Consideration
34The elements of the offence under s 25(2) of the DMT Act, applicable to this case, were that the appellant attempted to obtain possession of what he believed to be a prohibited drug, for the purposes of supply in an amount not less than the large commercial quantity applicable to that drug. To establish the count, it was necessary for the prosecution to prove that the appellant attempted to take possession of the drug for the purposes of supply, knowing or believing that the substance in the 45 boxes was a prohibited drug of not less than a large commercial quantity.
35By contrast, the elements of the offence under s 24A of the DMT Act, as applicable to this case, were that the appellant attempted to possess a precursor, intending it to be used by another person in the manufacture of a prohibited drug. As we have observed, it was not contended by the Crown that the appellant intended to use the precursor for the manufacture of such a drug. The identity of that person (or those people) and where and when and how they were to be given access to the precursor was left open by the Crown.
36Thus, to establish the offence under s 24A of the DMT Act, the prosecution was required to prove that the appellant attempted to possess a substance he knew or believed to be a precursor with the intention of it being used by another person to manufacture a prohibited drug.
37The appellant accepted, correctly, that not all the elements of the possession count were subsumed in the supply count even in the circumstances of the present case. This was correct at least for the reason that any on-supply of the substance possessed (or attempted to be possessed) that may be comprehended under s 24A of the DMT Act had to be with the intention that it be used for the manufacture or production of a prohibited drug as distinct, for example, for the purposes of on-selling the precursors.
38Further, for the purpose of the supply count, it was unnecessary to prove that the drug in question was a precursor or that the appellant was aware or believed it was a precursor. It is sufficient if he knew or believed it was a prohibited drug.
39However, the appellant was not correct in submitting that all the elements of the supply count were subsumed in the possession count. First, for the possession count it was not necessary to prove the substance in question was a commercial quantity. Secondly, at least theoretically, the appellant could have been aware that the substance was a precursor but not a prohibited drug, perhaps because he was told it was not and believed that to be the case. It is true that this possibility would be highly unlikely where the drug was within both categories but nevertheless it does illustrate the different elements of the counts and, most critically, the different mental elements.
40In these circumstances a conviction or acquittal on one or the other of the counts would not give rise to a plea of autrefois convict or autrefois acquit. As was pointed out by the plurality in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [20], consideration of whether a conviction or acquittal would give rise to a plea in bar on another offence invites attention to what must be proved to establish the commission of each offence. That is, it invites attention to identifying those elements as distinct from what evidence might be called and what the witnesses would say (see also Gummow J at [63]).
41In R v Langdon and Langdon [2004] VSCA 205; (2004) 11 VR 18 the Victorian Court of Appeal considered the position in circumstances somewhat similar to this case. Relevantly, the appellants were convicted of trafficking a drug of dependence (amphetamine) and of being in possession of a drug of dependence (amphetamine). They were convicted on each count and appealed, one basis being that the possession charge was entirely subsumed in the trafficking charge. The Court of Appeal, following Pearce v The Queen supra, held that a plea in bar was not available (Gillard AJA at [46]-[50], Batt and Eames JJA agreeing).
42However, we accept that does not mean that the Court would not have the power to stay the charges if it were necessary to prevent an abuse of process (Pearce v The Queen supra at [29]). In Pearce v The Queen the appellant was charged with maliciously inflicting grievous bodily harm and breaking and entering a dwelling house and inflicting grievous bodily harm. The Court held that prosecuting both those charges did not constitute an abuse of process. The plurality stated at [31] that, because the offences were different in important respects, the laying of both charges could not be said to be vexatious or oppressive. They stated that to hold otherwise would be to preclude the laying of charges that reflected the whole criminality of the accused and would require him or her to be sentenced only for the offence charged, excluding consideration of any part of the conduct that could have been charged separately.
43These remarks are apposite to the present case. We have indicated above the difference in the offences. Further, as was pointed out by the Crown in its submissions, there may have been a defence available to the supply count which was not available to the possession count under s 24A of the DMT Act. The fact that such a defence ultimately was not raised does not make the bringing of the two counts vexatious and oppressive.
44A similar conclusion was reached by the Victorian Court of Appeal in R v Langdon and Langdon supra at [57]-[60].
45The same approach was adopted by this Court in Standen v Director of Public Prosecutions (Cth) supra. In that case the appellant was indicted on three counts. The first count charged a conspiracy to import a substance intending to use any of it in the manufacture of a controlled drug and the second to knowingly taking part in the supply of a prohibited drug. An application that the second count be dismissed as an abuse of process was dismissed by the trial judge. His conclusion was upheld on appeal. Hodgson JA, who delivered the principal judgment of the Court, considered (at [23]) that there was a realistic possibility that the applicant knew the substance was a prohibited drug but not that it was a border controlled precursor. He also indicated that he was not satisfied that the whole of the relevant criminality would be captured by the first Count. In these circumstances he concluded that the bringing of both counts was not vexatious or oppressive.
46However, even if it is accepted that a plea in bar would not be available on the conviction or acquittal on one or other of the counts in the indictment and the inclusion of both counts on the indictment was not vexatious or oppressive, there remains the question whether, in the particular factual circumstances of the present case, the conviction and sentence on both counts exposed the appellant to double punishment, such that the conviction on one or the other of the counts should be quashed to avoid a miscarriage of justice.
