me). He went on to point out that he used the shed to store things and as a yard for his firewood and his firewood business caused him to be there Monday to Friday, (sometimes) between 6am and 10pm. The interview continued: A. All right. And then, all right, that's when the old fellow approached and blah, blah, blah and well, anything for a quid, you know, and then um, like um, yeah, I don't know, I don't know. Q135. It's all, yeah. A. Yeah, I'll just stop it there because like --- Q136. O.K. A. Mmm. When confronted with that answer (A134), the Accused gave this evidence: Q. The answer to the question we see it there at 134 about three quarters of the way down page 15? You said this: "And then all right but that's when the old fella approached and blah, blah, blah and well, anything for a quid, you know? And then I'm like 'Yeah, I don't know, I don't know.'" You were talking about, first of all, Alan Douglas there the old fellow, weren't you? A. Obviously, yep. Q. And when he approached you, he approached you at that point to be involved in drug manufacturing, didn't he? A. No, it was to repair the keg. Q. "Anything for a quid, you know."? A. That's right. Q. You were telling the police about Leppington, and what was happening at Leppington? A. No, like ... that interview, like, I ... would just put it straight out now, all right. I ... was off my head. I was scattered out, all right? And it made me sick to watch it, right? And the two years I've spent in gaol, all right, has made me realize how much of an idiot I've been in my past. And like, I can tell you know, what I meant there was "for a quid" was he paid me to repair that keg. The Accused said on a number of other occasions, in essence, that he did not know what he was saying in the interview and that his mind was drug-addled: e.g. T359.30, T361.06 (where the Accused described himself as a "drug-fucked idiot"), T425.49, and T426.45 (where he said, "To sit down and watch something like that ... was the biggest kick in the guts I've ever had in my life" - a masterpiece of hyperbole). 107I am unable to accept the evidence I have last quoted and the protestations I have just summarised. In my ruling of 2 October 2013 I canvassed the admissibility of the ERISP. At [31] of that ruling I said this: "Having observed the recorded interview and read it a number of times, I see no danger of confabulation. I do not find any lack of awareness on the part of the Accused. I cannot determine any lack of capacity to make rational decisions, between speaking and remaining silent, especially where the Accused's rights were repeatedly drawn to his attention, and I cannot see any irrational answers." In my ruling of 9 October 2013 I said this: 6. For the purposes of today's ruling I have again, in open Court, re played exhibit T, the edited electronically recorded interview. It appeared to me that the observation I made on p 279 to which I have just referred was correct. The Accused's somatic language indicated to me some agitation consistent with affectation by some substance such as an illicit drug or alcohol or both. However, in the earlier ruling I pointed out that there was nothing in the answers given by the accused in the interview to suggest that they were other than reliable. Indeed when I replayed exhibit T, it became clear to me that the Accused's language, grammar and syntax in the interview were almost the same as his language, syntax and grammar in the witness box. 7.The Accused's body may have been affected by his drug consumption on 27 October 2011 but there is nothing to suggest in the electronically recorded interview that his psyche was adversely affected and that is confirmed by the answers he gave in the interview itself to both Detective Senior Constable Reay, to Detective Senior Constable Bashford and to the confirming, independent officer, Sergeant O'Donoghue. The Accused's assertion that "anything for a quid" is explained by his repairing a beer keg for a reward is so implausible as to be ridiculous. 108However, "anything for a quid" is very vague. The Crown argues that the only plausible explanation is that the Accused was admitting to manufacturing prohibited drugs. That, in my view of this case, is not the only plausible explanation. Another equally plausible explanation is the Accused's permitting Alan Douglas to use the shed, or telling him about it or introducing Douglas to Daryl. The Accused said in evidence that he did not give a key to the shed to Douglas (T419.42), he assumed Daryl must have done so, but there is no evidence from Daryl about this aspect of the case. A79 of the ERISP suggests that an XG1 Torana owned by Alan Douglas was in the shed. Douglas may have originally used the shed for some legitimate purpose but subsequently used it for the illegitimate purpose of a clandestine drug laboratory. Another consideration is that the Accused was initially paying rent for the shed, but when his firewood business was failing and there were the relationship difficulties with his former partner, Ms Allison Mudford, money could have become a scarce commodity and an offer to pay the rent for the shed from Douglas may have been welcome. There is clearly more than one plausible explanation for "anything for a quid." The fact that I reject the Accused's explanation does not mean that I must adopt the explanation argued by the Crown. The Accused is entitled to the benefit of any reasonable doubt and I have reasonable doubts about the meaning of "anything for a quid." 109Of course