(2008) 73 NSWLR 272
R v El Helou [2010] NSWCCA 111
Regina v Jones
Source
Original judgment source is linked above.
Catchwords
(2008) 73 NSWLR 272
R v El Helou [2010] NSWCCA 111
Regina v Jones
Judgment (2 paragraphs)
[1]
Judgment
1HODGSON JA: On 24 November 2010, the applicant was indicted before James J on an indictment containing three counts, to all of which he pleaded not guilty. The counts in that indictment were that the applicant:
between 1 January 2006 and 2 June 2008 at Sydney in the State of New south Wales and elsewhere, did conspire with Bakhos Jalalaty and divers others to import 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, namely pseudoephedrine, and the quantity imported being a commercial quantity.
between 1 January 2006 and 2 June 2008 at Sydney in the State of new South Wales and elsewhere, did knowingly take part in the supply of an amount of a prohibited drug, to wit 300kgs of pseudoephedrine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug.
between 1 January 2006 and 2 June 2008 at Sydney in the State of New South Wales and elsewhere did conspire with Bakhos Jalalaty and divers others to pervert the course of justice in relation to the judicial power of the Commonwealth, by agreeing that Mark Standen would use his knowledge and information obtained by him in order to avoid proceedings being instituted or successfully prosecuted with respect to an offence of importing a substance in contravention of Commonwealth law.
2On 17 February 2011, James J dismissed an application by the applicant that the second count be stayed as an abuse of process.
3The applicant has sought leave to appeal from that decision, pursuant to s 5F of the Criminal Appeal Act 1912.
4The background to the applicant's application before the primary judge was set out in his judgment as follows:
4 The first count in the indictment is based on s 307.11(1) and s 11.5 of the Commonwealth Criminal Code 1995 ("the Code"). Under s 307.11(1) the maximum penalty of imprisonment is imprisonment for 25 years.
5 The second count in the indictment is based on s 25(2) of the Drug Misuse and Trafficking Act 1985 New South Wales. As the amount of the prohibited drug alleged is not less than the large commercial quantity applicable to pseudoephedrine, the maximum penalty of imprisonment is imprisonment for life.
6 The third count in the indictment is based on s 42 of the Commonwealth Crimes Act . The maximum penalty for an offence under s 42 is imprisonment for five years.
7 The prosecution, being a prosecution for two offences under Commonwealth law and one offence under State law, has been brought by the Commonwealth Director of Public Prosecutions.
8 The Crown case against the accused on the three charges is summarised in a statement ("Summary of Crown case"), which runs to 29 pages. Very broadly stated, the Crown alleges that the accused, who during the period within which the offences were allegedly committed was the Assistant Director Investigations of the New South Wales Crime Commission, conspired with Bakhos Jalalaty and others to import a commercial quantity of pseudoephedrine, a precursor used in the manufacture of illicit drugs (count 1); the accused knowingly took part in an attempt by Bakhos Jalalaty to possess a large commercial quantity of pseudoephedrine for the purposes of supply, being the same amount of pseudoephedrine as is referred to in count 1 (count 2); and the accused conspired with Jalalaty and others that he would use knowledge and information obtained by him in the course of his career in law enforcement to prevent criminal proceedings being instituted or successfully prosecuted with respect to the importing of the pseudoephedrine (count 3).
9 The Crown alleges that the pseudoephedrine to be imported was to be concealed in a shipment of rice. A shipment of rice arrived in Australia but did not contain any pseudoephedrine. No pseudoephedrine was actually imported and Jalalaty did not obtain possession of any pseudoephedrine.
10 It is apparent that, at a very early stage, the accused, Jalalaty, a man named James Kinch who is alleged by the Crown to have been a co-conspirator, and other persons came under suspicion and covert surveillance by the authorities. Warrants for listening devices and telephone intercepts were obtained and a large number of conversations and in particular conversations between the accused and Jalalaty were recorded or intercepted and a large number of emails were accessed.
