HIS HONOUR: The accused, Amber Williams, by a motion that was filed on 17 October 2018, moved for orders that proceedings in relation to count 1 and/or count 2 on the indictment be stayed, and secondly that the ERISP of the accused dated 27 August 2015 not be allowed into evidence.
The matter proceeded before me yesterday in the context that I was in another trial where there was a change of plea by the accused which made me available to take this matter for the period of time between 12 noon and 1pm before I had to get back to other work. So I received material which I will identify in a moment from the Crown. But made it clear to the parties that as the application for a stay of proceedings went to the issue of whether the Crown could present an indictment, I should deal with the stay matter and determine that before I can turn to the issue of admissibility, primarily on the basis that if I determined that there be a stay of proceedings on a permanent basis there'd be no indictment filed. If I declined to grant a stay of proceedings the indictment could be filed and I could arraign the accused and we could press on with any admissibility matters that needed to be dealt with before the jury was empanelled.
In relation to the fundamental issues that arise concerning the Court's powers, the matter has proceeded on the assumption that this Court has power to permanently stay proceedings and as I would understand the position notwithstanding this Court is an inferior Court and does not have an inherent jurisdiction as does the Supreme Court, the Court has jurisdiction to order a permanent stay of proceedings or any such other order as it regards as appropriate to prevent an abuse of its processes: see Jago v District Court of New South Wales (1989) 168 CLR 23. There are a number of decisions that follow from Jago discussing what constitutes a relevant abuse of process for the purposes of determining whether a stay of proceedings may be ordered. Amongst those decisions is the decision of Spautz v Williams (1992) 175 CLR 509. There are also decisions such as Walton v Gardiner (1993) 177 CLR 378, particularly at 392 393. That issue was not litigated before me in any depth. I have no doubt that I have the jurisdiction to permanently stay the proceedings.
The indictment proposed to be filed in this matter in respect of the accused Amber Williams alleges three counts. Firstly, in count 1, that she between 12 February 2015 and 27 August 2015 in Terrigal and Goulburn in the State of New South Wales did supply a prohibited drug, namely oxymetholone. Oxymetholone I hasten to say is said to be a "steroid." Count 2 on the indictment alleges against the accused that she between 12 February 2015 and 27 August 2015 in Terrigal and Goulburn in the State of New South Wales did supply a prohibited drug, namely methandienone. There is a third count in the indictment, but it is irrelevant to the application for stay, a discrete allegation that the accused on 14 August 2015 in Matraville did supply a prohibited plant, namely cannabis. By definition having regard to the motion that matter is not caught by the application.
In respect of the material I have received I have a Crown case statement which sets out a considerable amount of detail relevant to count 1, but really is only a summary of relevant detail from what I understand I have been told from the bar table in relation to count 2. In respect of the detail within the Crown case statement and the matters that have arisen from the Crown's address to me it is my understanding that the Crown case in relation to count 1, that the accused is guilty of supply of the relevant prohibited drug on the basis of the extended definition in s 3 Drug Misuse and Trafficking Act 1986. That is, that she did attempt to possess for the purposes of supply, offer to supply and/or agree to supply particular drugs that were imported into Australia on 24 May 2015. I use the word "imported" in a general sense. The issue of the legal definition of "import" or "imported" assumes some significance in the course of the submissions made in relation to support of the application.
In respect of count 1, specifically the Crown refers to the supply of oxymetholone in a quantity of 10.4 grams, that particular prohibited drug being intercepted by the Australian Border Force by obtaining a FedEx envelope and parcel addressed to the accused at an address at Terrigal on 24 May 2015. Those prohibited drugs were not delivered to the accused and at no time did she have "possession" of them. In relation to the second count in the indictment, the Crown's case statement is somewhat shorter on detail, without criticising it of course, but it is clear based upon the Crown case statement that in respect of count 2 that count is concerned with 77.33 grams of the identified prohibited drug arriving in Australia addressed in an envelope to the accused Williams on or about 25 August 2015. In respect of that particular quantity of prohibited drug it was the subject of what could be called a "controlled delivery", in that a relevant investigating officer attended upon the accused's address at Terrigal. She signed for the package, presumably although it does not expressly say so in the Crown case statement received the package but was shortly arrested afterwards. Thus, on the facts of that case the relevant prohibited drug was in her possession for a period of time.
