Standen v Commonwealth Director of Public Prosecutions

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:

1. 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.
2. 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.
3. 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: