R v Ahmed [2007] VSCA 270

Court of Appeal (Vic)|2007-12-04|Before: BUCHANAN and NETTLE JJA and WHELAN AJA

Criminal Law - Trafficking in drugs of dependence - Pills and powder containing a mixture of drugs - Counts broke down mixtures into component drugs - Counts duplicated offending - Quantities of drugs present in a mixture to be aggregated - Plea of guilty - Appeal against conviction allowed - Miscarriage of justice - Applicant re-sentenced to a total effective sentence of 17 years' imprisonment with a minimum term of 13 years' imprisonment - Drugs, Poisons and Controlled Substances Act 1981 (No 9719), ss 71, 71AA.

2 The applicant was charged under the Drugs, Poisons and Controlled Substances Act 1981 ('the Act') and was released on bail. On 16 August 2004 the applicant was arrested in the course of arranging a drug transaction from his car. A search of the car revealed 3,000 ecstasy tablets. This discovery led to further charges under the Act.

3 The circumstances in which those events took place were revealed by surveillance evidence and intercepted telephone conversations. The applicant manufactured the drugs for sale using a hydraulic steel pill press and was engaged in transactions involving the transfer of money interstate and abroad.

4 The applicant was arraigned in the County Court and pleaded guilty to the counts in two presentments. The first presentment concerned the drugs found on 28 September 2003. The presentment contained six counts, each alleging trafficking in a drug of dependence between 8 August, the date of the first intercepted telephone conversation, and 28 September 2003. Count 1 alleged trafficking in a large commercial quantity of MDMA, commonly called ecstasy, count 2 trafficking in a large commercial quantity of methylamphetamine, count 3 trafficking in a large commercial quantity of amphetamine, count 4 trafficking in a commercial quantity of dimethylamphetamine, count 5 trafficking in ketamine and count 6 possession of cocaine. The second presentment concerned the drugs found on 16 August 2004. There were four counts, each alleging that the applicant trafficked in a drug of dependence on 16 August 2004. Count 1 alleged trafficking in methylamphetamine, count 2 trafficking in a commercial quantity of ecstasy, count 3 trafficking in a commercial quantity of MDA and count 4 trafficking in ketamine.

5 After a plea, the applicant was sentenced on the counts in the first presentment to be imprisoned for terms of 16 years on count 1, 16 years on count 2, 16 years on count 3, 12 years on count 4, five years on count 5 and one month on count 6. On the counts in the second presentment the applicant was sentenced to be imprisoned for terms of seven years on count 1, 12 years on count 2, 12 years on count 3 and 12 years on count 4. The sentences for the counts in the first presentment were made concurrent, as were the sentences for the counts in the second presentment. It was directed that seven years of the sentence imposed in respect of the first presentment be served cumulatively upon the sentence imposed in respect of the second presentment, creating a total effective sentence of 23 years' imprisonment. A minimum term of 17 years' imprisonment was fixed.

6 By reason of his prior convictions,[1] the applicant was sentenced as a serious drug offender, pursuant to the provisions of Part 2A of the Sentencing Act 1991. The sentencing judge said that, notwithstanding the power to do so contained in s 6D of the Sentencing Act, he had determined not to impose a disproportionate sentence in order to protect the community from the applicant.

7 Although he pleaded guilty, the applicant sought leave to appeal against the convictions on all but count 6 in the first presentment on the ground that the manner in which the counts were framed resulted in the applicant being punished more than once for the same conduct.

8 A commercial quantity, a large commercial quantity and a trafficable quantity of a drug of dependence can be constituted by the weight of the drug alone exceeding a certain amount or the weight of the drug mixed with another substance exceeding another amount. The proportions of drug of dependence and other substance in a mixture are at large. Thus paragraph (c) of the definition of 'commercial quantity' in s 70 of the Act provides:**

In relation to a drug of dependence the name of which is specified in column 1 of Part 3 of Schedule Eleven -

(i) if that drug of dependence is contained in or mixed with another substance and the quantity of that mixture of drug of dependence and other substance is not less than the quantity specified in column 2A of that Part of that Schedule opposite to the name of that drug of dependence, means any amount of that drug of dependence; or

(ii) in any other case, means the quantity that is specified in column 2 of that Part of that Schedule opposite to the name of that drug of dependence ...

The quantities in column 2A are greater than the quantities in column 2. For example, the quantity of pure MDMA in column 2 is 100 grams while the quantity of a mixture of MDMA and another substance is 500 grams. A like distinction appears in the definitions of a 'large commercial quantity' and a 'trafficable quantity'.

**9 In the present case the prosecution relied upon the weights of mixtures of drugs of dependence and other substances and the weight of pure drugs in other mixtures to establish all but count 6 in the first presentment. The prosecutor told his Honour that 'What has been put down in count 1 ... is the MDMA (ecstasy) and then the ingredients.' The methylamphetamine the subject matter of count 2 was 'the component of methylamphetamine in the total number of or amount of ecstasy or MDMA that was found.' It appeared to be common ground at the plea that the cocaine the subject matter of count 6 in the first presentment stood apart, and no complaint is made about the conviction on this count in the grounds of the application for leave to appeal.

10 In broad terms the analysis by the prosecutor appears consistent with the contents of documents tendered at the opening of the plea. One of the documents was a certificate by a scientist, who analysed the items, principally tablets and powder, found on 28 September 2003. Although the overall weight of all the materials is not stated, the scientist certified that within items, being pills and powder, comprising 14.3 kilograms, there was a percentage of MDMA, within 13.9 kilograms of the items comprising the 14.3 kilograms there was a percentage of methylamphetamine, within 2.67 kilograms of the items comprising the 14.3 kilograms there was a percentage of amphetamine, within 831 grams of the items comprising the 14.3 kilograms there was a percentage of dimethylamphetamine and within 8.9 kilograms of the items comprising the 14.3 kilograms there was a percentage of ketamine. In the case of counts 1, 2 and 3 the prosecution relied on the weights of mixtures pursuant to column 2A and in the case of counts 4 and 5 the prosecution relied on the weights of pure dimethylamphetamine and ketamine. Another scientist provided a like analysis of the items found on 16 August 2004. He certified that the weights of the mixtures containing MDMA and MDA exceeded the amounts in column 2A and the weights of pure methylamphetamine and ketamine in the mixtures containing those drugs constituted trafficable quantities.

11 In the mixtures of drugs comprising the pills and powder, ecstasy predominated.

12 Accordingly, the prosecutor conceded that the sentences on counts 1 to 5 should be made concurrent. Similarly, the substances the subject matter of counts 1, 3 and 4 on the second presentment were components of the ecstasy the subject matter of count 2, and it was said that the sentences on those counts should be made concurrent.

13 In my view counts 1 to 5 in the first presentment duplicated the offending the subject matter of count 1, and counts 1, 3 and 4 in the second presentment duplicated the offending the subject matter of count 2.

14 The evidence of the applicant's activities indicated that he was manufacturing and dealing in pills containing all the drugs. The evidence did not suggest that the applicant had broken down or intended to break down the pills and powder into their constituent drugs and deal in pills each containing only one drug. Apart from count 6 in the first presentment, many of the drugs were present in the items making up the weight of the mixture constituting each count, albeit that in several counts the role of one of the drugs changed from being an added substance to that of a drug of dependence. In the case of counts 1, 2 and 3 in the first presentment and counts 2 and 3 in the second presentment, the presence of each drug was used to establish the existence of a commercial quantity or a large commercial quantity.[2]

15 The evidence of scientific analysis of the substances relied upon by the prosecutor enabled some of the counts to be supported by reference only to the quantity of one drug of dependence found in a mixture. Other counts relied upon the weight of a mixture. Further analysis may or may not have enabled counts to be based upon pure quantities. The Crown, however, elected to proceed upon the basis that, for the most part, the threshold quantities required to establish the offences were met by mixed substances.

