Citation: Standen v Commonwealth Director of Public Prosecutions [2011] NSWCCA 187
Court: Court of Criminal Appeal
Date: 4 March 2011
Judge(s): Hodgson JA; Adams J; Hall J
Background
The applicant was a former Assistant Director of Investigations at the NSW Crime Commission. He faced three counts on indictment: conspiracy to import a commercial quantity of pseudoephedrine (a border controlled precursor) under the Commonwealth Criminal Code; knowing participation in an attempt to supply a large commercial quantity of pseudoephedrine under the NSW Drug Misuse and Trafficking Act; and conspiracy to pervert the course of justice. The prosecution alleged that he used his law enforcement knowledge and contacts to assist a co-conspirator, Jalalaty, to import the drug concealed in a rice shipment. No pseudoephedrine was actually imported, and the co-conspirator never took possession of any.
The applicant applied to the primary judge (James J) to have the second count permanently stayed as an abuse of process. He argued that the criminality alleged against him was entirely captured by the first count, making the second count oppressive. James J dismissed that application on 17 February 2011.
The applicant then sought leave to appeal that interlocutory ruling under section 5F of the Criminal Appeal Act 1912.
Legal Issues
- Whether charging both Count 1 (conspiracy to import a border controlled precursor) and Count 2 (knowing participation in supply of a prohibited drug) amounted to an abuse of process, on the basis that the two counts were in substance the same offence.
- Whether any criminality alleged under Count 2 fell outside the criminality captured by Count 1.
- Whether there was any realistic possibility of different jury verdicts on the two counts, given their different elements.
- Whether the primary judge erred in finding that some of the applicant's alleged conduct fell within Count 2 but not Count 1.
Decision
Ground 1: Whether Count 2 duplicated the criminality in Count 1
Hodgson JA, with whom Adams J and Hall J agreed, held that the elements of the two offences were clearly different. Count 1 required proof of a conspiracy to import a border controlled precursor (pseudoephedrine specifically, as a Commonwealth law concept). Count 2 required proof that the applicant knowingly took part in Jalalaty's attempt to possess a large commercial quantity of a prohibited drug for supply (a State law concept). The applicant's submission that all relevant criminality was captured by Count 1 was not accepted.
Hodgson JA found that the evidence suggested the applicant assisted not only in bringing about the importation but also in arranging what would happen to the substance after it arrived in Australia, including advice about removing drugs from packaging, avoiding listening devices, and cleaning warehouses. While those acts might arguably be characterised as being in furtherance of the conspiracy to import, their more direct connection was to the supply aspect of the agreement. That supply-related criminality was not necessarily encompassed within Count 1.
Ground 2: Whether different jury verdicts were a realistic possibility
The court was not satisfied that the possibility of different verdicts could be dismissed. In particular, Hodgson JA identified a realistic possibility that a jury could find the applicant knew the substance was some type of prohibited drug (sufficient for Count 2) without being satisfied beyond reasonable doubt that he knew it was pseudoephedrine or a border controlled precursor (as required for Count 1). Adams J similarly observed that the type of drug required to be proven differed between the counts, making different verdicts distinctly possible.
Ground 1(a): Reliance on Nahlous and the "principal offence" principle
The court distinguished this case from Nahlous v R [2010] NSWCCA 58, where the Court of Criminal Appeal had found an abuse of process in charging a seller of decoders separately with receiving the money from the same sale. In Nahlous, there was no possibility at all of one conviction without the other, and one offence was plainly subsidiary to the other. Here, neither the importation nor the supply could be characterised as purely incidental or subsidiary to the other. Both addressed substantive criminality. Accordingly, the court declined to apply the Nahlous reasoning to require a stay.
Overall conclusion
The court refused leave to appeal. The inclusion of Count 2 was not vexatious, not for any improper purpose, and not oppressive. Hall J added that a permanent stay is an exceptional remedy and that the applicant bore a demanding burden to show, in advance of trial, that no remnant of criminality under Count 2 remained once Count 1 was accounted for. That burden was not met. All three judges noted that if convictions were entered on both counts, sentencing would require careful attention to the principles in Pearce v The Queen to avoid double punishment, but that difficulty did not render the indictment an abuse of process.
Orders Made
- The application for leave to appeal under section 5F is refused.
- No publication of the section 5F proceedings, or of the court's reasons and orders, until the conclusion of the trial.
Key Takeaways
- Charging an accused with both a Commonwealth importation conspiracy offence and a State supply offence in relation to the same drug transaction is not automatically an abuse of process, even where the same body of evidence is admissible on both counts.
- A permanent stay for abuse of process is an exceptional remedy. An accused seeking it must demonstrate, in advance of trial, that no remnant of criminality under the additional charge exists beyond what is captured by the primary charge.
- Where the elements of two offences differ materially, and there is a realistic (not merely theoretical) possibility of different jury verdicts, neither count can be characterised as purely subsidiary to the other so as to make dual charging oppressive.
- The Court of Criminal Appeal distinguished Nahlous v R, which concerned a situation where the subsidiary offence added nothing to the principal offence's criminality and different verdicts were impossible. That reasoning does not extend to cases where each charge addresses a genuinely distinct aspect of the alleged criminal conduct.
- Difficulty in sentencing on multiple counts, particularly reconciling different maximum penalties and applying the totality principle from Pearce v The Queen, does not of itself make a multi-count indictment an abuse of process.
Legislation and Cases Referenced
Legislation
- Copyright Act 1968 (Cth) ss 135ASB(1) and 135ASC(1)
- Criminal Appeal Act 1912 s 5F
- Criminal Code 1995 (Cth) ss 11.5, 300.2, 300.4, 307.11, 307.12, 314.6, 400.6
- Drug Misuse and Trafficking Act 1985 ss 3, 6, 25
Cases
- Blay v R [2006] WASCA 248; (2006) 205 FLR 414
- Conway v The Queen [2000] FCA 461
- Environment Protection Authority v Australian Iron and Steel Pty Limited (1992) 28 NSWLR 502
- R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272
- R v El Helou [2010] NSWCCA 111
- Regina v Jones; Regina v Hili [2010] NSWCCA 108
- Regina v Milne (No 1) (unreported, 19 August 2010)
- Nahlous v R [2010] NSWCCA 58
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Thorne v Regina [2009] NSWCCA 294