Citation: Standen v Commonwealth Director of Public Prosecutions [2011] NSWCCA 187
Court: NSW Court of Criminal Appeal
Date: 4 March 2011
Judges: Hodgson JA; Adams J; Hall J
Background
The applicant, a former senior investigator at the NSW Crime Commission, faced a three-count indictment. The charges alleged that he conspired to import a commercial quantity of pseudoephedrine (a drug precursor) into Australia, that he knowingly participated in an attempt to supply a large commercial quantity of pseudoephedrine, and that he conspired to pervert the course of justice. The prosecution alleged that he used his law enforcement knowledge and contacts to assist a co-accused, Jalalaty, throughout the scheme.
Crucially, no pseudoephedrine was ever actually imported. A shipment of rice arrived in Australia without the concealed drugs, and Jalalaty never obtained possession of any pseudoephedrine. Nevertheless, authorities had placed the participants under covert surveillance and recorded numerous conversations between the applicant and Jalalaty.
The applicant applied before the primary judge (James J) to have Count 2 (the supply charge under the NSW Drug Misuse and Trafficking Act 1985, carrying a maximum sentence of life imprisonment) permanently stayed as an abuse of process. He argued it captured no criminality beyond what was already covered by Count 1 (the Commonwealth conspiracy charge, carrying a maximum of 25 years imprisonment). James J dismissed that application, and the applicant sought leave to appeal under s 5F of the Criminal Appeal Act 1912.
Legal Issues
- Whether the inclusion of Count 2 alongside Count 1 constituted an abuse of process on the basis that Count 1 already captured all of the applicant's alleged criminality
- Whether any remnant of criminality existed under Count 2 that was not necessarily encompassed by Count 1
- Whether prosecuting both counts together was oppressive, such that a permanent stay was warranted
- Whether there was a reasonable possibility of different jury verdicts on the two counts
Decision
The Court of Criminal Appeal dismissed the application for leave to appeal, upholding James J's refusal to stay Count 2. The central question was whether the criminality alleged in Count 1 fully encompassed the criminality alleged in Count 2, leaving nothing additional for Count 2 to address. The court confirmed that a permanent stay of prosecution is an exceptional remedy, and the burden on an accused to obtain one is demanding.
The primary judge had identified specific evidence from recorded conversations between the applicant and Jalalaty that was capable of falling within Count 2 but not within Count 1. This included alleged advice the applicant gave about removing drugs from rice bags to avoid tracing, not speaking near containers, cleaning out warehouses, and moving drugs after delivery. That conduct related to the supply side of the operation within Australia, and a jury could reasonably conclude it was distinct from the conspiracy to import.
Hodgson JA, with whom Adams J and Hall J agreed, found no error in the primary judge's reasoning or conclusions. The court accepted that a lack of overlap between the formal elements of the two offences was not, by itself, determinative, but held that some evidence of conduct exclusive to Count 2 had been identified. Because a remnant of alleged criminality under Count 2 could be identified at the pre-trial stage, the precondition for a stay was not met.
Hall J added that the question was whether Count 1's criminality genuinely encompassed Count 2's criminality, drawing on the reasoning in Thorne, Nahlous, and Jones; Hili. On that analysis, the applicant had not demonstrated that the prosecution of both charges together was oppressive.
Orders Made
No orders were made in this decision.
Key Takeaways
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A permanent stay of prosecution on the basis of duplicative counts is an exceptional remedy, and the accused bears a demanding burden to demonstrate that prosecuting both charges together is oppressive.
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Where any identifiable remnant of alleged criminality under a second count falls outside the scope of the first count, a stay of the second count will ordinarily not be granted, even if the two charges arise from substantially the same factual background.
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The absence of formal element overlap between charges drawn from different legislative sources (here, a Commonwealth Criminal Code offence and a NSW Drug Misuse and Trafficking Act offence) is not, on its own, sufficient to resolve the abuse of process question.
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In refusing the stay, the Court of Criminal Appeal confirmed that the relevant test focuses on whether the criminality of the first charge genuinely encompasses the criminality of the second, consistent with Thorne v Regina, Nahlous v R, and Regina v Jones; Regina v Hili.
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Recorded conversations containing evidence of conduct specific to post-importation supply activities (such as advice about concealment and disposal of drugs within Australia) can constitute sufficient grounds to distinguish a supply count from a conspiracy to import count at the pre-trial stage.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), 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 (NSW), ss 3, 6, 25
- Crimes Act 1914 (Cth), s 42 (conspiracy to pervert the course of justice)
Cases
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Nahlous v R [2010] NSWCCA 58
- Thorne v Regina [2009] NSWCCA 294
- Regina v Jones; Regina v Hili [2010] NSWCCA 108
- Regina v Milne (No 1) (unreported, 19 August 2010)
- R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272
- R v El Helou [2010] NSWCCA 111
- 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