16 In my view this method of dealing with the mixtures of drugs of dependence found in the possession of the applicant is not consonant with the Act. The Act contemplates that trafficking in a mixed substance will not lead to the commission of as many offences as there are drugs of dependence present in the mixture. Rather, the quantities of individual drugs of dependence in a mixture are to be aggregated. Section 71 of the Act provides:**

A person who, without being authorised by or licensed under this Act or the regulations to do so, traffics or attempts to traffic in a quantity of a drug of dependence or of two or more drugs of dependence that is not less than the large commercial quantity applicable to that of dependence or those drugs of dependence is guilty of an indictable offence ...

Similarly, s 71AA creates the offence of trafficking in a quantity of a drug of dependence or two or more drugs of dependence that is not less than the commercial quantity applicable to that drug or drugs.

17 Prior to 1997, trafficking offences were only defined in relation to the quantity of the particular drug of dependence trafficked. The Act did not permit mixed substances to be taken into account. In 1997 the definition of 'commercial quantity' was amended and column 2A was inserted in Part 3 of Schedule Eleven, allowing the quantity of a mixed substance trafficked by an offender to be used in determining whether the offender trafficked a commercial or traffickable quantity.[3] The general thrust of the amending Act was to align the penalties for drug trafficking with the commercial value of the drugs trafficked. In her second reading speech, the Attorney-General said:

Because the motivation for trafficking drugs is primarily economic profit, the level set for the different drugs in Schedule Eleven will reflect consistent monetary value or number of doses of a drug.

**18 In my view the aim of charging and punishing drug traffickers according to the scale of their commercial dealings is promoted by requiring offenders to be charged with offences that reflect the drugs they market. If a mixed substance can form the basis of multiple counts, it is likely that the counts will be disproportionate to the monetary value or number of doses of the drug trafficked. Another potential consequence of laying charges in this fashion is that those who traffic in drugs of dependence mixed together may be liable to be charged with a larger number of more serious offences than those who traffic in the same amounts of drugs in a pure form.

19 Accordingly, in my opinion it was inappropriate to record convictions other than for counts 1 and 6 on the first presentment and count 2 on the second presentment. The error was not cured by making the sentences concurrent. In Pearce v R[4] McHugh, Hayne and Callinan JJ said that it did matter that a single act was common to two offences even though an order was made that the sentences be served concurrently. Their Honours said:**

To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.[5]

**20 In my view we should grant leave to appeal, hear the appeal instanter and allow it and quash the convictions on counts 2 to 5 in the first presentment and counts 1, 3 and 4 in the second presentment, notwithstanding that the applicant pleaded guilty to all the counts on both presentments. An appeal against conviction by an offender who has pleaded guilty will be entertained if it appears that upon the admitted facts the accused could not in law have been convicted of the offence charged[6] or otherwise it appears that there has been a miscarriage of justice.[7] In my view there has been a miscarriage of justice in this case.[8] The applicant stood convicted of more offences than he had committed. That is apparent from the circumstances which emerged at the hearing of the plea. It is not necessary to investigate the events which induced the applicant to plead guilty.

21 The question which remains is the appropriate sentence to be imposed in respect of counts 1 and 6 in the first presentment and count 2 in the second presentment.

22 The applicant is now aged 41 years. He has made a career dealing in drugs of dependence. In 1989 he was convicted of cultivation and possession of cannabis, for which he received a good behaviour bond. In 1994 he was again convicted of cultivating and possessing cannabis and was fined $1,000. In 1995 he was convicted of importing cannabis resin into Australia and was sentenced to be imprisoned for a term of two years and six months. In 1999 he was convicted of possessing amphetamine and fined $600. In 2001 he was convicted of trafficking in cocaine and amphetamine and possessing ecstasy and cannabis, and was sentenced to be imprisoned for four years. At the time he committed the offences the subject matter of the first presentment, the applicant was on parole pursuant to this sentence.

23 The applicant was born in Tripoli and came to Australia at the age of six years. His upbringing explains his choice of career. The applicant's father was serving a term of imprisonment for drug trafficking at the time the applicant was sentenced. Two of his brothers have been convicted of drug offences. In a report which was tendered in the course of the plea a psychologist said that the applicant was exposed to a long and bitter separation and divorce by his parents when he was very young. He was moved from school to school and grew up in a culture promoted by his father that accustomed him to the use of and trafficking in drugs as an acceptable and normal way of life. The applicant learned from his father that he could obtain drugs when he needed them and could make money by trafficking in them.

24 The applicant completed year 12 at school and started an accountancy course, but did not complete it. He was married for the first time at the age of 19 years and has two children born of that marriage. The marriage ended in divorce, as did two subsequent marriages. It is not surprising that a doctor reported to the sentencing judge that the applicant was addicted to amphetamine.

25 In addition to the disadvantages of his upbringing and their effect on his later life, the applicant could also rely upon his pleas of guilty and a capacity to respond to the needs of others. As to the last, a letter from a barrister was tendered in the course of the plea. The barrister recounted the assistance which the applicant gave her when she suffered a stroke, which may well have saved her life, and his subsequent support and care of her.

26 On the other hand, the offences call for condign punishment. The maximum sentence for trafficking in a large commercial quantity of a drug of dependence is life imprisonment. A large commercial quantity of a mixture of a substance and MDMA is 1 kilogram. The applicant was in possession of pills and powder containing MDMA which weighed 14.3 kilograms. The maximum sentence for trafficking in a commercial quantity of a drug of dependence is 25 years' imprisonment and for trafficking simpliciter the maximum penalty is 15 years' imprisonment. The harm which drugs of dependence can inflict is well known. The applicant played a significant role in the trade which leads to the consumption of ecstasy. His trafficking was on a very large scale and was accompanied by all the trappings of a business. As I have said, in my view the trial judge erred in permitting the mixed pills and powder to be dismantled into their constituent drugs for the purpose of convicting the applicant on separate charges of trafficking in many drugs when he dealt in only one product. Nevertheless, the fact that the concoction in which he trafficked contained other drugs of dependence is to be taken into account in determining an appropriate sentence. Even allowing for the mitigating factors upon which the applicant can rely, principles of denunciation and personal and general deterrence require the imposition of sentences of substantial length.

27 Counsel for the applicant referred to a sentence of four years and six months' imprisonment imposed upon Colleen O'Reilly, the partner of the applicant, who was sentenced when she pleaded guilty to trafficking in the drugs the subject matter of the first presentment. The significance of this sentence is limited. O'Reilly had no prior convictions, was younger than the applicant, had a dependent, young daughter, was not on parole or on bail at the time of the commission of the offences and was not a serious offender when she was sentenced.

28 I would re-sentence the applicant to be imprisoned for a term of 14 years on count 1 in the first presentment, to a term of one month on count 6 in the first presentment and to a term of five years on count 2 in the second presentment. I would cumulate three years of the sentence imposed in respect of the second presentment upon the sentence imposed in respect of count 1 in the first presentment, creating a total effective sentence of 17 years' imprisonment. I would fix a minimum term of 13 years' imprisonment.

**29 I have had the considerable advantage of reading in draft the reasons for judgment of Buchanan JA. I agree with his Honour for the reasons that he gives that the application for leave should be allowed. I also agree that the applicant should be re-sentenced as his Honour proposes. I wish, however, to add some observations in support of his Honour's conclusion that it is not consonant with the Act for the Crown to charge an offender with separate counts of the kind which were preferred in this case.

30 Were it not for the words '2 or more drugs of dependence' in ss 71 and 71AA of the Drugs Poisons and Controlled Substances Act 1981, it would be possible to construe paragraph (c)(i) of the definition of 'commercial quantity' and paragraph (b)(i) of the definition of 'large commercial quantity' in s 70 of the Act as enabling the Crown to do what it did in this case (ie present an offender, who is found trafficking in a commercial quantity or large commercial quantity of a mixture containing two or more drugs of dependence, on as many counts of trafficking in a commercial quantity or large commercial quantity of a drug of dependence as there are drugs of dependence within the mixture).