What is at the heart of the application to stay the proceedings ultimately, from my determination from the material presented, is the issue of whether in fact the previous pleas of guilty by the accused to charges relating to those two discrete "importations" are such as not to warrant the further prosecution of breaches of State law as an abuse of process. I include in consideration of this matter concepts that were not the subject of particular discussion, but matters such as a plea at Bar of autrefois convict or alternatively matters giving rise to an "issue estoppel."
In relation to the two charges to which the offender pleaded guilty, at the Local Court, she being the accused in this Court, she pleaded guilty to a charge shortly described as "import prohibited imports". The Court Attendance Notice identified the first charge as:
"on or about 24 May 2015 at Sydney International Airport in the State of New South Wales you did import by international post prohibited imports, namely 100 oxymetholone tablets of an unknown purity."
The prosecutor then avers to various facts setting out the basis upon which that allegation is made out, the identification of oxymetholone as an anabolic steroid, the fact that the accused, or then defendant, did not have written permission to import the goods, and that the accused "caused the goods to be brought into Australia. This was an offence in 2015 contrary to s 233(1)(b) Customs Act 1901. The plea of guilty by the accused to that charge was an acknowledgement of her guilt of being responsible for bringing the relevant goods into the country without having ever taken possession of them.
The second charge she pleaded guilty to was a charge in its terms alleging that she:
"on or about 26 August 2015 at Sydney International Airport in the State of New South Wales did import by international post prohibited imports, namely 578 tablets of methandienone and 50 tablets of oxandrolone in an unknown total pure weight."
By definition the charge she pleaded guilty to was an acknowledgement of importing by international post those drugs without having taken possession of them. Although there is an averment to the fact as a particular of the charge brought against the accused that she had, in fact, "signed a FedEx document for receipt of the consignment and taken possession of the consignment," that is not a particular in the charge relied upon in the prosecution of her at the Local Court. By definition the charge alleges the commission of the offence by importation to the "International Airport". The averments set out within the Court attendance notice merely set out particulars of purported "facts" relied upon to establish both the physical element, if I could call it that, or the conduct element, and the fault element of that particular charge. I have a statement of the facts, I should hasten to say, in relation to the basis upon which those two matters were charged.
I pause for a moment to come back to the way the matter was argued before me and deal with the arguments briefly. I have notes of course of everything that has been put, but I do not have a transcript, delivering judgment only shortly after the submissions are finished.
The Crown in its initial submissions, prompted by my request, identified what I understood to be the character of the supplies identified in relation to counts 1 and 2. I have already referred to some detail relating to the first supply. The Crown's submission to me that the basis upon which that is prosecuted is either as an offer to supply to an individual or individuals that were in custody at Goulburn gaol or agreeing to supply those people. The Crown also submitted that another basis for supply was the attempt by the accused to possess the drugs for the purpose of supply. Section 3 of the Drug Misuse and Trafficking Act, the "definition" section of the Act, defines "supply" as "including":
"… sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping and having in possession for supply...or attempting any of those acts or things."
The second count on the indictment, as I said earlier, included on the Crown's case, an offer to supply, an agreement to supply, and also possession for the purpose of supply, in the context of the drugs being delivered to the accused, but she being arrested shortly after signing for them. I point out in passing that the averment of the Commonwealth Crown in respect of the particulars relied upon in respect of the importation in August 2015 in my view, whilst providing detail of the basis upon which the Crown sought to prove its case, does not set out what was essentially pleaded as the character of the offence. The matter was pleaded on the basis that the offence was completed when the relevant delivery arrived in Australia in circumstances where the tribunal of fact would have to be satisfied that it was intended on the part of the accused that it should remain in Australia. I will come back to that aspect of the matter as it is reflected in the decision of Campbell to which learned counsel for the accused referred: Campbell v R (2008) 73 NSWLR 272.
