Director of Public Prosecutions (Cth) v Knopp (a pseudonym)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0165

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
LUIS KNOPP (A PSEUDONYM)	First Respondent
AND

JAMES LEDESMA (A PSEUDONYM)

Second Respondent

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JUDGES:	NIALL JA, KIDD and TINNEY AJJA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2023
DATE OF JUDGMENT:	12 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 315
JUDGMENT APPEALED FROM:	CDPP v [Knopp & Ors] (County Court of Victoria, Judge Todd, 14 September 2023)

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CRIMINAL LAW — Interlocutory appeal — Commonwealth indictment containing a charge of conspiracy to import a commercial quantity of a border controlled drug contrary to ss 11.5 and 307.1(1) of the Criminal Code Act 1995 (Cth) — Trial judge determined that the interests of justice required the dismissal of the conspiracy charge — Conspiracy charge dismissed under s 11.5(6) of the Criminal CodeAct 1995 (Cth) — Whether trial judge erred in dismissing the conspiracy charge — Whether trial judge misapprehended the nature and scope of the prosecution case on the conspiracy charge — Whether ‘sufficient and effective’ substantive charges available — Whether sentencing judge would be left ‘at sea’ if required to sentence on the conspiracy charge — Factors relevant to the exercise of the power to dismiss under s 11.5(6) — Relevance of the prosecutorial discretion — Whether decision amenable to interlocutory appeal — Consideration of the standard of appellate review — Error established — Leave to appeal granted — Appeal allowed — Order dismissing the conspiracy charge set aside.

Criminal Code Act 1995 (Cth) s 11.5(6).

R v Hoar (1981) 148 CLR 32; Elomar v The Queen (2014) 316 ALR 206; [2014] NSWCCA 303; R v Shepherd (1988) 94 FLR 55; Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67; GLJ v The Trustees of the Roman Catholic Church of Lismore [2023] HCA 32.

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Counsel
Applicant:	Mr OP Holdenson KC with Mr S Ginsbourg and Mr A Sprague
Respondent (Knopp):	Mr P Lange with Mr J Connolly
Respondent (Ledesma):	Mr R Richter KC with Mr CA Hooper

Solicitors
Applicant:	Mr S Bruckard, Solicitor for Public Prosecutions (Cth)
Respondent (Knopp):	Mohammed Chahine, One Group Legal
Respondent (Ledesma):	Garde Wilson Lawyers

TABLE OF CONTENTS

NIALL JA, KIDD and TINNEY AJJA:

PART A:. INTRODUCTION
PART B:. THE FACTS
PART C:. SECTION 11.5(6) OF THE CRIMINAL CODE
(1).... Statutory framework
(2).... Relevant legal principles
(a)          The ‘interests of justice’
(b)          Dismissal is ‘required’
(c)          The prosecutorial discretion
(d)          ‘Sufficient and effective’

PART D:. THE THRESHOLD ‘INTERLOCUTORY DECISION’ QUESTION
PART E:. THE INTERLOCUTORY APPEAL
(1).... Overview of the decision of the trial judge
(2).... Summary of contentions on the interlocutory appeal
(a) The applicant’s contentions
(b) The respondents’ contentions

PART F:.. ANALYSIS
(1).... The nature of the conspiracy framed by the prosecution
(2).... The trial judge’s approach to the question of the availability of ‘sufficient and effective’ substantive charges
(3).... The trial judge’s approach to the question of adverse consequences as to sentencing
(4).... The trial judge’s approach to the question of prosecutorial discretion
PART G:. THE STANDARD OF REVIEW
PART H:. CONCLUSION
PART I:.. FINAL OBSERVATION
PART J:.. ORDERS

NIALL JA
KIDD AJA
TINNEY AJA:

PART A:INTRODUCTION

The respondents, Luis Knopp (‘first respondent’) and James Ledesma (‘second respondent’),[1] are charged jointly on indictment with conspiracy to import a commercial quantity of a border controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth) (‘Criminal Code’).[2] The drug is particularised as methamphetamine. The conspiracy charge, which is charge 1 on the joint indictment,[3] is framed in the following terms:
The Director of Public Prosecutions for the Commonwealth of Australia, who prosecutes in this behalf on behalf of His Majesty the King, charges that between the 13th day of June 2020 and the 12th day of November 2020 at Ravenhall and elsewhere, [KNOPP] and [LEDESMA], conspired with each other and unknown others to import a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity being a commercial quantity.
[1]As this is an interlocutory appeal, it is in the interests of justice that pseudonyms be used so as to avoid any potential prejudice to the trials.
[2]A third accused is charged with aiding, abetting, counselling or procuring the attempted importation of a commercial quantity of a border controlled drug contrary to ss 11.1(1) and 307.1(1) of the Criminal Code. This is charge 2 on the joint indictment. The importation the subject of charge 2 is the methamphetamine that was concealed within the AMC consignment (the details of which are referred to below). Because this third accused is not a co-conspirator for the purposes of charge 1, she did not join in the application to dismiss the charge of conspiracy under s 11.5(6) of the Criminal Code.
[3]Knopp is charged with three additional offences, which also appear on the joint indictment. These offences are not relevant to the present application (nor the application before the trial judge), but we note them for completeness. They are dealing with money or property worth $10,000 or more where there is a risk that it will become an instrument of crime, contrary to s 400.6(2) of the Criminal Code (charge 3); and two charges of possessing a controlled drug, namely, cocaine, contrary to s 308.1(1) of the Criminal Code (charges 4 and 5).
The indictment is prosecuted by the applicant, the Commonwealth Director of Public Prosecutions.
The respondents made a pre-trial application before the trial judge in the County Court to dismiss this charge of conspiracy pursuant to s 11.5(6) of the Criminal Code.
Section 11.5(6) of the Criminal Code provides:
A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.
Thus, the power to dismiss pursuant to s 11.5(6) may only be exercised ‘if [the court] thinks that’ the interests of justice ‘require’ the dismissal of the conspiracy charge.
The trial judge acceded to the application and ordered that the conspiracy charge be dismissed.
The trial judge certified, pursuant to s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’), that her ruling was of sufficient importance to the trial to justify its correctness being determined on an interlocutory appeal to this Court.
The applicant seeks leave to bring an interlocutory appeal against this decision on the single, uninformative, ground that the judge erred in dismissing a charge of conspiracy under s 11.5(6) of the Criminal Code.
For the reasons that follow, we grant leave to appeal. We allow the appeal and set aside the order of the trial judge dismissing the conspiracy charge.
PART B:THE FACTS
The prosecution has filed a detailed Summary of Prosecution Opening for Trial (‘Prosecution Opening’) spanning some 63 pages. The case is largely a circumstantial one. It is intricate, involving a multiplicity of interrelated facts.
In broad compass, the prosecution case is as follows.
The prosecution alleges that the respondents were two principal members of a Melbourne-based organised crime syndicate involved in the importation of commercial quantities of border controlled drugs. The prosecution does not identify, nor does it seek to identify, the other members of the syndicate. Instead, it refers to them as ‘unknown others’.
Central to the prosecution case is the deployment by the respondents of a particular methodology designed to conceal their identities and add a veil of legitimacy to the syndicate’s activities. This methodology has been referred to as ‘cloning’. As it is central to the way the prosecution has framed the conspiracy charge, it is necessary to describe, in some detail, what the prosecution intends to convey to the jury when it refers to ‘cloning’. The Prosecution Opening describes it as follows:
The syndicate employed a combination of falsely subscribed mobile telephones, fraudulently obtained bank accounts, prepaid debit cards and domain names to clone companies and facilitate the importation of consignments into Australia.
The syndicate conducted internet searches to identify a company responsible for importing a specific commodity and conducted enquiries with ASIC to identify the director of that company. The syndicate would then use prepaid gift cards to purchase company extracts from ASIC to obtain the directors’ names and details.