31 Section 37 of the Interpretation of Legislation Act 1984 provides that, unless the contrary intention appears, words in the singular include the plural and vice versa. Therefore, but for the words '2 or more drugs of dependence' in ss 71 and 71AA, one might read the opening words of each section (scil 'A person who...traffics... in a quantity of a drug of dependence') as meaning: 'A person who...traffics... in a quantity of a drug of dependence or in quantities of drugs of dependence'. In turn that would engage paragraph (c)(i) of the definition of 'commercial quantity' or paragraph (b)(i) of the definition of 'large commercial quantity' in relation to each of the drugs of dependence found in the mixture, and so enable the course which the Crown followed in this case.

32 In my view, however, the words '2 or more drugs of dependence' in ss 71 and 71AA do imply a contrary intention. Taken in conjunction with the express provision in each of those sections for the 'commercial quantity' and 'large commercial quantity' 'applicable to those drugs of dependence', the effect of the words is that, if a mixture contains '2 or more drugs of dependence', one is directed to paragraph (d) of the definition of 'commercial quantity' (to the exclusion of (c)(i) of that definition) and to paragraph (c) of the definition of 'large commercial quantity' (to the exclusion of paragraph (b)(i) of that definition). In point of form, it is an uncommonly clear application of the technique expressed in the maxim expressio unius est exclusio alterius.[9]

33 The only question, perhaps, is whether the exclusion goes as far as preventing the Crown from selecting just one of the drugs in the mixture and presenting the offender on the basis of paragraph (c)(i) of the definition of 'commercial quantity', or paragraph (b)(i) of the definition of 'large commercial quantity', on a single count of trafficking in a commercial quantity or large commercial quantity of that one drug.

34 I do not construe the exclusion as going that far. The evident purpose of the legislation is to enable an offender to be charged in relation to a drug of dependence in a mixture by reference to the quantity of the mixture. So, in a case where there is only one drug of dependence within a mixture, the offender may be charged in relation to that drug by reference to the quantity of the mixture[10] no matter how small the quantity of the drug within the mixture and regardless of the remaining composition of the mixture. And I see no reason to suppose that any different result was intended in a case where the mixture may contain another drug of dependence, whatever the quantity of that other drug and whatever the remaining composition of the mixture. Logic and common sense imply an intention to enable the offender to be charged in relation to one drug in the mixture, by reference to the quantity of the mixture, regardless of the remaining composition of the mixture.

35 Contrastingly, however, given the express provision for '2 or more drugs of dependence' to which I have referred, there is I think a clear implication that, if it is sought to charge an offender in relation to two or more of the drugs in a mixture, he should be charged only by reference to the individual quantities of each drug or on the basis of the 'aggregated commercial quantity' or 'aggregated large commercial quantity' applicable to those drugs.

36 Consequently, as it seems to me, where an offender is found trafficking in a mixture containing two or more drugs of dependence (whether or not the mixture contains any other substance), the Crown has three options:

a) The Crown may ascertain the quantity of each drug of dependence within the mixture and present the offender on individual counts (each count relating to only one of the drugs of dependence so found) of trafficking in the quantity of that drug of dependence ascertained to be within the mixture.

b) Alternatively, the Crown may select just one of the drugs of dependence within the mixture and, if the quantity of the mixture is a commercial quantity or a large commercial quantity in relation to that drug of dependence,[11] the Crown may present the offender on a single count of trafficking in a commercial quantity or a large commercial quantity, as the case may be, of that selected drug of dependence.

c) Alternatively, the Crown may aggregate the quantity of each drug of dependence within the mixture and, if the aggregate quantity of those drugs of dependence is not less than an 'aggregated commercial quantity' or an 'aggregated large commercial quantity', as defined in s 70 of the Act, the Crown may present the offender on a single count of trafficking in that aggregated commercial quantity or aggregated large commercial quantity, as the case may be.

37 In my view, however, the Crown may not in relation to two or more of the**

drugs of dependence in the mixture prefer separate counts of trafficking in a 'commercial quantity' as defined by paragraph (c)(i) of the definition of commercial quantity, or trafficking in a 'large commercial quantity' as defined by paragraph (b)(i) of the definition of large commercial quantity.

**38 As Buchanan JA observes, because it was not open to the Crown to present the applicant on more than one aggregate basis in relation to more than one of the drugs of dependence within the mixture, the convictions on the counts other than counts 1 and 6 on the first presentment and count 2 on the second presentment should be quashed.

39 With respect, I agree with his Honour that it is not to the point that the applicant pleaded guilty to those counts. Given that it was not open to the Crown to charge the applicant with those counts, the court should not have accepted his plea of guilty to those counts. The acceptance of the plea in those circumstances resulted in a miscarriage of justice. And, in those circumstance, it is appropriate to allow the applicant to change his plea of guilty on those counts on this application.[12]**

40 In the Full Court decision in R v Broadbent,[13] O'Bryan J, with whom the other members of the Full Court agreed, said:

... a plea of guilty at a trial upon an arraignment has a two-fold significance. First, it is a formal and conclusive admission by the accused of the offence charged in the indictment to which he pleads guilty. Its second significance is that a plea of guilty dispenses with the necessity for the Crown proving the facts essential to establish his guilt of the charge to which he has so pleaded.

41 By a guilty plea, the accused must be taken to admit all the essential facts and

the law involved in the presentment.[14] A person may plead guilty upon grounds which extend beyond belief in his or her guilt, including a desire to avoid worry, inconvenience or expense; to avoid publicity; to protect others; or in the hope that by pleading guilty the person may obtain a more lenient sentence.[15] Even if the trial judge takes the view that the charge is not supportable, he or she cannot compel an accused to withdraw their plea, and if the accused refuses to do so, the plea must be considered final.[16]

42 The applicant is a sophisticated, commercial drug trafficker. His drug trafficking business involved drugs and cash measured in millions of dollars. In early September 2005 his solicitors, Messrs Valos Black & Associates, negotiated with the Crown charges to which he was prepared to plead guilty. The negotiated charges were set out on two presentments, numbered C0303598a and S01953959, which were filed before a judge in the County Court on 14 September 2005. There were 10 counts, all alleging offences under Part V of the Drugs Poisons and Controlled

Substances Act 1991. The applicant was arraigned and pleaded guilty to all 10 counts. An appearance was announced on behalf of the applicant by Mr Con Heliotis QC and Ms Nicola Gobbo of counsel, two barristers with extensive, perhaps unparalleled, experience in dealing with criminal charges under Part V of the Drugs, Poisons and Controlled Substances Act 1991. The trial judge heard a plea from Mr Heliotis. He sentenced the applicant on 26 October 2005. By a notice dated 8 May 2006 the applicant now seeks leave to appeal his convictions on all counts, save for one, to which he pleaded guilty on the two presentments.

43 Whilst I agree with what the majority judgments have said about the proper operation of Part V, I find I cannot agree with the conclusion they have reached on the application for leave to appeal the convictions.

Appeals against conviction after a guilty plea

**44 The first issue which arises on this application is the identification of the circumstances in which a person can appeal a conviction after he or she has admitted all of the elements of the charge by pleading guilty, and after the Crown has, as a consequence of the person's plea, been relieved of the necessity to establish the person's guilt of the charge. A person can appeal a conviction after pleading guilty, but only in very exceptional circumstances.

45 There are two passages from the authorities which are of such significance in this context that it is necessary to quote them in full. The first comes from the judgment of the Court of Criminal Appeal in England in R v Forde ('Forde').[17] The judgment of the Court was read by Avory J. The Court said:[18]**

A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1.) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2.) that upon the admitted facts he could not in law have been convicted of the offence charged.

The second passage comes from the judgment of Sholl J, a member of the Full Court in R v Murphy ("Murphy").[19] Sholl J said:[20]

It was established very early in the history of the Court of Criminal Appeal in England that a person who had pleaded guilty could nevertheless be an appellant under the legislation, and that view has been adopted here and elsewhere. But there has been a series of decisions tending to limit somewhat strictly, and for obvious reasons, the cases in which such appeals should be permitted to succeed, and I have had occasion to refer to a number of them. They all depend, however, on there being in the Court's opinion a miscarriage of justice. That is, for present purposes, the measure of the Court's jurisdiction, and decisions as to what cases have and what have not been considered to fall within the limits of that jurisdiction ought not to be read as if they were statutory definitions of those limits. The question for the Court always is whether there has been a miscarriage of justice, and if there has, the Court is subject to a mandatory obligation to set aside the conviction.