Mr Waterstreet essentially as I understood the submissions made to me, and I do not say that critically of him, but reflecting upon them from the notes that I made was essentially making two points to support an application or a submission that the filing of the indictment in respect of counts 1 and 2 represented an abuse of process. It was submitted as I understand it that although there is no duplicity in the counts themselves, there is submitted by reference to the Crown's case statement an uncertainty or a lack of particularity of matters relied upon in order to prove the accused guilty, particularly in relation to count 1. That what the Crown was trying to do in proof of count 1 was "roll up" a number of criminal acts as proof of guilty of the accused in relation to the count, relying upon the case of Walsh cited by him ((1996) 188 CLR 77) relying upon the citation that he gave me. He submitted that this lack of particularity in the detail of the Crown's case statement and even from the Crown's helpful oral exposition of the Crown case was such that as I would understand it, perhaps using my words, created an unfairness that would warrant the stay of the indictment.
There are a couple of problems with this submission. Firstly, with respect, I do not believe one could by reference to the Crown case statement identify a level of lack of particularity such as to create unfairness to the accused. Secondly, the reference to the decision of Walsh made by Mr Waterstreet, accepting his summary of what that case was concerned with, is not relevant to this case. The Crown case, as I have earlier pointed out, is not one of seeking to prove a particular "supply" by rolling up a number of alleged criminal acts in proof of the count. It is true to say that there are a number of intercepted telephone conversations which clearly in their terms are related to or concerned with the potential supply prohibited drugs accepting, as a tribunal of fact must, that the conversations are about prohibited drugs other than the supply of the particular drugs that were imported in May 2015.
However, the Crown is not alleging against the accused that she is guilty of the relevant supply pleaded on the basis that she also supplied or agreed to supply or offered to supply other prohibited drugs. What the Crown would argue in due course, and this is a matter of admissibility, not something that would go to the provenance of the indictment, is that earlier conversations of the accused with particular people concerned allegedly with the supply particularised in count 1, provide a context for understanding the state of mind of the accused at the time of the alleged commission of the offence. There was a second point to be made about the character of the way in which the charge is particularised. It seems to me with respect that count 1 ought be re particularised to conclude some date in May. It is a little misleading to give it the same period of time as reflected in count 2. Anyway, that is a matter for the Crown. But the "particulars" are not essential in this particular case as they are pleaded in the indictment. They just provide a range of dates within which it is said the offence is completed. But that is a matter that the Crown may attend to between now and any commencement of the trial.
The second argument put by Mr Waterstreet is an argument that relates to the definition of the word "import" as it relates to what the accused, the defendant as she then was, pleaded guilty to at the Local Court and was dealt with pursuant to Commonwealth legislation. He submits that the current definition of "import", which has operated since 2010, was of such a nature as to require the Crown to establish matters that were covered by the charge in the Local Court as the basis upon which the Crown has sought to prove count 2, and 1 for that matter.
The relevant definition now under s 300 of the Criminal Code Act states that the word:
"'import', in relation to a substance, means import the substance into Australia and includes:
(a) bring the substance into Australia; and
(b) deal with the substance in connection with its importation."
The essence of the submission made is that by reference to some decisions I will turn to shortly, if the requirement of the proof of the charge of "import" to which the defendant as she then was pleaded guilty to at the Local Court, included a requirement for her to admit to "dealing" with the substance in connection with its importation, that in effect "covered the field" in respect of what was required to be proved pursuant to s 25 of the Drug Misuse and Trafficking Act 1986.
In order to deal with the issue of "covering the field," which is a fairly general expression and not meant to be a legal concept, I was at the commencement of these proceedings taken to a number of authorities which I have read dealing with issues concerned with any tension that might exist between Commonwealth laws and State laws that purportedly seek to sanction criminally the same conduct. The first case in time is a decision of Stevens, an unreported decision of the New South Wales Court of Criminal Appeal delivered on 15 May 1991. In that decision the point in question was whether the offence(s) in breach of the State Act (the Drug Misuse and Trafficking Act) that the offender was convicted of, was rendered unconstitutional by inconsistent Commonwealth legislation. In relation to that aspect of the matter the claim of the appellant arose out of an argument that the then Commonwealth legislation in relation to possession of prohibited imports and the importation of narcotic drugs overrides and renders invalid State legislation within the Drug Misuse and Trafficking Act.
