Citation: R v Williams [2018] NSWDC 431
Court: District Court of New South Wales
Date: 19 October 2018
Judge(s): Judge S Norrish QC
Background
The accused faced an indictment containing three counts. Counts 1 and 2 alleged supply of prohibited drugs (anabolic steroids oxymetholone and methandienone respectively) under the Drug Misuse and Trafficking Act 1986 (NSW). The third count, relating to cannabis supply, was not the subject of the application.
Prior to this prosecution, the accused had pleaded guilty in the Local Court to charges of importing prohibited imports under Commonwealth law. Those importation charges arose from the same two consignments of steroids that now underpinned the State supply charges.
The accused applied for a permanent stay of proceedings in respect of counts 1 and 2, arguing that prosecuting her for State supply offences after she had already pleaded guilty to Commonwealth importation offences constituted an abuse of process. A secondary question concerning the admissibility of a recorded interview was to be addressed after the stay application.
Legal Issues
- Whether the District Court has jurisdiction to permanently stay proceedings as an inferior court without inherent jurisdiction.
- Whether the State supply charges constituted an abuse of process following the accused's prior guilty pleas to related Commonwealth importation offences.
- Whether a lack of particularity in count 1 of the indictment produced unfairness warranting a stay.
- Whether there was constitutional inconsistency between the Commonwealth Criminal Code Act 1995 and the Drug Misuse and Trafficking Act 1986 (NSW).
- Whether the definition of "import" in s 300 of the Criminal Code was broad enough to encompass conduct required to prove supply under State law, such that the State prosecution was duplicative or gave rise to issue estoppel.
Decision
Jurisdiction to stay: The District Court confirmed it has jurisdiction to order a permanent stay of proceedings to prevent an abuse of its processes, notwithstanding that, as an inferior court, it lacks inherent jurisdiction. The court relied on Jago v District Court of New South Wales (1989) 168 CLR 23 and the line of authority that followed it (at [3]).
Lack of particularity: The court rejected the submission that count 1 was so lacking in particularity as to create unfairness warranting a stay. The Crown case statement did not disclose the kind of "rolling up" of criminal acts condemned in Walsh v Tattersall (1996) 188 CLR 77, and the admissibility of contextual telephone intercepts was a trial management matter, not one affecting the validity of the indictment (at [15]-[17]).
Constitutional inconsistency: The court found no constitutional inconsistency between the Commonwealth legislation and the Drug Misuse and Trafficking Act in relation to these charges. Consistent with the NSW Court of Criminal Appeal decisions in Stevens and R v El Helou [2010] NSWCCA 111, the State supply offences addressed different conduct from the Commonwealth importation offences, and s 109 of the Constitution was not engaged (at [21]-[28]).
Abuse of process and issue estoppel: The court held that the elements of the supply offences under the State Act encompassed a much wider range of conduct than mere importation under Commonwealth law (at [38]-[39]). Proof of importation was only one step toward proving supply; the Crown case depended heavily on evidence of the accused's own discussions in which she allegedly offered or agreed to supply the drugs to persons in custody (at [43]-[44]). The inclusive definition of "import" in s 300 of the Criminal Code extended the reach of that term beyond the basic importation conduct but did not render the State charges duplicative. Even on the accused's broadest reading of that definition, the conduct alleged under counts 1 and 2 overlapped with but remained additional to the importation conduct already the subject of the guilty pleas (at [48]-[52]). No issue estoppel or abuse of process arose, and the stay application was refused (at [52]-[53]).
Orders Made
- Application for permanent stay of proceedings denied.
Key Takeaways
- The District Court confirmed that an inferior court possesses jurisdiction to permanently stay proceedings to prevent an abuse of process, following the High Court's reasoning in Jago, even though it lacks the inherent jurisdiction of a superior court (at [3]).
- No constitutional inconsistency arises under s 109 of the Constitution merely because State drug supply charges and Commonwealth importation charges relate to the same consignment of drugs. The offences address materially different conduct (at [21]-[28]).
- Where the elements of a State supply offence require proof of a substantially wider range of conduct than a Commonwealth importation offence, prior guilty pleas to the importation charges do not give rise to issue estoppel or render the subsequent State prosecution an abuse of process (at [38]-[42]).
- The inclusive definition of "import" in s 300 of the Criminal Code Act 1995 (Cth) extends the reach of importation offences beyond the moment goods arrive in Australia but does not thereby absorb or duplicate the elements of supply offences under State law (at [48]-[52]).
- Proof of importation alone cannot establish guilt for a supply offence under the Drug Misuse and Trafficking Act 1986 (NSW). Additional conduct elements, such as offering, agreeing to supply, or possessing for the purpose of supply, remain independently required (at [43]-[44]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Criminal Code Act 1995 (Cth)
- Drug Misuse and Trafficking Act 1986
Cases
- Campbell v R (2008) 73 NSWLR 272
- R v El Helou [2010] NSWCCA 111
- Jago v District Court of New South Wales (1989) 168 CLR 23
- Pearce v R [1998] 194 CLR 610
- R v Tranter [2013] SASCFC 61
- Spautz v Williams (1992) 175 CLR 509
- Standen v Commonwealth DPP [2011] NSWCCA 187
- Walsh v Tattersall (1996) 188 CLR 77
- Walton v Gardiner (1993) 177 CLR 378