Most of the reported cases can, it is true, be fitted into the principles formulated in R. v Forde, [citation given]. But they should not be regarded as exhaustive of all possible cases of miscarriage of justice. They do not cover, for example, a case where an accused person, against whom a prima facie case exists, but who denies and has never admitted his guilt, is induced by threats, e.g. of a fellow accused, or of a police officer, to plead guilty where otherwise he would have pleaded not guilty. In such a case there would, in my opinion, be a miscarriage of justice, unless perhaps the case against him was overwhelming, and there should be a new trial.

The other members of the Full Court, Herring CJ and Adam J, also observed that whilst Forde represented 'a sound guide', the wide discretion conferred on the Court hearing an appeal by the relevant legislation could not be fettered by precise rules or tests.[21]

**46 Sholl J's formulation of the general principle has come to be accepted as representing the position in Victoria[22] and elsewhere.[23]

47 The circumstances in which an appeal against conviction after a guilty plea will be entertained are very exceptional.[24] The burden of persuading the Court that there has been a miscarriage of justice is upon the applicant and it is a heavy one.[25] Courts approach such applications with caution.[26]

48 Whilst the circumstances in which an appeal against conviction after a plea of guilty will be entertained are very exceptional, there have been a number of cases in which such appeals have been considered and, on rare occasions, have succeeded. A clear delineation of the decided cases into the two categories identified in Forde plus the residual category of other circumstances where there has been a miscarriage of justice is not always possible, but it is one means whereby the authorities can be reviewed. In the course of such a review, it becomes apparent that the relevant authorities can also be categorised in a different way. There are those cases in which the charge in question was subject to some clear and fatal defect and, if successful, the conviction was quashed; those cases in which the complaint was that some relevant circumstance had deprived an accused of the opportunity to pursue an issue at trial because of some mistake or misapprehension or other circumstance and, if successful, a new trial was ordered; and those cases where the issue raised is double punishment and the conviction appeal and the sentence appeal can become intertwined.

49 The cases in which it has been contended that the accused did not appreciate the nature of the charge or did not intend to admit that he was guilty of it (Forde's first category) are not of direct relevance here, as no such contention is made in this case. Indeed there is no material before this court which addresses the issue of why the applicant pleaded guilty. Some of the cases dealt with as falling within this category overlap with Forde's second category (on the admitted facts the accused could not have been convicted.) In R v Stewart ('Stewart')[27] the accused contended that he had pleaded guilty to incest charges because he had not appreciated the significance of the dates that were specified on the charge. The contention was that if he had appreciated the significance of the dates he would not have pleaded guilty because he would then have had available to him a defence, being that the last relevant act occurred whilst he was still under 14 years of age and accordingly could not have been convicted. The majority in the Full Court (Herring CJ and O'Bryan J) were not satisfied that the applicant's mistake had led him to plead guilty or that he would have taken a different course if he had known of the defence which he then sought to raise. Hudson J dissented. He was satisfied that a different course would have been taken and that there then would have been a real question to be tried. Hudson J expressly indicated that he expressed no opinion on the prospects of the defence. Similarly, the New South Wales Court of Criminal Appeal in R v Blanco Bello Ferrer-Esis ('Blanco Bello')[28] dealt with an application by an accused who had pleaded guilty, under what was said to be a misapprehension that it was not necessary for the Crown to prove intention on a charge of possessing cocaine, as falling within the first category in Forde. The Court in that case was not persuaded that the applicant (referred to in the report as the respondent as there was a Crown appeal on sentence) was indeed unaware of the nature of the charge to which he was pleading guilty.

50 The grounds upon which courts have entertained applications of this kind for reasons other than those fitting within the two categories identified in Forde have varied. In Murphy the allegation was that the accused had pleaded guilty because of her concern about matters extraneous to the charges themselves, involving a proposed adoption.[29] Two members of the Full Court, Herring CJ and Adam J, found that these circumstances were insufficient to justify intervention even if her account of why she had pleaded guilty were accepted as correct.[30] The third member of the Court, Sholl J, held that the circumstances relied upon would have been sufficient, if he had been satisfied that they were the reason that she had pleaded guilty, but he was not satisfied that the accused had not pleaded guilty partly or wholly through a consciousness of her guilt.[31]

51 A number of authorities have dealt with the situation where a ruling is made in the course of a trial against an accused and as a consequence the accused changes his or her plea. Different judicial views have been expressed on the issue of whether an appeal will be entertained in those circumstances. Street CJ and Nagle CJ allowed such an appeal in R v Chiron,[32] with Lee J dissenting. Whilst it was unnecessary to decide the point in R v Vasic,[33] two members of this Court suggested such an appeal would be entertained (Vincent JA, and Cummins AJA)[34] and one suggested that it would not (Nettle JA).[35] The Court of Criminal Appeal in South Australia doubted whether an appeal against conviction could be entertained after a change of plea following an evidence ruling in R v Frantzis,[36] but as the issue was not contested by the Crown in that case it was unnecessary for the Court to reach a final position. The Full Court in R v Sleiman (No 1)[37] refused an application for leave to appeal against conviction after a change of plea following a ruling from the trial judge. In that case Marks J observed that the mere fact that the possibility existed that the judge was wrong in law did not found any proper contention that there had been a miscarriage of justice.[38]

52 Cases which have been analysed in terms of the second limb in Forde (on the admitted facts the accused could not have been convicted) are probably the most numerous. It seems to me that they include: Forde itself, Gower v Ross ('Gower'),[39] R v Howes ('Howes'),[40] DPP v Bhagwan ('Bhagwan'),[41] R v Galasso ('Galasso'),[42] R v Vella ('Vella'),[43] R v Romeo ('Romeo'),[44] R v Caruso ('Caruso'),[45] R v Kardogeros ('Kardogeros'),[46] R v Liberti ('Libert'),[47] R v Tait ('Tait'),[48] R v Parsons ('Parsons'),[49] R v DD ('DD')[50] and R v Coffey ('Coffey').[51]

53 The delineation between categories is not always clear, but it seems to me that the second Forde category also encompasses the authorities dealing with the issue of double punishment. This is the way the matter was put to us on this application by counsel for the applicant. He relied in particular on Pearce v The Queen ('Pearce')[52] and R v Langdon ('Langdon').[53]

54 Before turning to the cases dealing with double punishment, however, there are some important features of the other cases in the second Forde category which ought to be noted. They are as follows:**

Appeals have succeeded notwithstanding a guilty plea, if the offence to which the accused pleaded guilty does not as a matter of law exist: Bhagwan (contrast: Howes); or if the prosecution for the offence is, by law, prohibited: Tait.
An appeal will not succeed merely because it can be shown there was a misdescription of the offence in the presentment, either in relation to the conduct in question: Coffey; or as to the statutory provision allegedly contravened: DD.
An applicant may legitimately seek to agitate an appeal on conviction after a guilty plea to argue an issue of statutory construction, or some other issue of law, which arises on any view of the facts: Parsons; or which arises in circumstances where the relevant facts are clear and uncontroversial: Kardogeros.
An applicant might also rely on a misconception as to an issue of law, only exposed as such by later authority, and which is said to have led to the guilty plea: Liberti and Parsons.

55 I indicated earlier that the cases where an applicant has sought to appeal a conviction after pleading guilty can be also categorised in another way. First, there are those cases where there is said to be a fatal defect of some kind, as a result of which if the appeal succeeds the conviction is simply to be quashed. Secondly, there are those cases where what is said in substance is that the accused has lost an opportunity to pursue a defence, in which circumstance the remedy, if successful, is a new trial. It seems to me that Bhagwan, Howes, Caruso, Tait, Parsons, DD and Coffey are examples of the first, and that Stewart, Blanco Bello, Murphy, Forde, Gower, Galasso, Vella, Romeo, Liberti, Kardogeros are examples of the second category. Cases dealing with double punishment fall into a third category.