The Court rejected the argument that there was "inconsistency" between the Commonwealth and State Act within the meaning of s 109 of the Constitution, indicating that the particular offences identified within the State Act were not "on all fours" with Commonwealth legislation in relation to prohibition upon the importation of the equivalent of prohibited drugs or possession of prohibited drugs that had been imported. It was held, amongst other things in the case that s 233B, of the then Commonwealth Act was, "essentially directed in relation to narcotic goods forbidding the importation of those goods." Whereas the provisions of the Drug Misuse and Trafficking Act went to other conduct. At p 12 of the judgment the Court held:
"The clear scheme of s 233B and its references to possession of narcotics, being to facilitate the prohibition of the importation of narcotic goods, one may contrast that purpose with the evident purpose of the State Act, which has nothing to do whatsoever with the question of importing goods. Its sole purpose is to control within New South Wales the use of prohibited drugs and prohibited plants and to create offences in respect thereof."
The Court went on to examine the structure of the Act. It said:
"It is, of course, dealing with the narcotics goods covered by the Commonwealth Act. But it is a measure designed to operate in respect of the narcotics goods to which it applies anywhere in New South Wales and irrespective of their origin, ie, whether they are imported or not. Its purpose is not in any way to operate as control over the importation of narcotics into New South Wales or Australia. The purpose of the two Acts is different, one being to control imports of narcotics, the other to control and create offences in respect of the possession and supply of narcotics in New South Wales for the benefit and protection of the community in New South Wales."
The reasoning in Stevens was upheld in the decision of the Court of Criminal Appeal of El Helou [2010] NSWCCA 111. Then Allsop P, in the leading judgment for the Court, summarised the matter by indicating that Mr El Helou had pleaded guilty to a charge of knowingly take part in the supply of a prohibited drug of more than a large commercial quantity, had been sentenced to a term of imprisonment then in respect of which the Crown sought to appeal its inadequacy. Mr El Helou then sought to appeal against his conviction, notwithstanding his plea of guilty, on the ground that the provision of the Drug Misuse and Trafficking Act 1986 under which he was convicted was "constitutionally invalid." His Honour went on to deal with the relevant provisions dealing with both the Commonwealth offence and the State offence and he noted, amongst other things, s 300.4 of the Criminal Code Act 1995 (Cth) provides as follows:
"(1) This part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2) Without limiting subs (1), this part is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:
(a) an act or omission that is an offence against a provision of this part; or
(b) a similar act or omission;
an offence against the law of the State or Territory."
Section 300.4(3) noted that:
"Subsection(2) applies even if the law of the State or Territory does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty provided for in this part;
(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this part;
(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this part."
His Honour pointed out that this particular provision, relevant in the current case, amounts to:
"...an express statement of parliamentary intention that Commonwealth law is not to cover the field as the only law of the Federation to deal with the subject matter [23]."
He noted that it was true that the inconsistency can arise from how the laws operate and how the relevant executives administer them, but in this particular matter it was:
"...simply not correct to say that it is impossible for both laws to be obeyed nor can it be said in the light of 300.4 that the Commonwealth legislative intent was that the subject of 306 including penalty be dealt with only by Commonwealth law [28]."
He cited Stevens, the case to which I earlier referred. He said ultimately there was no invalidity or inoperativeness of s 25(2) by reason of s 109 Constitution Act [34].
This brings me to two judgments in relation to the matter of Standen. The first judgment was at first instance by James J, delivered in February 2011, when he declined to order a stay of proceedings in respect of purported conflict between the terms of count 1, which was a count brought under Commonwealth legislation, and count 2, a count brought under the Drug Misuse and Trafficking Act. Count 1 was a charge in relation to Mr Standen that he between 2006 and 2008 with others imported a substance intending to use or believing that another person intended to use any of the substance to manufacture a controlled drug, the substance being a border controlled precursor and the quantity imported being a commercial quantity.
Count 2 was an allegation that between the same dates in New South Wales and elsewhere the accused "knowingly (took) part in the supply of an amount of a prohibited drug, 300 kilograms of pseudoephedrine, being an amount which was not less than the large commercial quantity applicable to the prohibited drug." Time at this point, and purpose, does not allow or require a full exposition of the reasoning in the case. His Honour identified that the application wound up being one that the second count in the indictment be stayed as an abuse of process. It was sought to be stayed as an abuse of process on the basis that the offences in count 1 and count 2 represented the "same criminality" and if there was any separation in the criminality, it was "slight."