47In Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502, the question arose whether the respondent could be convicted of a charge under s 17D of the State Pollution Control Commission Act 1970 (NSW) having already been convicted of an offence under s 16 of the Clean Waters Act 1970 (NSW). The particulars of the offence relating to each charge were identical and the offences in substance were the same. The Court answered the question in the negative. Gleeson CJ, with whom Carruthers and Smart JJ agreed, dealt with the matter in the following terms at 510:
"There are two possible ways of looking at the matter, both of which lead to the same conclusion. One way is to say that, in the circumstances of the present case, the offence against s 16 of the Clean Waters Act is in substance the same as the offence against s 17D of the State Pollution Control Commission Act. Counsel for the Environment Protection Authority sought to answer this by the following argument. He observed that, to take the present case as an example, the breach by Australian Iron & Steel of s 17D could properly be regarded as more serious than the breach of s 16 because, although exactly the same acts or omissions gave rise to each offence, the former involved an abuse of a licence and, in a sense, of a breach of trust. I find the moral distinction somewhat elusive, but, even if it is valid, it does not assist the Environment Protection Authority. If the analysis be correct, it simply shows that, in a case such as the present, a contravention of s 17D is an aggravated form of a contravention of s 16. As R v Dodd illustrates, that falls squarely within the established scope of the rule against double jeopardy.
It was also submitted on behalf of the Environment Protection Authority that, since there are two different statutes and planning provisions involved, the Court has no choice but to obey the will of Parliament and give effect to both of them. The short answer to that submission is that the rule against double jeopardy, in its ordinary application, applies in relation to two or more statutory offences. Once again, R v Dodd was precisely such a case."
48In R v Sessions [1998] 2 VR 304, the accused was convicted of one count of rape and one count of recklessly causing serious injury. The offence arose from an incident when the accused was changing the eight month old victim's nappy. He became annoyed with her crying and pushed his index finger into her vagina causing part of the intestine to be extracted through the vaginal opening. The prosecution had charged both offences to avoid the possibility that any sentence imposed could infringe the principle laid down in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383. The trial judge sentenced on the basis that the rape was constituted by the insertion of the accused's finger into the vagina to the slightest extent and the offence of recklessly causing serious injury was constituted by the continued forceful penetration. The appellant sought leave to appeal against his conviction for recklessly causing serious injury and against his sentence for rape on the ground that, by being charged with two offences for the same act, he was exposed to double jeopardy in relation to conviction and punishment.
49The appeal was allowed. The Court held that the appellant should have been sentenced for rape on the basis that his sexual penetration of the child caused the damage which in fact occurred, but that the conviction for the lesser count should be quashed. Hayne JA (as his Honour then was) said this was for three reasons. First, if the basic principle is that a single act or omission should not give rise to multiple punishment, conviction should not be recorded on both counts. He emphasised that conviction itself was a form of punishment (referring to s 7 of the Sentencing Act 1991 (Vic), the NSW equivalent is s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW)). Second, he emphasised that the serious injury to the victim could be taken into account in the sentence for rape and that, in the circumstances, the charging of the separate offence resulted in an illusory and un-useful distinction. Third, his Honour pointed out that the charging of separate offences was not required as the same physical acts were relied upon and the evidence on each count would have been identical if the plaintiff had pleaded not guilty to either or both of the offences. In these circumstance, his Honour held the accused was punished twice for the one act and the conviction on the second count should be quashed.
50R v Sessions supra was a case, as in Environment Protection Authority v Australian Iron & Steel Pty Ltd supra, where the whole of the criminality was encompassed in one charge.
51Although in Pearce v The Queen supra the Court concluded that a plea in bar could not arise and that the presentation of both charges was not vexatious or oppressive, the need to ensure that the offender was not doubly punished for the same act was emphasised. The Court pointed out at [40]-[49] that the problem would not necessarily be avoided by making the sentences concurrent.
52In R v Langdon and Langdon supra Gillard AJ said the question of whether there was double punishment must be approached as a matter of common sense. He concluded at [97] that, in the circumstances of that case, the act of possession was common to both the trafficking and the possession counts and there was double punishment. He stated at [117] that as there was no remnant of criminal conduct in the possession count, which had not been taken into account in the trafficking count, the only course was to quash the conviction.
53In Nahlous v The Queen supra, it was held that it was an abuse of process to charge a person with a principal offence and also dealing with the proceeds of crime flowing from that offence, as the receipt of money was an element of the original offence. The Court made the following remarks at [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 The Queen [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 621[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."
54Nahlous v The Queen supra may be contrasted with the other cases to which we have referred, in that it concluded that the laying of the charge of dealing with the proceeds of crime was vexatious and oppressive, as distinct from merely quashing the conviction to avoid double punishment. This was no doubt due to the fact that the principal offence looked at in isolation carried a far lesser sentence than the offence of dealing with the proceeds of crime (see at [20]).
55It is not necessary to determine whether the approach in Nahlous v The Queen supra is consistent with the other authorities to which we have referred. What is clear is that, in each of the cases, the particular conviction was quashed because the whole of the criminality arising out of the charged acts was encompassed in the other offence (see Hinchcliffe v R [2010] NSWCCA 306 at [25]-[28]).
56In the present case, as in Standen v Director of Public Prosecutions (Cth) supra, we do not think that the whole of the criminality for each offence is captured in the other. Whilst having regard to the evidence and the manner in which the case was conducted both offences may have involved an attempt to supply a prohibited drug, the s 24A offence does not capture the criminality involved in the supply of a large commercial quantity, for which the maximum penalty is life imprisonment, reflecting the seriousness with which Parliament regards that offence. Although there is more force in the proposition that the criminality involved in the offence under s 24A of the DMT Act is wholly captured by the supply offence under s 25(2), this ignores the fact that a separate element of the former offence (that the possession of the precursor was intended by the accused to be used in the manufacture or production by another person of a prohibited drug) is an element of criminality not encompassed in the s 25(2) offence.
57In these circumstances it is not appropriate to quash either conviction. It will of course be necessary in dealing with the appeal against the severity of the sentence to ensure that the appellant is not doubly punished for common elements of the offences.
58In the result the appeal against conviction should be dismissed.