11 Bakhos Jalalaty, who is referred to in counts 1 and 3 in the indictment, pleaded guilty before me on 17 May 2010 to a single charge which closely corresponded to the charge in count 1 of the indictment against the accused. The Crown accepted Jalalaty's plea of guilty to that charge in full discharge of all charges against him. On 20 December 2010 I passed sentence on Jalalaty for the offence to which he had pleaded guilty.
5The contention of the applicant before the primary judge was set out by the primary judge as follows:
23 It was submitted that the criminality alleged against the accused was that he had used the special skills, knowledge and contacts he had acquired as a law enforcement officer to assist Jalalaty to import pseudoephedrine into Australia. This alleged criminality was captured by count 1 in the indictment. There was no separate criminality on the part of the accused, which would fall within count 2 but would not fall within count 1. If the accused was found guilty of the offence charged in count 1, the sentence for that offence would be capable of reflecting all of the accused's criminality.
24 In response to submissions made by the Crown that there was some separate criminality of the accused which would fall only within count 2, counsel for the accused submitted that any such separate criminality was slight and did not detract from his submissions.
25 Counsel for the accused submitted that the present case should be distinguished from other cases in which both an offence of importing drugs into Australia and an offence of supplying the same drugs within Australia have been charged, but in which the offender had had some actual involvement in the supply of drugs within Australia.
26 It was submitted by counsel for the accused, and not disputed by counsel for the Crown, that the same body of evidence would be admissible on both charges.
27 Counsel for the accused pointed to the different maximum penalties for the two offences, imprisonment for 25 years in the case of the offence charged in count 1 and imprisonment for life in the case of the offence charged in count 2, and to the circumstance that, if a life sentence is imposed in New South Wales, the prisoner has no prospect of being released on parole.
28 In support of his contention that the inclusion in the indictment of count 2 was an abuse of process counsel for the accused referred to a number of cases, including Pearce v the Queen (1998) 194 CLR 610 especially at 620-621 (29-31) and 629 (67); Nahlous v R (2010) NSWCCA 58; some other New South Wales cases having some connection with Nahlous ; and Blay v the Queen (2006) WASCA 248; 205 FLR 414. I will consider these cases later in this judgment.
6The primary judge considered a submission for the Crown that the applicant's conduct in participating in certain recorded conversations with Jalalaty was conduct which would not fall within Count 1 but would fall within Count 2. The primary judge drew the following conclusions in relation to these conversations:
54 There is some force in the submissions made by counsel for the accused. Nevertheless, I conclude that these parts of conversations to which I was referred contain some evidence of conduct on the part of the accused which would fall within count 2 but which would not fall within count 1. Even where Jalalaty is describing what Jalalaty proposed to do, it would be open to a jury to consider that Jalalaty was seeking the accused's opinion about what Jalalaty was proposing to do and that the accused was listening to Jalalaty on the basis that his advice was being sought.
55 In transcripts of conversations between the accused and Jalalaty there is some evidence of a number of the particulars in which the Crown alleges the accused advised Jalalaty about what should happen after the container was delivered, including the need to ensure that the drug was removed from the rice bags in order to ensure that it could not be traced back to Jalalaty; the importance of not speaking near the container in which the drugs were to be secreted due to the possibility that the container might contain a listening device; the importance of cleaning out the warehouse after the actual supply of the drugs due to the possibility of detection of microscopic quantities of the drug; and the need to move the drug from Jalalaty's warehouse.
7The primary judge then considered a number of authorities, and in particular Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, Nahlous v R [2010] NSWCCA 58, Blay v R [2006] WASCA 248; (2006) 205 FLR 414, Environment Protection Authority v Australian Iron and Steel Pty Limited (1992) 28 NSWLR 502.
8The primary judge's ultimate conclusions were as follows:
87 The elements of the two offences are clearly different and the two offences can be said to address different aspects of the applicant's alleged criminal conduct. I give some limited weight to these factors, while bearing in mind what Gummow J said in Pearce at 629(67).
