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Supreme Court 17 February 2011

R v Mark William Standen

[2011] NSWSC 1038

DrugsPublic order & justice offences
CRIMINAL LAW ABUSE OF PROCESS

Citation: R v Mark William Standen [2011] NSWSC 1038
Court: Supreme Court of New South Wales
Date: 17 February 2011
Judge(s): James J

Background

The accused was a former Assistant Director of Investigations of the NSW Crime Commission. He faced a three-count indictment alleging that, between January 2006 and June 2008, he conspired to import a commercial quantity of pseudoephedrine (a precursor used in manufacturing illicit drugs), knowingly took part in the supply of a large commercial quantity of pseudoephedrine, and conspired to pervert the course of justice to shield the importation from prosecution.

The first and third counts arose under Commonwealth law. The second count arose under State law, specifically section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). All three counts were brought by the Commonwealth Director of Public Prosecutions on the same indictment. No pseudoephedrine was actually imported, and the alleged co-conspirator Jalalaty never obtained possession of any.

Shortly before the trial was set to commence, the accused applied to have the second and third counts permanently stayed as an abuse of process. The application in relation to the third count was later withdrawn. The judgment addresses only the application to stay the second count.

  • Whether joining a State law charge (count 2, under the Drug Misuse and Trafficking Act 1985 (NSW)) on the same indictment as two Commonwealth charges constituted an abuse of process.
  • Whether counts 1 and 2 were so substantially overlapping in their factual foundations and legal elements that including both amounted to oppression or an improper use of the court's process.
  • Whether any alleged criminal conduct fell within count 2 that was not already captured by count 1, thereby providing a legitimate basis for the inclusion of count 2.

Decision

James J dismissed the application to stay count 2. His Honour found that the inclusion of a State law charge on the same indictment as Commonwealth charges was not, without more, an abuse of process. The court examined the factual basis for each count carefully and concluded that there was some alleged criminal conduct attributable to the accused that would fall within count 2 but not within count 1.

The accused's principal argument was that the two charges were so substantially overlapping in evidence and factual foundation that prosecuting both was oppressive. His Honour acknowledged the considerable overlap, and accepted that virtually the same evidence would be admissible on both counts. However, he found that the charges addressed different aspects of the accused's alleged conduct, and that count 2 was not simply a redundant addition.

On the question of maximum penalties, the accused pointed to the disparity (25 years for count 1 versus life imprisonment for count 2) as a reason to infer improper prosecutorial purpose. The Crown argued the reverse. James J found these competing arguments largely offset each other, and declined to treat count 1 as obviously the "principal offence" in the way that might attract concern under the principle discussed in Nahlous v R.

His Honour expressly noted that if convictions were recorded on both counts, sentencing would require great care to avoid double punishment. He declined to certify the interlocutory ruling as appropriate for appeal, but remarked that it was highly desirable for the composition of the indictment to be resolved before trial commenced.

Orders Made

• The application that the second count be stayed as an abuse of process is dismissed.

Key Takeaways

  • Joining a State law charge with Commonwealth charges on a single indictment does not constitute an abuse of process merely because of that combination, provided there is a legitimate forensic basis for each count.
  • Where some alleged criminal conduct falls within one charge but not the other, the prosecution may have a proper basis for including both counts, even when the evidentiary overlap is extensive.
  • The principle from Pearce v The Queen (1998) 194 CLR 610, concerning double punishment arising from overlapping charges, does not automatically require the exclusion of one charge at the indictment stage, but it does place significant obligations on the sentencing court if convictions are recorded on both.
  • A difference in maximum penalties between two overlapping charges is not determinative of whether inclusion of both is an abuse of process, particularly where neither charge can be characterised as plainly subordinate to the other.
  • Under section 5F(3) of the Criminal Appeal Act, an accused may appeal against an interlocutory ruling only with leave of the Court of Criminal Appeal or a certificate from the trial judge. James J declined to certify, leaving the matter for any appeal court to consider separately.

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code 1995, ss 5.2, 11.5, 307.11
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(2)
- Commonwealth Crimes Act, ss 19B(1)(c), 42
- Crimes Act (NSW), ss 33, 110
- Customs Act, s 233B(1)(b)
- Criminal Appeal Act, s 5F(3)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Nahlous v R [2010] NSWCCA 58
- Blay v The Queen [2006] WASCA 248; 205 FLR 414
- R v Stevens (1991) 23 NSWLR 75
- R v Campbell (2008) 73 NSWLR 272
- Thorn v R [2009] NSWCCA 294
- Schembri v R [2010] NSWCCA 149
- Kinchela v R [2010] NSWCCA 167
- Hinchcliffe v R [2010] NSWCCA 306
- R v Slatinec [1999] NSWCCA 2
- Environment Protection Authority v Australian Iron & Steel (1992) 28 NSWLR 502
- Einfeld v R (2008) 51 MVR 200; [2008] NSWCCA 215
- R v Dudko (2002) 132 A Crim R 371