By Paul Gregoire and Ugur Nedim
At around 11pm on 30 June 2000, David Spicer was stopped for a random breath test on Devlin Road in Londonderry, north western Sydney. The 42-year-old man got out of his car and produced his driver licence. The result of the breath test was negative.
On being questioned about the Nissan Bluebird sedan he was driving, Mr Spicer said it was owned by a woman named Debbie. He said she had called and asked him to pick up the car to fix the clutch. He added that he did not know where Debbie lived. But that was a lie.
On the following day, Debbie told officers at the local police station that Spicer had gone to her house to ask if he could borrow the car. She had never mentioned anything about the clutch.
After conducting the breath test, Senior Constable Hawthorne decided to inspect the vehicle and found a “glass ball with some liquid in it” in addition to “a virtually complete methamphetamine laboratory.”
Cooking up
Forensic chemist Mr V Murtagh was brought to Penrith police station to inspect the contents of the vehicle.
Murtagh informed police that the usual way to manufacture methamphetamine was to start by extracting pseudoephedrine from pills through a process of adding methylated spirits, which results in a residue of ethanol. The pyrex jugs found in the boot of Debbie’s car contained traces of these substances.
The next step in the process is boiling off the methylated spirits. Hydriodic acid is then added to the dry pseudoephedrine to make ice. The acid is produced by combining hypophosphorous and iodine. The finished acid and the two components were also present in the vehicle.
The distillation stage comes next. Caustic soda is added to neutralise the acid and produce oil. And again, glassware suitable for this purpose was found.
The final step is crystallisation. A quantity of liquid methamphetamine was also in the car, with a hotplate and an oven that could be used to heat the solution. The only thing missing to complete the process was hydrochloric acid, which is used to turn the liquid into crystal form.
Mr Murtagh explained that in its liquid state, the drug was not ready for sale. The court later heard that the liquid that was found could have been converted into 2.77 kilograms of crystal methamphetamine, with a street value of $277,000.
The District Court
Mr Spicer’s case proceeded to a jury trial in the NSW District Court in 2001, where he was found guilty on two charges. The first charge was drug manufacturing under section 24 of the Drug Misuse and Trafficking Act 1985 (the DMT Act) for
The second charge was deemed supply of a prohibited drug. Under section 29 of the DMT Act, if a person is found with a traffickable quantity of a prohibited drug, they are ‘deemed’ (or presumed) to have supplied the drug unless they can persuade a court, on the balance of probabilities, that they had the drug in their possession for a purpose other than supply.
As the total quantity of methylamphetamine found was approximately 5 kilograms – or greater than the large commercial quantity – a maximum penalty of life imprisonment and/or a $550,000 fine applied.
The District Court judge sentenced Mr Spicer to four years with a non-parole period of two years and sixth months for each offence. And the sentences were to be served concurrently.
The meth lab was just sitting there
Mr Spicer appealed his conviction to the NSW Court of Criminal Appeal (NSWCCA).
The court heard that Mr Spicer’s income was based on a carer’s pension, which he supplemented by scavenging items and reselling them.
According to Spicer, on the day of his arrest he’d borrowed the vehicle to move a TV. In the evening, he drove out to an area where he’d been scavenging that day, and filled up the vehicle with discarded items that he found.
The reason why he lied about having to fix the clutch of the car was that he was trying to conceal the fact that he might have been seen to have stolen some of the items, Spicer said. He claimed to have been unaware of being in possession a full meth lab.
His lawyers argued that the trial judge failed to adequately explain what was involved in knowingly taking part in the manufacture of a drug, and that the evidence was not sufficient to prove that he had done so.
They submitted that Mr Spicer was simply transporting the drugs in his car. He was not involved in the process of making them and could not therefore be guilty of the charge.
Defective reasoning
In his judgment in 2003, Justice Smart of the NSWCCA noted that the prosecution was required to prove beyond reasonable doubt that Mr Spicer had been involved in making the drugs. He found that the trial evidence did not establish this essential element to the required standard – it only proved he had been transporting the drugs.
The justice found that the trial judge had failed to make a distinction in his directions to the jury between making the drugs and transporting them. This, Justice Smart remarked, was clear in the trial judge’s statement, “so if you find that the accused knowingly took part in the transportation knowing that it was the prohibited drug… then it will be open to you to find him guilty.”
Having reached the view that “[t]he evidence fell short of establishing that the appellant knowingly took part in the process of manufacture,” Justice Smart overturned the conviction for manufacturing.
However, the supply conviction still remained, as the extended definition of supply covers transportation.
“Exceptionally powerful subjective features”
The sentencing procedure after trial was found to be at fault as well. The trial judge had fallen ill and another judge had taken over the task of sentencing Mr Spicer. The sentencing judge was not provided with all the evidence, as some medical reports had been misplaced.
David Spicer was the sole carer for his wife, daughter and his mother – all of whom were seriously ill. His daughter suffered seizures and had to be monitored. Her sick mother was too small and ill to adequately look after the girl. And Mr Spicer’s mother was terminally ill.
Without Mr Spicer, these women were stuck at home unable to make it to the medical appointments or the hospital as none of them could drive.
The sentencing judge was unaware of these “exceptionally powerful subjective features”, Justice Smart remarked. His Honour found that the sentence of four years for supply was “manifestly excessive.” By the same token, he noted it remained important not “to lose sight of the objective gravity of the case.”
His Honour said that even if he hadn’t quashed the first verdict, he would still have “intervened on the question of sentence,” due to the special circumstances of the case. The judge quashed the second sentence and resentenced Mr Spicer to three years in prison with a non-parole period of 21 months.