88 I have already noted that it was not in dispute on this application that the same evidence or virtually the same evidence would be admissible on both charges.
89 The difference in the maximum penalties for the two offences was a factor relied on by both the applicant and the Crown and the opposing arguments seem to me to largely offset each other. As regards the expression of opinion by the court at paragraph 19 of Nahlous , that the difference in the maximum penalties for the two offences was "not irrelevant", I do not consider that in the present case the offence charged in count 1 can be regarded as being "on any view the principal offence". In the present case, each of the offences could be regarded as a principal offence.
90 I have found that there is some, even if limited, alleged criminal conduct on the part of the accused which would fall within count 2 but would not fall within count 1. If the charges in the indictment are to reflect all of the accused's alleged criminal conduct, it is necessary that count 2 be included in the indictment. I am conscious that, if both counts 1 and 2 are included in the indictment and there is a conviction on both counts, great care will be necessary in sentencing the applicant, in order to avoid double punishment.
91 The conclusion I have reached is that I should dismiss the application that the second count be stayed as an abuse of process.
9The applicant relies on the following grounds:
That his Honour erred in determining that certain evidence of the applicant's alleged criminality, taken at its highest, was not covered by the indictment, in particular count 1, absent count 2;
Alternatively, that his Honour erred in finding implicitly that a discrete body of evidence of the applicant's alleged criminality not otherwise covered by the indictment absent count 2, cannot constitute an abuse of process.
10I take ground 2 to mean that, even if there were some evidence of criminality not covered by Count 1, nevertheless Count 2 could still be an abuse of process.
11Mr Ierace SC for the applicant relied particularly on what was said in Pearce at [29] to [31] in the joint judgment of McHugh, Hayne and Callinan JJ, and at [67] in the judgment of Gummow J:
[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 its process. That there may be cases in which the repeated prosecution of an offender in circumstances where that offender has no plea in bar available would be an abuse of process is illustrated by Rogers v The Queen.
[30] The decision about what charges should be laid and prosecuted is for the prosecution. 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.
[31] There was, however, no abuse of process in charging this appellant with both counts 9 and 10. 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 purpose35. 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 Simoni36, 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.
...
[67] In Australia, concerns with "double jeopardy" have come to be expressed at common law in differing ways by an evolutionary process which has crossed what often in the legal system is a false divide between substance and procedure. Thus, even if a plea in bar is not available, successive prosecutions may be an abuse of process. It should also be accepted 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. For the reasons given by the other members of the Court, there was no abuse of process here. The decision of the Court of Criminal Appeal to dismiss the appeal against conviction was correct.
12He submitted that there was an abuse of process in this case, in that Counts 1 and 2 were for what was in substance the same offence, and there was no criminality alleged which would fall within Count 2 and not within Count 1.
13In support of the contention that there was an abuse of process in this case, Mr Ierace relied on Nahlous , a case in which the offender had been sentenced in respect of selling unauthorised decoders to an under-cover police officer (offences pursuant to ss 135ASB(1) and 135ASC(1) of the Copyright Act 1968 (Cth), having a maximum penalty of five years) and also for dealing in the proceeds of crime, being the money paid by the under-cover officer to him for the decoders (an offence pursuant to s 400.6(1) of the Criminal Code 1995 (Cth), with a maximum penalty of ten years). The offender challenged the sentence for the Code offence. In its reasons upholding that challenge, the Court of Criminal Appeal (McClellan CJ at CL, Howie and Rothman JJ) said this:
[11] In effect the complaint by the applicant was that the gravamen of his criminality was in the sale of the decoders not in the receipt of $15,000. It was submitted that the receipt of the money was "part and parcel" of the sale of the decoders. It was noted that his Honour never differentiated the Code offence from the decoder offences except in the sentence imposed and does not explain how his comments, set out in the passage above, can be relevant to the Code offence. It was submitted that the Judge failed to give any reason explaining why the criminality of having $15,000 received from the sale of the decoders was so much more serious than the sale itself so that it could justify a sentence that was over three times longer than the sentence imposed for the sale.