one must ask why the Accused told what can only be described as a lie to explain the meaning of "anything for a quid" when there is another, more plausible explanation. The answer could well be that the Accused was afraid that he might inculpate himself, bearing in mind the extended definition of "take part in" in s 6 of the Drug Misuse and Trafficking Act 1985. However, the Crown did not rely on, for example, the Accused's letting or sub-letting the chicken shed at Leppington to another, perhaps Alan Douglas, and permitting or suffering that person to manufacture prohibited drugs. The Crown case was based on the Accused's actually manufacturing prohibited drugs: see T420.37 to T420.50, T425.36, T429.08. In the lead up to the last question I to which I have just referred, Mr Crown put this question: Q: He [Alan Douglas] had access to the Leppington shed through you and your key didn't he? to which the Accused responded in the negative. Later (at T435.19) the Accused said that he, Daryl and Alan Douglas had keys to the shed and he knew not who else might have a key. If the Crown case were based on the Accused's sub-letting the chicken shed to Alan Douglas and permitting him or suffering him to manufacture prohibited drugs then that was not been established beyond reasonable doubt either. The Accused's evidence is that he did not give a key to Douglas who had one and no evidence about keys was given by Daryl Galway other than that he gave a key to the Accused. The Crown did not seek to establish the payment of any rent or the like by a third party to the Accused. There was no cross-examination of him about any economic matters nor evidence of economic matters, other than of the cash found at Grose Wold. 110Another deficiency in the Crown case is that no attempt was made to implicate the Accused in the manufacture of MA and also the manufacture of MDMA. The Crown case was that the Accused was implicated in the clandestine laboratory and that both MA and MDMA were manufactured there, ergo the Accused was implicated in both the manufacture of MA and MDMA. That involves a non-sequitur: the Accused could have involved himself in the manufacture of one drug but not of the other. The Accused was a user of amphetamine so one could argue that he would have involved himself in the manufacture of MA but there is no evidence that the Accused used MDMA. It might be otherwise if, for example, the Accused's fingerprints were found on vessels involved in the manufacture of MA and also on vessels involved in the manufacture of MDMA, but there was, as I pointed out at [102] above no chemical testing of the four items on which the Accused's fingerprints were found. 111Finally I ought to say that no consideration of the five different grounds relied upon by the Crown to support the Leppington charges, considered collectively, persuades me beyond reasonable doubt of his guilt of those charges. Verdicts Count 1 112Between 1 January 2008 and 27 November 2008 at Grose Wold in the State of New South Wales, manufactured a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that prohibited drug and exposed a child, namely Teeka Cole-Galway, to the manufacturing process. Verdict: Not guilty. Count 1A Between 1 January 2008 and 27 November 2008 at Grose Wold in the State of New South Wales, did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that prohibited drug and exposed a child, namely Teeka Cole-Galway, to the manufacturing process. Verdict: Not guilty. Statutory alternative count Between 22 November 2008 and 26 November 2008 at Grose Wold in the State of New South Wales did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine. Verdict: Guilty. Count 4 On 27 November 2008 at Grose Wold in the State of New South Wales, had in his possession 79.26 grams of pseudoephedrine, a precursor intended by him for use in the manufacture by him of a prohibited drug, namely methylamphetamine. Verdict: Not guilty. Count 5 On 27 November 2008 at Grose Wold, in the State of New South Wales, did supply a prohibited drug, namely ketamine in an amount which was not less than the commercial quantity applicable to that prohibited drug. Verdict: Not guilty. Count 6 Between 1 July 2006 and 26 November 2008 at Leppington, in the State of New South Wales, manufactured a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that prohibited drug. Verdict: Not guilty. Count 6A Between 1 July 2006 and 26 November 2008 at Leppington, in the State of New South Wales, did knowingly take part in the manufacture of a prohibited drug namely methylamphetamine in an amount not less than the large commercial quantity applicable to that prohibited drug. Verdict: Not guilty. Count 7 Between 1 July 2006 and 26 November 2008 at Leppington, in the State of New South Wales, manufactured a prohibited drug, namely 3, 4 methylenedioxymehtylamphetamine, in an amount not less than the large commercial quantity applicable to that prohibited drug. Verdict: Not guilty. Count 7A Between 1 July 2006 and 26 November 2008 at Leppington, in the State of New South Wales did knowingly take part in the manufacture of a prohibited drug, namely 3, 4 methylenedioxymehtylamphetamine in an amount not less than the large commercial quantity applicable to that prohibited drug. Verdict: Not guilty. Crown: P J McGrath Esq. instructed by the Director of Public Prosecutions. Defence: G D Wendler Esq. with W Chan Esq. instructed by Van Houten Lawyers. ********** 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: 07 February 2014