**56 The first decision to which reference must be made is the decision of this Court in R v Sessions ('Sessions').[54] In that case an accused who had inserted his finger into an infant baby's vagina was charged with one count of rape and one count of recklessly causing serious injury. He pleaded guilty to both counts and was sentenced on both counts. It was a clear and uncontroversial fact that there had been only one relevant act by the accused, which was the single insertion of his finger into the baby's vagina. The prosecution had charged him with two offences as a result of a concern that otherwise R v Newman and Turnbull[55] might mean that in dealing with the prisoner on the rape conviction the sentencing court would not take into account the reckless intent with which the act had been performed. Application was made for leave to appeal against conviction on the charge of recklessly causing serious injury and against the sentence on the rape charge.

57 The applicant in Sessions submitted that what had occurred was an abuse of process falling within the more general aspects of the rules about double jeopardy. The Court upheld that submission. In the leading judgment Hayne JA gave three reasons why no conviction should have been recorded on the recklessly causing serious injury count. His reasons were as follows. First, a conviction is part of the punishment and a single act or omission should not give rise to multiple punishments. Secondly, there was no useful distinction to be drawn between different parts of the applicant's conduct and all of the relevant circumstances could properly be taken into account in determining the sentence to be imposed on the applicant for rape. Thirdly, the decision in R v Newman and Turnbull did not mean that it was necessary to charge separate offences so as to enable the sentencing judge to take into account all of the relevant matters. Hayne JA concluded:**

... [W]here, as here, the act for which the applicant was to be sentenced on count 1 was the same act as he was to be sentenced for on count 2 and there was no fact or matter that should be taken into account in sentencing on one count that would not be taken into account in sentencing on the other count it was, in my view, oppressive and unfair to punish him twice. The conviction on count 2 should be quashed.

**58 In Sessions it was conceded on behalf of the Crown (reference being made to Kardogeros and Tait) that, if the submission that there had been double punishment was made out, then there had been a miscarriage of justice in the relevant sense and the appeal might be allowed notwithstanding the guilty plea.

59 The next relevant authority is Pearce.[56] In that case the appellant had been charged with 2 offences: maliciously inflicting grievous bodily harm, and, breaking and entering a dwelling house and while therein inflicting grievous bodily harm. The victim in relation to each count was the same. The dwelling house was the victim's house. The two charges arose out of a single episode. The appellant broke into the victim's home and beat him.

60 The High Court in Pearce addressed the issue of double jeopardy in the context of both an appeal against conviction and an appeal against sentence. The High Court upheld the decision of the Court of Criminal Appeal in New South Wales to dismiss the appeal against conviction. The High Court held, however, that the principles involved in the notion of 'double jeopardy' also applied at the stage of sentencing and that those principles found expression in the rule against the duplication of penalty for what is substantially the same act. In the particular circumstances of Pearce it was held that the boundaries between the two offences charged overlapped and that the individual sentences imposed were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. The Court held that the fact that the sentences on the two charges had been made concurrent only served to mask the error. In the circumstances the Court set aside the decision of the New South Wales Court of Criminal Appeal in dismissing the appellant's application for leave to appeal against sentence and remitted the matter to that Court to be dealt with consistently with their reasons for judgment.

61 It is important to emphasise that Pearce dealt with the issue of double punishment in the sentence appeal not the conviction appeal.

62 The next relevant decision is R v GJB ('GJB').[57] In that case this Court considered a matter in which the accused had been charged under s 47A of the Crimes Act 1958 with maintaining a sexual relationship with a child under the age of 16, an element in the proof of which was proof of at least three acts which were against other specified provisions of the Crimes Act. There were then further counts on the presentment which alleged contraventions of those specified provisions. The particular acts relied upon by the Crown in relation to each of the counts were different. The accused pleaded guilty to all counts.

63 This Court granted leave to appeal against the convictions and quashed the convictions recorded and the sentences imposed on all counts other than the first count of maintaining a sexual relationship. The leading judgment was that of Winneke P, with whom Batt JA and O'Bryan AJA agreed. Winneke P cited Murphy, Kardogeros, Tait, and Parsons and found that there had been a miscarriage of justice because the specific offences charged, other than the first count, were, on analysis, particulars of and alternatives to the offence charged in the first count. The fact that the Crown had chosen to particularise different acts in relation to each count did not prevent the miscarriage in the particular case. The nature of the offence under s 47A of the Crimes Act was such that, in the words of Batt JA, the later counts were 'inherently ingredients of the offence alleged in count 1 and the pleader could not circumvent this fact by purportedly limiting particularisation.'[58]

64 The next relevant decision is this Court's decision in R v El-Kotob ('El-Kotob').[59] In that case a number of persons were charged with conspiracy to cheat and defraud and then with a number of substantive counts of obtaining property by deception and offences in relation to false documents. The charges, to which the accused pleaded guilty, were arrived at, in the words of the head note, 'as part of a plea bargain'. At the hearing of appeals on sentence the accused sought an extension of time within which to apply for leave to appeal against conviction contending that the recording of convictions on both the conspiracy count and the substantive counts amounted to double punishment.

65 Callaway JA rejected the accuseds' submission, finding that there was no double punishment in the recording of separate convictions for the substantive offences as they were distinct offences with different elements and involving separate violations of the community's right to peace and order.

66 O'Bryan AJA agreed that the application for an extension of time within which to appeal the convictions should be dismissed. He referred to Murphy, Forde, Tait and GJB. He dealt with Pearce in the context of the appeal on sentence. An issue of particular importance to O'Bryan AJA was the fact that a guilty plea had been entered consequent upon negotiations with the Crown. O'Bryan AJA said: 'I consider that an understanding, arrangement or agreement having been reached between the Crown and the appellants ... it is not open to the appellants to withdraw from the plea agreement by applying for leave to appeal against conviction unless they satisfy the very exceptional circumstances set out in R v Stewart'.

67 O'Bryan AJA said that the miscarriage of justice asserted by the appellants was that the substantive offences alone provided an adequate basis for punishment purposes and that it was contrary to principle and an abuse of process for the counts of conspiracy to have been laid. O'Bryan AJA rejected this argument, adopting in this respect the reasons given by Vincent JA. O'Bryan AJA then went on:**

The understanding, arrangement or agreement between the parties carried with it an expectation and acceptance of punishment in one form or another for the substantive offences. The best outcome the appellants could expect was conviction and sentences on counts 2-5 with total concurrency with each other and with the sentence imposed on count 1. They voluntarily accepted punishment of conviction on all counts and the possibility of an additional custodial sentence by a cumulation order. The best outcome was achieved, when no cumulation order was made by the judge.[60]

68 O'Bryan AJA rejected the submission that the acts constituting the conspiracy and the acts constituting the other counts were so related and bound up as to be the same event, transaction or episode. He went on:

Further, for this court to now allow the appellants an extension of time within which to make application for leave to appeal against conviction on counts 2 - 5 and to allow those applications and set aside the convictions recorded against each of them would amount to a miscarriage of justice against the Crown, in my opinion. The appellants, having entered upon an understanding, arrangement or agreement with the Crown, in the circumstances outlined, are bound thereby. To decide otherwise will have the undesirable effect of undermining the plea bargain process, for the Crown will be wary in the future of not proceeding with all available charges lest in this court an appellant will seek to resile from their agreement.[61]

69 Vincent JA dissented on the applications to appeal against conviction. He recognised that the charges were the result of negotiations producing an outcome with advantages for both sides. He also recognised that in the context of a guilty plea there should be flexibility in the form in which the charges are set out in the presentment. He found that the joinder of the various counts was not in itself contrary to principle. But he said that if the sentencing judge had taken into account the criminal conduct covered by the other counts in his determination of the proper sentence to be imposed on the conspiracy count then to record separate convictions, regardless of whether the sentences handed down were concurrent, would be the imposition of double punishment. Vincent JA concluded on the particular facts of that case that it was likely that that is what had occurred. He referred to what Hayne JA had decided in Sessions and said:

If the judge considers that in accordance with principle separate convictions or the imposition of further penalties are called for, then they should be imposed; if not, that course is not to be adopted.[62]

**70 Vincent JA cited GJB, Tait, Forde and Kardogeros and expressed the opinion that he would grant an extension of time within which to apply for leave to appeal against conviction, allow those applications and set aside the convictions on each of the substantive offences.