[12] The Crown in written submissions emphasised that this court should be concerned with the overall sentence imposed and not how it was structured. The submission was that this court should find no lesser overall sentence was warranted for the offences for which the applicant was sentenced: see s 6(3) of the Criminal Appeal Act 1912 (NSW). Considerable reliance was place upon a passage in the judgment of Hunt CJ at CL in R v Janceski [2005] NSWCCA 288 at [25]. That was a Crown appeal and says nothing about the operation of s 6(3). More recent authority, Arnaout v R [2008] NSWCCA 278; 191 A Crim R 149 indicates that the operation of that section is not free from doubt as evidenced by the conflicting views in the judgments of Basten JA and Price J. The dispute is whether s 6(3) refers to a particular sentence or the overall sentence imposed upon the applicant. For reasons that will become apparent we do not need to enter into that debate.
[13] We believe that there is considerable merit in the complaints made by the applicant. However, they do not go far enough. In our view the whole sentencing exercise miscarried principally because the applicant should never have been charged with the Code offence. Had he sought to have that charge permanently stayed as an abuse of process we cannot see how the application could have been refused.
[14] In Thorn v R [2009] NSWCCA 294 this court raised concerns about the use of the section in the circumstances of a person who was engaged in taxation fraud. As well as being charged with the actual fraudulent conduct, he was also charged with an offence involving dealing with the money obtained by the frauds. In that case the activity was merely accessing the funds that he had derived from the frauds. The sentencing judge in that case failed to appreciate the nature of the criminal activity involved in what was called "the money laundering offence" and sentenced the applicant to an excessive sentence for that offence. As in the case now before the court, the offence to a certain extent concerned the profits of the applicant's own criminality and resulted in a miscarriage of justice. However, unlike the present case, there was some justification for the money laundering offence because it captured criminality of the applicant's co-offender, who had never been charged and yet was involved in a joint criminal enterprise with the applicant.
[15] In Thorn Howie J, who delivered the principal judgment of the court, stated at [27]:
This was an unusual use of a money laundering offence. To the extent that there was an overlap with the fraud offences the charge represented the use of the funds that had been dishonestly obtained under those offences. The criminality was very much in the obtaining of the funds not in their use. It is somewhat analogous to a robber being sentenced for both the robbery and being in possession of the stolen goods. But in the present case, according to the maximum penalties prescribed, the money laundering offence was more serious than the frauds by which the money was obtained. Further the money laundering charge was used to punish the applicant for his criminality arising from his partner's fraudulent conduct. As was noted earlier, there is no concept of a joint criminal enterprise under the Code, so the applicant could not be charged with his partner's fraudulent activity even though it was common activity of them both.
[16] In the present case we can see no justification whatever for the applicant being charged with the Code offence. In relation to the 50 decoders the criminality was in the sale as a result of which the owners of the services were deprived of their financial entitlement to rental charges for their use. The concept of a "sale" necessarily involves the seller obtaining some financial gain from the transaction. The receipt of the money was merely an element of the offence under s 135ASB(1).
[17] We appreciate that a person can by the one act commit two offences and, where the two offences address different aspects of the criminal conduct, there is nothing wrong with prosecuting the two offences or, subject to the principle of totality, with imposing separate sentences for the two offences. But in our view the receipt of the money as a result of the sale did not result in a separate act of criminality that warranted a separate charge and a separate penalty. We do not believe that there is anything in Pearce v R [1998] HCA 57; (1998) 194 CLR 610 that conflicts with the view that we have taken as to the inappropriateness of the prosecution of the Code offence as well as the decoder offence; see particularly at [31]. We believe that in the circumstances of this case it was oppressive to charge the applicant with both the sale of the decoders and the receipt of the money as a result of the sale. That is because in our view the offence of sale encompassed the criminality of possessing the proceeds of the sale.