The learned trial judge noted, amongst the authorities which concerned him, the decision of Pearce v R [1998] 194 CLR 610. In that appeal the majority of the High Court dismissed an appeal against conviction in the end. It dealt with the issue of whether in fact an offence pursuant to s 33 Crimes Act 1900 (NSW) and an offence under s 110 of the same Act were in fact manifestations of the same criminal activity. It was argued in Pearce that "inflicting grievous bodily harm" was an element of both the offences and the same conduct was relied upon as establishing that element in the case of both offences. In that case there had been an application to stay a proceedings refused by the trial judge, leading to Mr Pearce pleading guilty.
The judgment of James J in Standen cited paras [11] [13] and [29] [31] of the decision of the majority in Pearce. It is worth just briefly summarising what those passages state. Firstly, the High Court pointed out that as the range of crimes and punishments for crimes expanded it has become apparent that a single series of events can give rise to several different criminal offences to which different penalties attach. It has been recognised that an offender should be punished only for the offence with which he or she was charged and not for some offence or version of an offence not charged. As a corollary to the second matter, prosecuting authorities have sought to frame charges against an accused that will reflect all of the accused's criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of that conduct. The majority held (at [29]):
"Confining the availability of the plea in bar in this way does not deny the existence of the inherent powers of a Court to prevent abuse of process. That there may be cases in which the repeated prosecution of an offender in circumstances where the offender has no plea in bar available would be an abusive process, as was illustrated in Rogers v The Queen (1994) 181 CLR 251.
However, the decision about what charges should be laid and prosecuted is for the prosecution [citing the 1996 decision of Maxwell v The Queen]. Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily.
There was, however, no abuse of process in charging this appellant with the two counts [under the two sections I earlier referred to]. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different and different in important respects, the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose [citing Williams v Spautz, a judgment I earlier referred to]."
Such, I hasten to say, is the case here. The majority of the High Court went on to say:
"To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately."
Although it was noted in the judgment of James J that Gummow J's judgment in Pearce, which was the minority judgment, had said: "It should be observed that the inclusion of separate counts for what in substance, if not entirely in form, is the same offence may be an abuse of process."
I appreciate their Honours there were dealing with the issue of counts on the same indictment having the conflict of which Mr Waterstreet spoke in his submissions about counts prosecuted at different times under Commonwealth and State legislation. But I accept as a general proposition that the situation is not confined to counts on the one indictment and may arise out of a prosecuting of an offender in relation to one offence at one time and then prosecuting the offender at a later time in relation to a separate offence, irrespective of whether those offences arise under Commonwealth and State legislation or under one or other of the regimes.
James J cited the decision of Nahlous as one relied upon by the appellant, but that did not illustrate what was the situation in the Standen situation. That situation is more analogous to the situation with which I am concerned, save for one aspect and that is the two charges were on the one indictment as opposed to being prosecuted at different times here. He went on to conclude in his judgment at [83] that, by reference to Pearce, a single series of events may give rise to several different criminal offences to which different penalties attach and that it was not necessarily an abuse of process for the prosecuting authorities in those circumstances to bring more than one charge. He noted the different legislative purposes of the Commonwealth and State legislation. He concluded also, on that matter, that the criminal conduct on the part of the accused which would fall under count 2 would only to a limited extent not fall within count 1, but the charges in the indictment reflected all of the accused's alleged criminal conduct. Thus, it was necessary for count 2 to be included in the indictment. That judgment stood the test of appeal on appeal pursuant to s 5F.
I need not dwell for long upon the consideration of the matters that arose out of James J's judgment. Their Honours in the Court of Criminal Appeal reflected upon the character of the offending (Standen v Commonwealth DPP [2011] NSWCCA 187). They noted the elements of the respective charges that were said to be in conflict. Firstly, in respect of count 1 in the Standen case, they required the Crown to prove that the accused imported a substance, and secondly, the substance was a "border controlled precursor." There were other elements, such as the requirement to be established to be a commercial quantity and matters going to the fourth element concerning the character of the agreement. Count 2 required proof of an attempt by the accused to have in his possession, thirdly, a large commercial quantity of the prohibited drug, fourthly, for the purposes of supply.