71 The final relevant decision is the decision of this Court in Langdon.[63] In that case a husband and wife were charged with a number of offences relating to the manufacture and distribution of amphetamines. Amongst other things, they argued that certain of the charges exposed them to double jeopardy. They had pleaded guilty to all of the charges. They argued that certain of their convictions meant they were punished twice for the commission of the same criminal acts. They relied in this respect on s 51 of the Interpretation of Legislation Act 1984 and upon Pearce. As to the pleas of guilty, they relied upon Stewart and El-Kotob.

72 The leading judgment was by Gillard AJA. He rejected an argument to the effect that pleas in bar of autrefois convict ought to have applied, as the High Court had rejected a similar argument in Pearce. He did so on the basis that 'unless the elements of the two counts are identical or the elements of one are wholly included in another count'[64] a plea in bar is not available. His analysis of the counts in the particular case was that they were not identical and that the elements of no single offence were wholly included in any other. Gillard AJA also rejected an argument that the counts charged constituted abuse of process 'because the offences are different not only in relation to the elements, but also in relation to the factual matters which constitute each offence'.[65] The applications for leave to appeal against conviction failed.

73 Gillard AJA then turned to the appeals against sentence. A number of matters were relied upon. One was that the 'principle against double punishment applied.'[66] The grounds relied upon in relation to sentence all failed, save for the argument based upon double punishment.

74 Returning again to the High Court judgment in Pearce, Gillard AJA found, as had also been found to be the case in Pearce, that there was an overlap of factual matters. Gillard AJA found that one particular factual matter, possession of amphetamines, was common to both the count of trafficking amphetamines and of possession of amphetamines. He concluded that in the circumstances there had been double punishment 'for the criminal act common to both counts.'[67] As he then found that there were no 'remnants of criminal conduct' on the possession count which had not already been taken into account on the trafficking count, he said the proper approach was 'to impose no sentence in respect to count 9',[68] observing that to do so would contravene s 51 of the Interpretation of Legislation Act. Given that there was no additional criminal act to punish, Gillard AJA said the only course was to quash the conviction. In that respect he cited Sessions.

75 Thus, although the only submission which succeeded in Langdon was a submission made in relation to the appeal on sentence the final orders included orders that leave to appeal against the convictions be allowed and that the appeals be allowed in part.**

**76 The first presentment contained six counts. The first five counts alleged drug trafficking offences between 8 August 2003 and 28 September 2003. Each count concerned a different drug. Count 1 alleged trafficking in MDMA in a quantity not less than the large commercial quantity applicable to that drug. Count 2 alleged trafficking in methylamphetamine in a quantity not less than the large commercial quantity applicable to that drug. Count 3 alleged trafficking in amphetamine in a quantity not less than the large commercial quantity applicable to that drug. Count 4 alleged trafficking in dimethylamphetamine in a quantity not less than the commercial quantity applicable to that drug. Count 5 alleged trafficking in ketamine. Count 6 alleged that on 28 September 2003 the applicant possessed a drug of dependence namely cocaine.

77 On the plea separate openings in relation to each presentment were tendered together as exhibit A.

78 The Crown opening included a summary of facts in relation to the first presentment. The summary asserted, amongst other things, that the applicant and others manufactured and distributed 'ecstasy'. Throughout the summary, whilst other drugs were referred to, on almost all occasions the drugs in issue were described as 'ecstasy', until, towards the end of the summary, items seized during the execution of warrants on 28 September 2003 were listed (paragraphs 58 to 65). That list referred to large quantities of ecstasy tablets (in excess of 30,000), to ecstasy in powdered form, to amounts of methylamphetamine in various forms, to dimethylamphetamine, and to MDMA powder, amongst other items. The summary then referred to analysis of the drugs seized and incorporated reference to a statement of an analyst named Deborah Jane Stephen (para 70). The summary stated that, so far as was relevant to the applicant, the analysis revealed the following:**

**79 The statement of Deborah Jane Stephen is headed 'Certificate of Analyst'. My analysis and understanding of the statement is as follows.

80 The statement sets out a very large number of items analysed, specifying in relation to them item numbers. The items include a large number of tablets of various colours and types, powder of various colours and types, and other materials. The statement does not give a total weight of the items analysed, or a total weight of the tablets or of the tablets and powders.

81 A large number of the tablets and powders analysed, but by no means all of them, were found to contain MDMA. The powders and tablets which did not contain MDMA were items 9, 23, 42, 50, 55, 153, 160, 162, 171, 173, 175, 176, 178, 181, 185, 189, 190, 191, 192, 193, 194, 197, 202, 204, 251, 269, 270, 318, 321, 355, 357, 359, 361, 363, 364, 365, 366. A few of these powders and tablets contained no illegal drugs. There were no illegal drugs in the powders and tablets which were items 173, 175, 176, 357, 359, 361 and 363. Thus, the powders and tablets which were items 9, 23, 42, 50, 55, 153, 160, 162, 171, 178, 181, 185, 189, 190, 191, 192, 193, 194, 197, 202, 204, 251, 269, 270, 318, 321, 355, 364, 365, and 366 contained illegal drugs but no MDMA.

82 The statement of Deborah Stephen reveals that the material which was tested and found to contain MDMA was of a total weight of 14.3 kilograms. The statement refers to the fact that under column 1B of Part 3 of Schedule 11 to the Drugs Poisons and Controlled Substances Act 1981 the quantity of a mixture of other substances and MDMA which constitutes a large commercial quantity is 1 kilogram.

83 On the hearing of the appeal, senior counsel for the Crown told the Court that his instructions were that amongst the items which did contain MDMA was 1.2 kilograms of material which did not contain any other illegal drug. This proposition was not contradicted by counsel for the applicant.

84 Ms Stephen's statement also sets out in relation to each item found to contain MDMA the approximate purity expressed as a percentage of the MDMA in that item. No calculation of the total quantity of MDMA, which could have been undertaken so as to determine whether there was a large commercial quantity as provided for in column 1A of Part 3 of Schedule 11, is set out.

85 The statement then sets out all of the items which upon analysis were found to contain methylamphetamine. These items are not the same as the items which were found to contain MDMA but there is extensive overlap. The total weight of items found to contain methylamphetamine was, according to the statement, 13.9 kilograms. As was the case with the MDMA, the statement sets out the approximate purity expressed as a percentage of methylamphetamine in each of the items. The total weight of the items containing methylamphetamine is said by the statement to be 13.9 kilograms. Again, no calculation based upon the purity analysis is set out. The statement refers to the fact that under column 1B of Part 3 of Schedule 11 the large commercial quantity of a substance including methylamphetamine is 2.5 kilograms.

86 The statement then sets out the items which upon analysis were found to contain amphetamine. This is a much smaller list of items than the items found to contain MDMA or methylamphetamine. All of the items on this list are on the MDMA list, and all except one are on the methylamphetamine list. There are many items on the MDMA list and on the methylamphetamine list which are not on the amphetamine list. The statement does not set out any purity analysis in relation to amphetamine. The statement indicates the total weight of items containing amphetamine was 2.67 kilograms. The statement refers to the fact that the large commercial quantity of a substance including amphetamine in column 1B of Part 3 of Schedule 11 is 2.5 kilograms. The statement says that the purity of the amphetamine in the substances 'was not determined.'