[18] The Crown at the hearing of the appeal sought to argue that the two offences were aimed at different policies. The Code offence was intended to punish the possession of the proceeds of crime however they are obtained and the fact that the proceeds of the crime were in the public domain and could be dealt with or passed on to others. We accept that this may be a justification for the prosecution of such an offence particularly where the source of the funds is unknown, or where the proceeds were derived from the criminal act of another person or where the person is in some way dealing with the proceeds in order to hide their source or change the nature of the proceeds. But we cannot believe that it was the intention of Parliament that the offence should extend to the facts of the present case notwithstanding the width of the offence under the Code.
[19] It is in our opinion not irrelevant that the Code offence carries twice the maximum penalty prescribed for the sale offence, which on any view was the principal act of criminality. It was never the intention of the investigators that the applicant should keep the money he obtained from the sale. If the police officer intended at the time of handing over the money also to charge the applicant with an offence relating to the possession of the money, it was a clear case of entrapment. The applicant could have been arrested before the money was handed over and charged with an offence under s 135ASC(1) of offering to sell the 50 decoders. The maximum penalties for the offence of offering to sell a decoder and the offence of selling a decoder are the same. We do not see in the circumstances of this case how the actual payment of the $15,000 to the applicant impacted upon his criminality in offering to sell the decoders to the undercover police officer. We can see no forensic purpose in handing over the money other than to secure evidence of the sale.
14Mr Ierace also relied on what was said by McLure JA (with the agreement of Wheeler JA) in Blay , a case in which the offender had been charged with the Commonwealth offence of importing a quantity of the drug ecstasy and also with the State offence of possession of the same ecstasy with intent to supply, at [6] of his judgment:
[6] Further, there is no express or implied explanation in the sentencing Judge's reasons for ordering partial cumulation. Ordinarily that may not cause a difficulty but this is not an ordinary case. The Commonwealth offences in s 233B of the Customs Act are the equivalent of the State offences in s 6(1) of the Misuse of Drugs Act. Although the Commonwealth and State offences in this case focus for Constitutional reasons on different conduct at different stages in the process of drug trafficking and have different elements, they have the same purpose, being to prevent the distribution of illicit drugs in the community. Moreover, the Commonwealth offence and the applicable penalty for it incorporates a presumption, based on quantity, that the drug is imported for trafficking purposes. The overlap with the State offence is clear: the appellant is to be punished for aiding in the importation of drugs to be used for trafficking purposes and being in possession of the same drugs for the same purpose. The propriety or desirability of bringing two charges in such circumstances was not addressed. I have reservations as to its appropriateness. Counsel for the Commonwealth was unable to refer the Court to any case in which the question has been considered. My research has located only one case where an offender has been convicted of a Commonwealth and State offence for the same drugs: R v Slatinec [1999] NSWCCA 2. In that case the sentencing Judge ordered the sentences to be served concurrently. That was not an issue in the appeal nor the subject of comment by the New South Wales Court of Criminal Appeal.
15Mr Ierace submitted that the primary judge erred in holding (at pars [54] to [55] and [90] of his judgment) that there was some, even if limited, alleged criminal conduct on the part of the applicant which would fall within Count 1 but not Count 2. Although on the authority of R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272 the physical element of "imports" in s 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, nevertheless, Mr Ierace submitted, matters referred to in par [55] of the primary judge's judgment were still in pursuance of the conspiracy to import and any criminality involved in them could be taken into account in sentencing for Count 1. In support of that submission, Mr Ierace relied on the judgment of the Full Court of the Federal Court (Miles, von Doussa and Wienberg JJ) in Conway v The Queen [2000] FCA 461 at [256] - [260], in holding, on an appeal against conviction for murder, that evidence of payments made after the killing to contracted killers was evidence of matters in furtherance of the conspiracy to murder and thus admissible against all alleged conspirators:
[256] There are occasions where acts apparently done after the conclusion of a conspiracy or a joint enterprise will nonetheless be acts done in furtherance of the common design. One example is an agreement between the parties to give false information to the police in order to thwart their investigation.