Likewise here in considering the different charges, the two charges dealt with in the Local Court under Commonwealth law in relation to this accused required proof of the accused, firstly, importing, secondly, prohibited imports. They were the essential elements or ingredients of the charges dealt with at the Local Court by the plea of guilty of the accused. In relation to the supply matters here by reference to the detail of the count, the Crown would be required to prove as essential elements of each of the two counts, putting aside the issue of particulars, firstly, that the accused supplied, secondly, a prohibited drug.
It is quite clear by reference to the extended definition of supply that what is required to be proven in relation to the supply of prohibited drugs encompasses a much wider ambit of conduct on the part of the accused than required to be established in relation to "importing" the same drugs. On the facts of the case that is concerned with conduct that goes beyond what is required to be established in order to prove that the accused imported the drugs.
Turning back to the decision of the Court of Criminal Appeal, the Court concluded by reference to Standen and this conclusion is analogous to the situation in this case that Standen's case was:
"Not a case like Nahlous, in which one can say that one offence is the principal offence and the other is merely incidental or subsidiary. There is a substantial criminality associated both with importation and with steps taken after importation. It does not seem to me that either is purely incidental or subsidiary to the other [28]."
I further cite [29] [30] from that judgment.
Thus, out of those authorities arise two propositions. Firstly, there is clearly no constitutional inconsistency between the operation of the relevant Commonwealth legislation and the provisions of the Drug Misuse and Trafficking Act with which I am concerned in respect of charges brought in relation to related conduct. Secondly, in determining the issue of whether there is in reality, using my expression, "a duplication" of allegations in order to prove both Commonwealth and State charges, it is clear by reference to the elements of the offence that if different things are required to be established in respect of the allegations under the Drug Misuse and Trafficking Act and under the relevant Commonwealth legislation then there is no duplication, issue estoppel or abuse of process.
I should also say by reference to the facts of the matter that whilst the proof of the importation is a relevant matter to proof of guilt of the accused in relation to one and two, it is but one step in the course of proof of the current offences. In other words, the matters required to be proven, as even particularised in the averments to the Court attendance notice, are only part of what the Crown is required to prove in relation to counts 1 and 2 in the indictment. Whichever way one looks at the manner in which the Crown seeks to prove its case, that is possession for the purpose of supply or attempted possession for the purposes of supply, offering supply, offering for supply and/or agreeing to supply.
What is required to be proven is beyond mere "possession" of the relevant prohibited drug and beyond merely "importing" the prohibited drug. The simple proof of importation would not of itself prove the guilt of the accused in relation to the counts. In fact the way the Crown seeks to prove its case is by establishing guilt out of the accused's own mouth and her discussions with people to whom she is allegedly offering to supply or agreeing to supply prohibited drugs, or the particular prohibited drugs. More specifically, as I understand it, both in relation to count 1 and count 2 directly, at the behest of people within custody, ordering the drugs that were imported online for the purposes of giving them to the people with whom she was discussing that topic.
An argument "developed" however in the course of the morning, and quite properly concerning the definition under the Criminal Code (Cth) in respect of the word "import." I earlier read that onto the record. He cited two cases, both of which I have had a brief opportunity to read, Campbell v The Queen (2008) 73 NSWLR 272, and a South Australian decision, which addresses the current definition of "import" which I read onto the record and came into force in 2010, of R v Tranter [2013] SASCFC 61.
In Campbell the Court was dealing with a different definition of import and different provisions dealing with then the provisions that governed the charges that were prosecuted against this accused in the Local Court. In relation to the definition of "import", the provisions in 2008 spoke to the requirement to establish, in order to commit an offence of "import", firstly, that a person imported a substance either or both in the following manner:
1. The person intends to use any of the substance to manufacture a controlled drug;
2. The person believes that another person intends to use any substance to manufacture a controlled drug. The charges there are very different from those admitted to by the prisoner at the Local Court three years ago. However, the Court discussed the meaning of the word "import" as it then applied in the Criminal Code and concluded that the physical element of "import" disclosed in 307.11 of the Criminal Code "occurs when border controlled drugs and precursors arrive in Australia from abroad and are delivered to a point which results in the goods remaining in Australia." That was held both by Spigelman CJ and Weinberg AJA.