The syndicate used Crazy Domains web hosting services to register a domain name (website) closely resembling the legitimate company. During the registration process, the syndicate provided the contact name of the legitimate company director and a falsely subscribed mobile telephone number and used prepaid Visa gift cards to pay for the domain registration.
Once registered, the syndicate used that domain to create an email address within Microsoft Outlook which took the form of ‘[directorsfirstname]@[domain]’. The syndicate would use this email address in combination with a falsely subscribed mobile telephone to purport to be the cloned company and facilitate the importation of goods.
To facilitate the above, the syndicate used a silver-coloured HP Pavilion laptop (the HP laptop), which was later seized from [Knopp’s] business premises on 12 November 2020. Subsequent AFP forensic analysis of the HP laptop located samples of [Ledesma’s] fingerprints and DNA.
The syndicate also utilised fraudulent identification documents to obtain bank accounts and prepaid debit cards to pay freight forwarding fees associated with importations. On occasions, to distance themselves from the offending, syndicate members used trusted associates to undertake activities in relation to the bank accounts and loading the prepaid debit cards.[4]
[4]Summary of Prosecution Opening for Trial, [7]–[12].
In a nutshell, the prosecution asserts that the process of cloning used by the respondents culminated in the ability to impersonate legitimate companies who were involved in importation of goods into Australia to further the criminal object that lay at the heart of the alleged conspiracy.
Significantly — at least for the purposes of both the application to dismiss under s 11.5(6) and this interlocutory appeal — the evidence relied upon by the prosecution to support the inference that the respondents conspired to import commercial quantities of methamphetamine includes the (effective) commission of two importations of a commercial quantity of that drug. These would constitute offences contrary to s 307.1(1) of the Criminal Code.[5] The substance of the two offences alleged to have been committed in furtherance of the conspiracy, and which supply evidence of the agreement alleged by the prosecution, are as follows.
(a)The importation of a consignment referred to as ‘the BKK consignment’. The BKK consignment arrived in Australia from Thailand on 11 and 13 August 2020. The consignment was consigned to BKK Australia Pty Ltd and addressed to a director of that company. The consignment was intercepted by law enforcement authorities. Upon inspection, it was found to contain 690.67kg of liquid within 1,788 cans labelled as ‘coconut milk’. The liquid contained 288.44kg of pure methamphetamine.
(b)The importation of a consignment referred to as ‘the AMC consignment’. The AMC consignment arrived in Australia on 21 September 2020. It was consigned to Air Master Compressors Pty Ltd. The AMC consignment was also intercepted by law enforcement authorities. It was found to contain 199.9kg of white crystalline substance secreted within four air compressors. The substance contained 160.3kg of pure methamphetamine.
[5]The substantive charge would be in the form of attempting to import a commercial quantity of a border controlled drug given that the drugs were seized by the authorities prior to collection: see R v Tranter (2013) 116 SASR 452; [2013] SASCFC 61; Ribbon v The Queen (2019) 134 SASR 328; [2019] SASCFC 61; Zhao v DPP (Cth) [2021] VSCA 101. For ease of comprehension, we will refer to these BKK and AMC consignments as importations.
The evidence relied upon in proof that the respondents were responsible for the BKK and AMC consignments includes the following:
(a)audio-recordings of conversations between persons alleged to be the respondents and a courier company;
(b)the results of a forensic examination of a HP laptop, which, it is alleged, was used by the respondents in connection with the cloning of companies and to track the BKK and AMC consignments; and
(c)evidence of activities at the first respondent’s business premises in Ravenhall.
The prosecution relies upon the BKK and AMC importations as (separate) parcels of overt acts in proof of the conspiracy. Although there was a gap of approximately 40 days between the importation of the BKK consignment and the AMC consignment, the prosecution contends that the imports are properly viewed as the manifestation or product of an overarching agreement between the respondents (and unknown others) to import commercial quantities of border controlled drugs.
The prosecution also alleges that the respondents’ activities in furtherance of the conspiracy — and the conspiracy itself — extended beyond the BKK and AMC importations.
The prosecution points to several strands of evidence that support the inference that the agreement between the respondents (and unknown others) was broader than an agreement to import the BKK and/or the AMC consignments.