[257] In R v Vrany (1979) 46 CCC (2d) 14 at 26 it was said that:
"... those who conspire to commit crime do not do so with any nice or careful delineation of the offence intended and a single conspiracy may encompass a number of closely linked crimes which may be essential to the success of the conspiracy and form part of the common design. This fact may then lead to the admission into evidence of acts and declarations of the one conspirator against another which occurred after the principal object of the conspiracy has taken place if those acts and declarations were in furtherance of the common design ..."
[258] In R v Baron (1976) 31 CCC (2d) 525 at 544 the relevant principle was formulated as follows:
"acts immediately connected with the crime specified as the object of the conspiracy and necessary for its successful completion are within the common design and in furtherance of the conspiracy."
[259] The common purpose or design alleged against Conway and McFie in the present case was not merely to have the deceased killed, but also to pay off her hired killers, thereby ensuring that the accused would not be implicated in the commission of the offence.
[260] We do not regard McFie's conduct in paying Steer and Williams $200 at the service station, as "mere narrative". It was rather an act on her part "in furtherance" of the common purpose. As such, it was open to the jury to treat what she did as evidence in the case against Conway. The same may be said of other conduct on her part which occurred after the murder of the deceased.
16In response to a submission for the Crown that the offences in Counts 1 and 2 had different elements, and that it was possible that there could be a conviction on one count and not the other, Mr Ierace submitted that there was no appreciable possibility of this.
17Although there was a theoretical possibility that the applicant could be found to have knowingly taken part in Jalalaty's supply of a prohibited drug, without being found to have entered into an agreement having all the elements necessary for the conspiracy charge, this was, Mr Ierace submitted, no a realistic possibility on the way the Crown put its case.
18Although there was a theoretical possibility that the applicant could be found to have conspired in relation to a "border controlled precursor" but not to have knowingly taken part in relation to a "prohibited drug", or vice versa, he submitted that this too was not a realistic possibility. Evidence relied on by the Crown, including evidence of knowledge of the accused concerning Jalalaty's storing of acetone (a chemical used in the manufacture of methamphetamine from pseudoephedrine) meant that, if the Crown proved either of these alternatives it must also prove the other.
19Mr Ierace also submitted that the gravamen of the criminal conduct alleged was importation, and in such cases it was unheard of to bring a charge of supply as well as importation. As in Nahlous , he submitted, the principal offence was importation and any intention or attempt to supply was purely incidental to that.
20I am not satisfied that the applicant has shown that it is an abuse of process to charge him with Count 2 as well as Count 1, and I propose that leave to appeal be refused.
21It is convenient to set out what appear to me to be the relevant elements for each of Count 1 and Count 2, in the case of Count 1 referring to relevant provisions of the Criminal Code , and in the case of Count 2 referring to relevant provisions of the Drug Misuse and Trafficking Act :
Count 1
That the accused entered into an agreement with one or more other persons (including at least Jalalaty): s 11.5(2)(a).
That the accused or at least one other party to the agreement (Jalalaty) intended that an offence would be committed pursuant to the agreement (s 11.5(2)(b)), namely, in this case, an offence under s 307.11 ( the offence ) involving the following elements:
(1) A person imports a substance: s 307.11(1)(a).
(2) The substance is a border control precursor, namely, pseudoephedrine: s 307.11(1)(c); s.300.2; s.314.6.
(3) A person(s) committing the offence either intend(s) to use any of the substance to manufacture a controlled drug or believes that another person intends to use any of the substance to manufacture a controlled drug: s 307.12(1)(b)(i) and (ii).
The substance would be a commercial quantity: s 307.11(1)(d); s 307.11(2); s 11.5(7)(a).