In the case of Tranter the Court was not dealing with a case on foot with the allegations contrary to Commonwealth law admitted by this accused. It was dealing with a different situation involving an "attempt to possess a border controlled drug" in circumstances where the border controlled drugs that was imported had been substituted. Hence the allegation of attempt. In discussing the operation of the new definition that is set out in s 300 that I earlier read, the Court noted from the "explanatory memorandum" to the amending Act as follows:
"The definition of import has been extended to include 'dealing' with a substance in connection with its importation. As such the new definition of import relates to a process that extends before and beyond the period of the goods being landed in Australia. The effect of this amendment is that the Commonwealth drug importation offences will capture criminal activity related to the bringing of drugs into Australia and subsequent criminal activity connected with the importation of drugs."
I pause for a moment to indicate that, as the Crown indicated in summary, when none of us have had a great deal of opportunity to research this as much as we all would have wished, the definition referred to by Mr Waterstreet was not an "exclusive" definition. It was an inclusive definition. What the definition seeks to do now in the context, it would seem to me, of the decision in Campbell, or perhaps consequent to the decision of Campbell, is extend the coverage of the crime of importation to conduct that goes beyond conduct concerned with both conduct and fault elements related to the importation of the drugs in the sense discussed by Spigelman J. That is importing the drugs to the point where the goods can be concluded to "remain in Australia."
It may involve of course proving possession by a person of the relevant border controlled drug, but it may not necessarily require that. The terms of the definition with the use of the word inclusive reflect upon what is said in the decision of Tranter to be this new "extended" definition, which purports to capture a range of conduct beyond simply the matter of proving the fault and conduct elements involved with the importation of a relevant substance, by bringing the goods from abroad to arrive in Australia to the point where the goods remain in Australia.
Contrary to what was submitted by Mr Waterstreet, the second charge brought against the accused at the Local Court was particularised to rely upon her possession of the drug as evidence of her importation of the drugs, but it was not a requirement in proof of the charge that she did possess the drugs. It was simply a factual matter in addition to a number of other factual matters to be taken into account in coming to the conclusion that at the relevant time or times required to be established the fault and conduct elements had existed.
It is interesting to note, as I pointed out to Mr Waterstreet, no such requirement appears to have been understood by the defendant nor understood by the prosecution in respect of the first charge that she pleaded guilty to at the Local Court, because she never possessed the drugs but she admitted to the importation of them. Thus, when we turn back to s 25 of the State Act, one can see, as I have said, the significance of the character of the charges both factually and legally as being one that is concerned with connected but ancillary or additional conduct to that pleaded in relation to the two charges dealt with in the Local Court.
I must say for completeness that if in fact what Mr Waterstreet argued was the case, that is that the Crown in order to prove importation had to prove both what is understood as "importation" as discussed in Campbell and also prove compulsorily that the accused "dealt in the drugs," bearing in mind the discussion about the use of the word "deal" in Tranter, the conduct that is anticipated to be prosecuted in relation to counts 1 and 2 in the indictment would still be seen as overlapping with but additional to the conduct required to established within that, if I can call it "wider definition" identified by Mr Waterstreet in his helpful submissions. I should point out the issue of an "extended definition" and a "wider definition" and the relationship of those expressions to one another has been discussed. But the definition in s 300 (Criminal Code) is an "extended definition". It does not mean that the word import has a "wider meaning" that is required to be proven in every case. It is in these circumstances I concluded that there should not be a permanent stay of proceedings. I am very mindful of the fact, as I have observed to the learned Crown Prosecutor, that the case is one which to my mind properly should have been prosecuted in the Local Court given the character of the drug and the quantities and the amount of money involved. It came to this Court as I understand on the coat tails of a more serious charge of "conspiracy", which has been withdrawn. But as I pointed out, the matter is here now and there is little that any of us can do about it.
Thus, for those reasons I have concluded there is no basis for a permanent stay of proceedings by reason of the fact that the indictment in its present form constitutes an abuse of process.
[2]
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Decision last updated: 29 January 2019