Police executed a number of search warrants on 12 November 2020. During their search of various properties that were connected to the respondents, police located dozens of mobile phones, each of which was labelled with a different service number. Eight of these phones were also labelled with the names of companies that had been searched through the ASIC portal, on various dates between 21 September 2020 and 28 October 2020. One of these eight phones was plugged in and charging at the Ravenhall premises when it was found on 12 November 2020. Police also located numerous other items that were associated with the cloning of companies, including but not limited to AMC and BKK, at premises that were connected to the respondents.
The prosecution places further reliance upon recorded conversations captured on a surveillance device on 6 October 2020. Reference is made to a conversation at 3:23 pm between the respondents and a third person, where the third person said, ‘we have had a few ripped’. The prosecution says this is a reference to multiple consignments. At 3:32 pm, there is a further conversation involving the same three people in which reference is made to the failed AMC consignment. The third person present says ‘we can use the company again’ which the prosecution says is a reference to using the cloned AMC arrangements for another operation.
PART C:SECTION 11.5(6) OF THE CRIMINAL CODE
(1)Statutory framework
Before considering the substance of the application, it is convenient to set out the relevant provisions of the Criminal Code.
Section 11.5 of the Criminal Code codifies the offence of conspiracy. It relevantly provides:
(1)A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, commits the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.
…
(2)For the person to be guilty:
(a)the person must have entered into an agreement with one or more other persons; and
(b)the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
(c)the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
…
(6)A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.
…
(8)Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given.
Section 307.1(1) of the Criminal Code makes it an offence to import a commercial quantity of a border controlled drug. Methamphetamine is such a drug. The threshold quantity for pure methamphetamine is 750 grams.[6]
(2)Relevant legal principles
[6]Criminal Code Regulations 2019 (Cth), sch 2.
We return to Section 11.5(6) of the Criminal Code, which bears repeating:
A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.
The power contained in s 11.5(6) is unique; there is no equivalent provision in any other Australian jurisdiction. The origins of the provision have been canvassed elsewhere.[7] Relevantly for present purposes, it is sufficient to observe that it is a power that appears to be grounded in a mix of legal, practical, and policy considerations. It was, it seems, designed to encourage restraint in the preferment of conspiracy charges. The Explanatory Memorandum to the Criminal Code Bill 1994 (Cth) made the following remarks about s 11.5(6):
Additionally proposed subsection 11.5(6) allows a court to dismiss the conspiracy count if it considers that the interests of justice require it to do so. The most likely use of this provision will arise when the substantive offence could have been used, a criticism repeatedly voiced by the courts (see, for example, Hoar (1981) 148 CLR 32).[8]
[7]DPP (Cth) v Brady (2016) 346 FLR 1; [2016] VSC 334; R v Dowding [2000] VSC 439.
[8]Explanatory Memorandum, Criminal Code Bill 1994 (Cth), 39–40.
The reference to R v Hoar (‘Hoar’)[9] is significant. The relevant issue in Hoar can be briefly stated. Hoar was charged with, and convicted of, conspiring with others to fish for barramundi during a prohibited period and at a prohibited place. Despite that conviction, there were pending charges against Hoar for substantive offences relating to the same transactions as those involved in the conspiracy offence. The substantive offences were alleged to be constituted by the acts which were overt acts of the conspiracy. In addition to founding Hoar’s liability for the conspiracy offence, the overt acts were also taken into account by the Federal Court in determining sentence. The High Court was critical of the prosecution for creating a situation where, despite having been sentenced on conspiracy charge, the commencement of proceedings for substantive offences remained a possibility. The plurality observed:
[The] Crown has adopted a course of proceeding which is calculated to cause the maximum amount of prejudice to the defendants and the greatest difficulty to the courts in determining what is a proper penalty. If the Crown’s belief was that if had effective charges for the substantive offence then it should have proceeded with those charges and sought on conviction an order for forfeiture which the court would have been authorized to make. If there had been some real basis for doubting that the offence had been committed the Crown may perhaps have been justified in alleging an attempt or a conspiracy. Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed. As Lord Pearson observed in Verrier [v DPP [1967] 2 AC 195] (at 223–4), the addition of a charge of conspiracy in the same indictment ‘will tend to prolong and complicate the trial’.[10]
[9](1981) 148 CLR 32.
[10]R v Hoar (1981) 148 CLR 32, 38 (Gibbs CJ, Mason, Aickin and Brennan JJ); [1981] HCA 67.