That the accused, or at least one other party to the agreement committed an overt act pursuant to the agreement: s 11.5(2)(c).
Count 2
Jalalaty supplied a large commercial quantity of a prohibited drug (s 25(2) and definition of "supply" in s 3(1)) in that:
(a) Jalalaty attempted;
(b) to have in possession;
(c) a large commercial quantity of a prohibited drug (pseudoephedrine);
(d) for the purposes of supply;
The accused knowingly took part (s 6) in Jalalaty's supply of a large commercial quantity of a prohibited drug (s 25(2)) in that he:
(a) knowingly took or participated in any step, or caused any step to be taken in the process of that supply (i.e., Jalalaty's attempt to possess a large commercial quantity for the purposes of supply); or
(b) knowingly arranged finance for any step in the process of that supply.
22It is clear that the elements are different, and that there is at least a theoretical possibility that the applicant could be found guilty of one and not of the other.
23I accept that it is likely that if the applicant is found beyond reasonable doubt to be guilty of one count he will be found guilty of the other; but I am not satisfied that the possibility of different verdicts is so remote that it can be dismissed. In particular, I think it is a realistic possibility that a jury could find beyond reasonable doubt that the applicant knew that the substance to be dealt with was some type of prohibited drug (this being sufficient for Count 2) but not that he knew it was pseudoephedrine or a border controlled precursor.
24In written submissions for the applicant, objections were raised to some of the recorded conversations relied on by the Crown. These objections were not pursued in oral submissions; and in my opinion it would not be appropriate for this Court on this application to rule on admissibility. However, these objections indicate the types of points that may be raised in relation to the extensive evidence relied on by the Crown; and in my opinion, in a case of this sort, it is not possible at this stage to say that, if the Crown proves beyond reasonable doubt that the applicant knowingly took part in Jalalaty's attempt to take possession of the drug, it must be proved beyond reasonable doubt that he made an agreement with all the elements required for the conspiracy charge.
25Thus, this is not a case like Nahlous where there was no possibility at all that the accused could be found guilty of one charge (in Nahlous , dealing in proceeds of crime) but not guilty of the other (in Nahlous , sale of unauthorised decoders), or vice versa.
26Also, I am not satisfied that, if the applicant is found guilty of both counts, all the relevant criminality would necessarily be captured by Count 1. It is true that the social evil sought to be combated by laws relating to the importation of drugs or precursors is that the drugs will be distributed in Australia; but in my opinion that does not mean that engagement in distribution cannot involve criminality additional to that involved in the importation.
27In the present case, the evidence to be relied on by the Crown suggests a single agreement; but it also suggests that this agreement involved assistance by the applicant not only in bringing it about that the substance be imported into Australia, with the intention that it be thereafter supplied, but also in bringing it about that thereafter the substance would actually be supplied within Australia. It may well be that acts of the applicant referable to the latter could be considered as being in furtherance of the conspiracy to import, and in that character could be evidence of the conspiracy to import and also, at least to some extent, capable of being taken into account in sentencing for that conspiracy. However, in my opinion, they are more directly in furtherance of that aspect of the agreement referable to supply within Australia, and even if they might be taken into account in sentencing for the conspiracy to import, they would be more directly relevant in sentencing for the supply.
28In my opinion, this is 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 substantive criminality associated both with importation and with steps taken after importation, and it does not seem to me that either is purely incidental or subsidiary to the other.
29The New South Wales Parliament has prescribed that life imprisonment is the appropriate maximum penalty for the offence in Count 2; and in my opinion it is not appropriate that this Court should find that it is oppressive for the prosecution to seek to give effect to this prescription of the New South Wales Parliament. There being no direct inconsistency with the Commonwealth legislation, the courts are required to give full effect to the State legislation: see Criminal Code s 300.4, R v El Helou [2010] NSWCCA 111. If the applicant is convicted on both counts, it will be a difficult sentencing exercise, applying the principles in Pearce ; but this does not make the inclusion of both counts an abuse of process.