87 The statement then turns to the dimethylamphetamine and lists 8 items which contained that drug. All of these items are also on the methylamphetamine list. None of them are on the MDMA list. None of them are on the amphetamine list. The total weight of the items which contained dimethylamphetamine is said to be 831.6 grams. An analysis of the quantity of dimethylamphetamine in the items was undertaken, and the statement says the approximate quantity of dimethylamphetamine was 508 grams. The statement then refers to column 2 of Part 3 to Schedule 11. Dimethylamphetamine is a derivative of amphetamine so that the commercial quantity referable to dimethylamphetamine is 250 grams.

88 According to Ms Stephen's statement a significant number of items contained ketamine. There are more items on this list than on the lists of items that contained dimethylamphetamine or amphetamine but there are less than those on the lists of items which contained MDMA or methylamphetamine. The items that contained ketamine were analysed by reference to the purity of the ketamine. The total weight of the items which contained ketamine was approximately 9 kilograms (8997.9 grams) and the amount of ketamine in those items was calculated at approximately 22.6 grams. The statement refers to the fact that the traffickable quantity of ketamine in Column 3 of Part 1 to Schedule 11 is 20 grams.

89 According to Ms Stephen's statement, 3 items contained cocaine. They were items 317, 318 and 9. Item 317 is also on the MDMA and the methylamphetamine list but is not on any of the other lists. Item 318 is on the methylamphetamine list but not on any of the other lists. Item 9 is not on any of the other lists. Items 9 and 318 are very small. Item 317 is 1.7 grams in weight and was assessed at 60% pure. The total weight of the items containing cocaine was 2.1 grams.

90 On the application before us the applicant submitted that the counts on the first presentment were 'based upon the discovery of a large quantity of tablets and powder on 28 September 2003.' The submission continued:**

The combined weight of the tablets and powder was 14.3 kgs. This was analysed for the presence of drugs of dependence. Within all items that comprised the 14.3 kgs there was a percentage of MDMA (count 1). Within 13.9 kgs of the items that comprised the 14.3 kilograms there was a percentage of methylamphetamine (count 2). Within 2.67 kgs of the items that comprised the 14.3 kgs there was a percentage of amphetamine (count 3). Within 831 gms of the items that comprised the 14.3 kgs there was a percentage of dimethylamphetamine (count 4) and within 8.9 kgs of the items that comprised the 14.3 kgs there was a percentage of ketamine (count 5).

**91 It seems to me that that submission does not accurately portray what the summary of facts and the statement of Ms Stephen say. The assertion that there was in total 14.3 kilograms of tablets and powder is not what the summary or the statement says. The assertion that the materials which upon analysis were found to contain drugs other than MDMA are each a sub-set of the materials which upon analysis were found to contain MDMA is not what the summary or the statement says.

92 It is possible to track the source of the misconception set out in the applicant's submission. It begins at the very commencement of the plea immediately after Mr Heliotis QC announced his appearance. Mr Heliotis said:**

Before the learned prosecutor opens the matter to you, it is our understanding, and we hope we are right, that all the first five counts in the first presentment involved the same drug substance. It is this new methodology of taking each of the matters that are present and saying because they are present with a lot of other stuff, that makes them a large commercial quantity.

**93 He went on to say that in relation to the second presentment 'you have the same sort of thing'.

94 In response the sentencing judge referred to the references to trafficking 'ecstasy' pills and said: 'you break down the contents and that's what they are.'

95 The misconception was then compounded by counsel for the Crown who asserted as follows:**

As we have previously indicated, what has been put down in count 1 or referred to in count 1 is the MDMA and then the ingredients.

Reference was then made to count 2, and counsel for the Crown said:

When they do the analysis, that's the component of methylamphetamine in the total number of or amount of ecstasy or MDMA that was found.

The judge then asked what was the total weight and Mr Heliotis said:

There is only 14.3 kilograms of substance that contains a variety of drugs.

**96 What counsel for the Crown and Mr Heliotis told the judge was not what was set out in the summary of facts or the statement of Ms Stephen. The material does not reveal there was 'only 14.3 kilograms' of substance that contains any drugs. The material does not reveal what the total weight of the substances containing drugs was. 14.3 kilograms of the substances contained MDMA. The summary of facts and the statement of Ms Stephen does not say the methylamphetamine is an 'ingredient' of the MDMA.

97 It is most significant that the issues were being addressed by counsel in the course of a guilty plea in relation to counts which had been negotiated between the legal advisers for the applicant and the Crown. If the matter had been contested, it might have been dealt with in an entirely different way, and with different or additional evidence.

98 The misconception about the 14.3 kilograms and the 'ingredients' found its way, to some extent at least, into the sentencing judge's sentencing remarks. At para 20 he said:**

In total you were found in possession of 14.3 kilograms of ecstasy. That 14.3 kilograms of substance contained a variety of drugs that are individually itemised in Counts 1 to 5 on the presentment. I was informed by the learned prosecutor that the 14.3 kilograms is effectively one lot of substance broken down into its various chemicals and each element chemical, an illegal substance, was charged in a separate count. The Crown concede that there should be total concurrency in respect of each of these five counts.

**99 The sentencing judge's description of the position was more accurate than that of the respective counsel had been. But he did repeat the misconception that the total amount of substances containing any relevant drug was 14.3 kilograms. He did not repeat the misconception that the drugs in counts 2, 3, 4, and 5 were 'ingredients' of MDMA.

100 It seems to me from reading Ms Stephen's statement that the total weight was probably not much greater than 14.3 kilograms, given the fact that the items containing MDMA and methylamphetamine are so prevalent and overlap each other to such an extent. There were many different types of pills and powders, and most of them seem to have contained MDMA and methylamphetamine. But it also seems that the applicant could have been convicted of count 1 by reference to material (1.2 kilograms) which contained no drug other than MDMA; and, whilst Ms Stephen referred to the mixture provisions in relation to the drugs the subject of counts 2 and 3, they were either not subjected to a purity analysis or the calculation of the total was not set out. Counts 4 and 5 were dealt with on the basis of a purity analysis.

101 For a reason which is not clear to me, counsel for the applicant treated count 6 (concerning cocaine) in a separate category, as to which no complaint is made, notwithstanding that two of the three items containing cocaine are also on other lists. The amount of cocaine in the item not on other lists (item 9) is minute (.1 gram 60% pure).

102 The submission made on behalf of the applicant in relation to the convictions on the first presentment was as follows:**

By pleading the individual drug components within the same tablets and/or powder that was in the possession of the Applicant as separate counts on the presentments and having convictions and sentences recorded for each the Applicant has been punished more than once for the same conduct. His trafficking was of the whole not its constituent components. [Pearce and Glaister cited].

Further to the extent that the quantity of a drug of dependence on a given count was based on the weight of the admixture, which admixture contained the drugs of dependence named in the other counts, the counts are wholly subsumed within each other.

In these circumstances pleas of guilty to all counts should not have been accepted by the court, nor should convictions on each count have been entered. The order for total concurrency of each count did not cure this defect but is reflective of it.

Although the Applicant pleaded guilty an error of law has occurred which has led to a miscarriage of justice. Leave to appeal conviction should be allowed and the convictions set aside [Stewart and Langdon cited].

**103 The applicant's submission in relation to conviction is premised upon a continuation of the misconception which began shortly after Mr Heliotis announced his appearance on the plea, which was compounded by counsel for the Crown, and which was to some extent reflected in the sentencing judge's reasons. It is not correct to submit that the evidence establishes that the individual drug components were within the 'same' tablets and powder. The position is more complicated than that. To the extent the submission assumes that reliance on the mixture provisions was necessary for all the convictions, that is also not correct.

104 Assuming the correctness of senior counsel for the Crown's statement as to the material containing MDMA and no other illegal drugs, the applicant could have been convicted on count 1 by reference to material which contained MDMA and no other drug.

