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Court of Criminal Appeal 8 October 2001

R v El Azzi

[2001] NSWCCA 397

Also reported as 125 A Crim R 113
DrugsPublic order & justice offences
APPEAL AGAINST INTERLOCUTORY JUDGMENT ABUSE OF PROCESS CONSPIRACY TO COMMIT THE IMPOSSIBLE

Citation: R v El Azzi [2001] NSWCCA 397
Court: NSW Court of Criminal Appeal
Date: 8 October 2001
Judge(s): Mason P, Levine J, Howie J

Background

The applicant had been arraigned in the District Court on three counts. The first alleged that he knowingly took part in the manufacture of methylamphetamine. The second and third alleged that he conspired with others to manufacture methylamphetamine at Dooralong and Sylvania Waters respectively, both ventures having been cut short by police raids before any drug could be produced.

At the heart of the second and third counts was a complicating fact: the chemicals supplied for the manufacturing attempts were not capable of producing methylamphetamine. The applicant had originally faced substantive charges in relation to those two episodes, but those charges were withdrawn in the Local Court. He was later charged with conspiracy in their place.

The applicant applied to the District Court for a permanent stay of the second and third counts on the basis that the proceedings were an abuse of process. Judge Hock refused the stay. The applicant then sought leave to appeal against that interlocutory decision under s 5F of the Criminal Appeal Act 1912.

  • Whether the conspiracies alleged in counts two and three were capable of constituting a criminal offence, given that the precursor chemicals supplied could not in fact produce methylamphetamine ("conspiracy to commit the impossible")
  • Whether the prosecution of the applicant on conspiracy charges was unfair in all the circumstances, including the earlier withdrawal of substantive charges
  • Whether the District Court judge erred in her exercise of discretion to refuse the permanent stay

Decision

On the question of legal impossibility, Howie J (with whom Mason P and Levine J agreed) found that a conspiracy to manufacture a prohibited drug does not fail merely because, unknown to the conspirators, the manufacturing attempt was doomed to fail. The applicant and his alleged co-conspirators had agreed to manufacture methylamphetamine and taken steps toward that end. The fact that the chemicals provided could not yield the drug was a circumstance unknown to them and did not negate the existence of the conspiracy. The count alleged a conspiracy to manufacture the drug, not a conspiracy to supply particular chemicals, and on that characterisation the charge was legally open to the Crown.

Howie J distinguished the earlier decision in R v McCoy, where conspiracy charges had been found to be misconceived on particular facts, and concluded that the present indictment did not fall into the same error. The Court held that Judge Hock had correctly identified the nature of the alleged conspiracies and had not erred in the exercise of her discretion to refuse the stay.

On the unfairness ground, the Court found no sufficient basis for a stay. The withdrawal of the earlier substantive charges and their replacement with conspiracy charges did not demonstrate that the applicant was misled into believing the prosecution had ended, nor that he had suffered any prejudice from the delay or change in charge. The Court noted that the impossibility of completing the manufacture might bear on sentence as a mitigating factor, but did not make the prosecution itself unfair or oppressive.

The Court also declined to receive additional material or entertain a fresh ground for a stay that had not been raised before Judge Hock. As this was not a rehearing, the appeal could only succeed by demonstrating error on the material before the primary judge. No such error was established.

Orders Made

  • The application for leave to appeal is refused.

Key Takeaways

  • A conspiracy to manufacture a prohibited drug can be made out even where, unknown to the conspirators, the chemical precursors supplied were incapable of producing the drug. The agreement and steps taken toward manufacturing are the core of the offence.
  • Under s 5F of the Criminal Appeal Act 1912, an interlocutory appeal against the refusal of a stay is not a rehearing. Error must be demonstrated on the material before the primary judge before the Court of Criminal Appeal will interfere.
  • No error was established in Judge Hock's characterisation of the conspiracy charges or in her exercise of discretion to refuse a permanent stay of proceedings.
  • The withdrawal of substantive charges and subsequent prosecution on conspiracy charges does not, without more, render proceedings an abuse of process. The absence of demonstrated prejudice or misleading conduct was significant.
  • The fact that a manufacturing attempt was impossible may be relevant to mitigation at sentence, but does not necessarily reduce the criminality of the accused who acted in ignorance of that impossibility.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 24, 26
- Criminal Procedure Act 1986 (NSW), s 47

Cases:
- R v McCoy [2001] NSWCCA 255
- R v Glossop [2001] NSWCCA 165
- BWM (1997) 91 A Crim R 260
- Mok (1987) 27 A Crim R 438
- Checconi (1988) 34 A Crim R 160
- McCready (1985) 20 A Crim R 32
- DPP v Nock [1978] AC 979
- R v Barbouttis (1995) 37 NSWLR 256
- Walton v Gardner (1993) 177 CLR 378
- Ridgeway v The Queen (1995) 184 CLR 19
- R v Kingswell [1984] 3 NSWLR 273
- Kapeliotis and Mari (1995) 82 A Crim R 300
- R v Smith [1975] AC 476
- R v Shivpuri [1987] 1 AC 1
- R v Mai (1992) 26 NSWLR 371
- R v Sew Hoy [1994] 1 NZLR 257
- Maxwell v HM Advocate [1980] SLT 241
- Howard Smith Paper Mills Ltd v The Queen (1957) 8 DLR 2d 449
- R v Murray [2001] NSWCCA 289
- R v Smith [1995] 1 VR 10