30Accordingly, even if the primary judge were in error in saying that the matters he referred to in par [55] of his judgment could not be taken into account in relation to the criminality of an offence within Count 1, I am not satisfied that a case is made out that there is an abuse of process in this case. Certainly, in my opinion the laying of both counts could not be said to be vexatious or for some improper or ulterior purpose; and for the reasons I have given, I am not satisfied that it is oppressive.
31It is for these reasons that I propose that the application for leave to appeal under s 5F be refused.
32ADAMS J: I agree, first of all, both with the order proposed by the learned presiding judge and I agree generally with his Honour's reasons. I have also had the benefit of being informed in draft of what Justice Hall proposes to say and I agree with what his Honour says. I wish to add just some brief comments of my own.
33Firstly, in relation to the issue of criminality, whatever might be the theoretical position as to the particular elements of the separate counts, on the facts here all the criminality allegedly involved in count two could be dealt with in a sentence for count one were the applicant to be convicted on that count. However the obverse is not correct, namely the offence of supply does not have as an element of criminality that the drugs were imported. Accordingly the criminality involved in each count is not entirely coterminous.
34I am unpersuaded that, as a practical matter, it is inevitable that a conviction upon one count will involve conviction of the other and vice versa. This is a difficult obstacle for the applicant to overcome without a detailed analysis of the Crown case. Such an analysis cannot practically occur in the context of this application and there is nothing in what I have seen that (at least) disposes entirely of the compelling argument of the Crown that there is a realistic possibility of different verdicts because of the different elements of each offence. The type of drug allegedly involved in each count differs significantly so that it remains distinctly possible (from the present vantage point) that the applicant might be acquitted of the importation charge and be convicted of the supply charge.
35I join in the order proposed by the presiding judge.
36HALL J: I also agree with his Honour Justice Hodgson and, in particular, the order his Honour has proposed. I record the additional following observations.
37I am prepared to proceed upon the basis that the outcome of the present application is not to be determined by reference to the fact that there is a lack of commonality between the elements of an offence under s 307.11 (1) of the Criminal Code (Cth) and s.25 (2) of the Drug Misuse and Trafficking Act 1985.
38The central issue is whether the criminality of the offence charged in Count 1 encompasses the criminality of the offence charged in Count 2. In that respect I refer to observations made in the decisions of Thorne v Regina [2009] NSWCCA 294 at [27]; Nahlous v Regina [2010] NSWCCA 58 at [13] to [18] and Regina v Jones; Regina v Hili [2010] NSWCCA 108 at [17] to [18].
39The contention for the applicant, in summary, is that there is no additional criminality involved in respect of the charge in Count 2, that is not necessarily encompassed in the offence charged under s 307.11 (1) of the Criminal Code.
40It has long been accepted that the remedy of a permanent stay for an abuse of process, whereby a court will intervene with prevent a particular prosecution going ahead on one or more charges elected by the prosecutor, is a remedy of an exceptional nature. The relevant case law to that effect has recently been reviewed by Johnson J in Regina v Milne (No 1) (unreported, 19 August 2010).
41To prevent a prosecution from proceeding, an accused must demonstrate that the prosecution of both charges together is oppressive. If, having regard to the criminality encompassed by Count 1, no remnant of alleged criminality under Count 2 could be identified at the present time, that is to say, in advance of the trial, then an accused may be entitled to a stay: Milne (No 1) (supra) at [173]. But, as there observed, this is a demanding task for an accused person.
42Central to the present application are the provisions of s 307.11(1) of the Criminal Code. There is a capacity for those provisions to extend to a wide range of circumstances. However, the limitations on those provisions are also established by the elements of the offence, including in particular, the physical elements of such an offence.
43However in this application, and upon consideration, I do not consider that error has been demonstrated in the observations and the conclusion of James J as recorded in paragraphs [55] and [90] of his Honour's judgment.
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Decision last updated: 15 August 2011