105 The applicant could have been convicted on counts 4, 5, and 6 without reliance on the mixture provisions.

106 The position in relation to counts 2 and 3 is uncertain. In my view one reason for that is that the applicant pleaded guilty. This Court does not know what the evidence would have been if he had pleaded not guilty. I am not prepared to conclude on the material before the Court that the applicant could not have been convicted on counts 2 and 3. I agree with the majority's construction of the proper operation of Part V of the Drugs Poisons and Controlled Substances Act 1981. But I do not accept that, adopting that construction, the applicant has demonstrated he could not have been convicted. I do not accept that what transpired at the plea constituted an election by the Crown to rely on the mixture provisions.

107 In my opinion leave should not be granted now for the applicant to appeal his convictions on the first presentment for the following reasons:**

There is no suggestion he did not appreciate the nature of the charges. He had the best legal advice available.
It is not the case that on the admitted facts he could not have been convicted. On the material before the Court he could have been convicted of counts 1, 4, 5, and 6. The uncertainty in relation to counts 2 and 3 cannot be relied upon by the applicant. He pleaded guilty. He has the heavy burden of demonstrating a miscarriage of justice. He has failed to do so.
There is no other miscarriage of justice. Indeed, in my view, the observations of O'Bryan AJA in El-Kotob apply here. If the applicant is permitted to appeal his convictions the miscarriage of justice will be one suffered by the Crown.
To the extent there is an issue of 'double punishment', it can and should be dealt with on the sentence appeal.

**108 The second presentment contained four counts. Each count alleged drug trafficking offences committed on 16 August 2004. Each count concerned a different drug. Count 1 alleged trafficking in methylamphetamine. Count 2 alleged trafficking in MDMA in a quantity that was not less than the commercial quantity applicable to that drug. Count 3 alleged trafficking in MDA in a quantity that was not less than the commercial quantity applicable to that drug. Count 4 alleged trafficking in ketamine.

109 The Crown opening in relation to these offences stated:**

... the quantities referred to in counts 2 and 3 are commercial quantities applicable to those drugs. However, the presentment singles out the individual ingredients of all substances found on 16 August 2004.

**110 The summary refers to the circumstances in which a number of different types of tablets and a powder in a plastic bag had been found in the applicant's car. A certificate of analyst dated 22 August 2005 was produced. The analyst was Graeme Wilson. The 11 items referred to in the certificate are numbered 1, 2, 3, 7, 8, 9, 10, 11, 13 and 15.

111 My analysis and understanding of this analyst certificate is as follows.

112 Of the 11 items analysed all contain methylamphetamine. That is perhaps the explanation for the count concerning methylamphetamine being the first count. The quantity of the drug revealed by the analysis is below the commercial quantity, both on the basis of purity and on the basis of the total weight of substances containing methylamphetamine, but it is above the traffickable quantity (6 grams) on a purity analysis. One item, item 15 (a powder not tablets), contains well over the 6 gram threshold by itself. The item weighs 21.8 grams and is 50 percent pure. This item, item 15, contains no other illegal drug and is not included in the analysis relevant to any of the other counts.

113 In relation to MDMA, the analysis reveals that 10 of the 11 items contain MDMA. The item which does not contain MDMA is the power which is item 15 referred to above. The total weight of items containing MDMA is 664.1 grams. The analyst states that the commercial quantity of a substance including MDMA in column 2A of Part 3 of Schedule 11 is 500 grams. A purity analysis of the items containing MDMA was undertaken but no total is set out.

114 In relation to MDA, nine of the 11 items contain MDA. The total weight of those items is 644 grams. The analyst again refers to the 500 gram threshold in column 2A. A purity analysis was undertaken but no total is set out.

115 In relation to ketamine, 10 of the 11 items contain ketamine. The total weight of items containing ketamine is 664.1 grams. The analyst sets out a purity analysis which results in a total quantity which exceeds the traffickable threshold in column 3 of Part 1 of Schedule 11.

116 On the material before the Court, in my view it is clear that the applicant could have been convicted on count 1 whether there was reliance on the mixture provisions or not. One item by itself (item 15) contained methylamphetamine, and no other drug, in a quantity sufficient to sustain that count.

117 It is also clear that the applicant could have been convicted on count 4, which was based on a purity analysis of ketamine.

118 The position in relation to counts 2 and 3 is again uncertain. The conclusion seems inescapable that he could have been convicted of one of those counts, but it is not clear if he could have been convicted of both. Again, in my view one reason for the uncertainty is that the applicant pleaded guilty. This Court does not know what the evidence would have been or how the matter might have been approached if he had pleaded not guilty. Again, I do not consider that the applicant has discharged the heavy burden of establishing a miscarriage of justice by showing that on the admitted facts he could not have been convicted of counts 2 and 3.

119 In my opinion leave should not be granted now for the applicant to appeal his convictions on the second presentment for the same reasons as those I gave in relation to his application concerning the convictions on the first presentment.**

**120 Given that I have reached a different conclusion on the application for leave to appeal the convictions to that reached by the other members of the Court, it is unnecessary for me to address the issues raised in the sentence appeal save for one matter.

121 In my view neither of the presentments concern a situation where there is only one relevant criminal act, as was the position in Sessions, or a situation where there is an overlap of criminal conduct to such an extent that after conviction on one of the counts there is no remnant of criminal conduct in the others, as was the case in Langdon. Accordingly, in my view this is not a case where on the sentence appeal the convictions on any of the counts ought to be quashed.

[2] Cf Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502, 507-8 ( Gleeson CJ). See also R v Sessions [1998] 2 VR 304, 310 (Hayne J).

[3] Sentencing and Other Acts (Amendment) Act 1997. The Drugs, Poisons and Controlled Substances (Amendment) Act 2001 introduced an offence of trafficking a 'large commercial quantity' of a drug of dependence, allowing the calculation of this quantity to be made by reference to a mixed substance. This Act also introduced the concepts of an 'aggregated commercial quantity' and 'aggregated large commercial quantity', although those amounts were not defined by reference to a mixed substance. The Drugs, Poisons and Controlled Substances (Amendment) Act 2006 amended the definitions of 'aggregated commercial quantity', 'aggregated large commercial quantity' and 'trafficable quantity' to allow each of those quantities to be established by reference to a mixed substance.

[6] R v Forde [1923] 2 KB 400, 403 (Avory J). See also R v El-Kotob [2002] VSCA 109; (2002) 4 VR 546.

[7] See R v Coffey [2003] VSCA 155; (2003) 6 VR 543, 545-6 (Callaway JA); R v Murphy [1965] VicRp 26; [1965] VR 187.

[8] Cf R v GJB [2002] VSCA 54.

[9] Carr v Finance Corporation of Australia Ltd [1982] HCA 43; (1982) 150 CLR 139, 150; Pearce & Geddes, Statutory Interpretation in Australia 6th Ed, [4.28].

[10] On the basis of paragraph (c)(i) of the definition of 'commercial quantity' or paragraph (b)(i) of the definition of 'large commercial quantity'.

[11] As ascertained from Columns 2A and 1B of Part 3 of Schedule 11 to the Act.

[12] R v Tait [1996] VicRp 48; [1996] 1 VR 662, 664; R v Kardogeros [1991] VicRp 19; [1991] 1 VR 269, 273; R v Sessions [1998] 2 VR 304, 312-313; R v El Kotob [2002] VSCA 109; (2002) 4 VR 546, 562 [55]-[58].

[15] Meissner v The Queen [1995] HCA 41; (1994) 184 CLR 132, 157.

[16] Maxwell v The Queen (1995) 184 CLR 501, 510-511.

[22] R v Vella (1984) 14 A Crim R 90, 92-93 (per Young CJ and Crockett and Brooking JJ) and R v Parsons [1998] 2 VR 478, 482 (per Winneke ACJ with whom Tadgell and Ormiston JJA agreed).

[23] R v Chiron (1980) 1 NSWLR 218, 221 (Nagle CJ), 235 (Lee J) and 219 (Street CJ).

[24] R v Stewart [1960] VicRp 16; [1960] VR 106, 108; R v El-Kotob [2002] VSCA 109, [566].

[25] R v Vella (1984) 14 A Crim R 90, 95.

[26] R v Liberti (1991) 55 A Crim R 120, 121 (Kirby P).

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