The plurality also made reference to the unfairness of an offender being exposed to a penalty for a conspiracy charge which exceeded the penalty for the substantive offence.[11]
[11]R v Hoar (1981) 148 CLR 32, 39 (Gibbs CJ, Mason, Aickin and Brennan JJ); [1981] HCA 67.
Thus, it can be seen that s 11.5(6) of the Criminal Code is fundamentally concerned to ensure that charges for conspiracy are not misused by the prosecution, whether that be by occasioning avoidable prejudice to an accused or presenting a case that results in a protracted trial of unnecessary complexity.
The decision in Hoar also reflects that the common law has approached the offence of conspiracy with ‘a degree of circumspection’.[12] This is because, inter alia, the gravamen of the offence of conspiracy is the accused’s state of mind, not their conduct.
[12]R v Theophanous (2003) 141 A Crim R 216, 249 [77] (Winneke ACJ, Vincent and Eames JJA); [2003] VSCA 78. See also R v Caldwell (2009) 22 VR 93, 100 [64] (Weinberg JA); [2009] VSCA 41.
Despite these reservations, four features of s 11.5(6) require emphasis.
(a)The ‘interests of justice’
First, it may readily be accepted that the words ‘interests of justice’ are open-textured; they are ‘words of the widest possible reference’ for which ‘there could scarcely be a wider judicial remit.’[13] But the concept is not at large. The nature and content of the ‘interests of justice’ is to be discerned from, and informed by, the purpose and context of the provision itself. In Landsman v The Queen,[14] the NSWCCA observed that, ‘[a]lthough the “interests of justice” will include the interests of the parties, the concept will invariably be wider than that and include larger questions of legal principle, the public interest and policy considerations’.[15]
(b)Dismissal is ‘required’
[13]Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601, 613 (Kirby P).
[14]Landsman v The Queen (2014) 88 NSWLR 534; [2014] NSWCCA 328.
[15]Landsman v The Queen (2014) 88 NSWLR 534, 550 [69] (Beazley P, citing BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61); [2014] NSWCCA 328.
Second, the power to dismiss a charge of conspiracy can only be exercised where the interests of justice ‘require’ it. In context, we think that the word ‘require’ was intended to connote a course that is necessary or imperative, rather than a course that is merely preferable or permissive. If the criterion were one of preference, a court exercising the power under s 11.5(6) of the Criminal Code could simply substitute its view for the view of the prosecution agency.
(c)The prosecutorial discretion
Third, the choice of charges to bring against an alleged offender — including the preferment of conspiracy charges — is essentially an exercise of prosecutorial discretion, and, as a general principle, the exercise of that discretion is unreviewable.[16]
[16]Elomar v The Queen (2014) 316 ALR 206, 300 [493]; [2014] NSWCCA 303.
The continued existence of the offence of conspiracy under s 11.5(1) of the Criminal Code also makes it plain that the legislature regarded charges for conspiracy as having a place in the contemporary landscape of federal prosecutions.
The legislature has also made provision for certain safeguards, in addition to the Court’s power to dismiss. There is the precondition in s 11.5(8), namely, that proceedings for conspiracy can only be commenced with the consent of the Director (i.e., the most senior prosecutor).
More generally, provided the prosecution can furnish adequate particulars,[17] the prosecution is entitled to choose, or frame, the nature and scope of the agreement it will allege at trial.[18]
[17]An accused is entitled to precise particulars of: (a) the persons with whom they are alleged to have conspired; (b) the scope of the conspiracy alleged; and (c) the overt act or acts relied upon by the prosecution. See R v Mok (1987) 27 A Crim R 438 (Hunt J); see also, R v Caldwell (2009) 22 VR 93, 99 [59]–[61] (Weinberg JA); [2009] VSCA 41.
[18]R v Caldwell (2009) 22 VR 93, 99 [60], 101 [71]–[72], [80] (Weinberg JA); [2009] VSCA 41. See also R v Mok (1987) 27 A Crim R 438 (Hunt J). Self-evidently, that choice is to be made by reference to the available evidence. It is the specific agreement, as alleged by the prosecution, that must be proved. See, eg, R v Maria [1957] St R Qd 512; R v Caldwell (2009) 22 VR 93; [2009] VSCA 411; Mylonasv The Queen [1987] WAR 261.
In the light of these matters, it could not have been the legislature’s intention to permit a court to enter the arena of prosecutorial decision-making without very good reason to do so.[19]
[19]Elomar v The Queen (2014) 316 ALR 206, 300 [492]–[493]; [2014] NSWCCA 303.
When the word ‘required’ is tethered to the concept of the ‘interests of justice’, it is plain that the former is calculated to prevent the provision from operating as a form of de facto review of discretionary prosecutorial decisions upon which reasonable minds may differ.
It is for these reasons that:
It is only in rare cases (if at all) that courts will interfere with that discretion. In part, at least, that is a feature of the doctrine of separation of powers. Section 11.5(6) of the Code is a statutory incursion into the general principle. However, in the consideration of the exercise of the discretion conferred by s 11.5(6), courts should not lose sight of the principle or the reason for its existence. Section 11.5(6) permits a court to interfere in the exercise of the prosecutorial discretion only where it considers that the ‘interests of justice require it’ to do so.[20]
[20]Elomar v The Queen (2014) 316 ALR 206, 300 [492]; [2014] NSWCCA 30, and the authorities cited therein, including Maxwell v The Queen (1996) 184 CLR 501, 512, 534; [1996] HCA 46.
The importance of these principles and policy reasons (which demand judicial restraint before disturbing the prosecutorial discretion to select charges) are relevant both to the construction of s 11.5(6), as well as to the evaluative assessment required by s 11.5(6) in any given case.
As a matter of construction, these principles and policy reasons reinforce that the criterion that the interests of justice must ‘require’ dismissal before the power is exercised represents a rigorous threshold.
In any given case, these same principles and policy reasons must also be considered by the Court as a factor relevant to the ‘interests of justice’ and, ultimately, whether the interests of justice ‘require’ it to dismiss the charge.
The fact that the prosecuting agency has preferred a conspiracy charge cannot, of course, be determinative of the exercise of the power under s 11.5(6). The power presupposes that the decision to select a conspiracy charge has been made and is directed to an assessment of the effects of that decision. The fact that the Commonwealth Director has both determined to prosecute and given express consent to a conspiracy charge under s 11.5(8) cannot be relied upon to effectively render the power nugatory.
Nevertheless, we agree with Johnson J’s observation in R v Dirani (No 22),[21] that these factors at least can be ‘significant’ factors to be taken into account in considering the exercise of s 11.5(6).[22] As the Court said in Elomar v R (‘Elomar’), ‘in the consideration of the exercise of the discretion conferred by s 11.5(6), courts should not lose sight of the principle or the reason for its existence’.[23]
[21] R v Dirani (No 22) [2018] NSWSC 1155.
[22] R v Dirani (No 22) [2018] NSWSC 1155, [50].
[23]Elomar v The Queen (2014) 316 ALR 206, 300 [493]; [2014] NSWCCA 30 (emphasis added).
The weight to be attached to the importance of the prosecutorial discretion made in the evaluative assessment under s 11.5(6) may vary depending upon the case. It seems to us that where there are ostensibly sound reasons for the preferment of a conspiracy charge, there will be a correspondingly higher need to identify cogent countervailing factors before a court could be satisfied that the interests of justice ‘require’ dismissal.
(d)‘Sufficient and effective’
Fourth, the High Court’s decision in Hoar is not authority for the proposition that substantive charges must be laid in preference to a charge of conspiracy.[24]
[24]See, eg, R v Shepherd (1988) 94 FLR 55; R v El-Kotob (2002) 4 VR 546, 556–7 [42] (Vincent JA); [2002] VSCA 109; Elomar v The Queen (2014) 316 ALR 206, 300 [494]; [2014] NSWCCA 30. And see R v Weaver (1931) 45 CLR 321, 333–4 (Gavan Duffy CJ, Starke and McTiernan JJ).
The question — which is unlikely, of itself, to be determinative of an application under s 11.5(6) of the Criminal Code — is whether a substantive charge, or substantive charges, would be ‘sufficient and effective’.[25] The substantive charges must be sufficient to encompass the accused’s criminality, and effective in doing so.
[25]R v Hoar (1981) 148 CLR 32, 38 (Gibbs CJ, Mason, Aickin and Brennan JJ); [1981] HCA 67.
Whether a substantive charge would be ‘sufficient and effective’ necessarily depends upon the circumstances of the case at hand. If completed criminal acts could be the subject of substantive charges, a convenient question to ask is whether the conspiracy alleged by the prosecution would be ‘subsumed’ by the substantive charges.[26] Or, by reference to the converse, whether the substantive charges would ‘fail to reflect and portray the real nature of what was going on’.[27] That requires an analysis of the acts, facts and circumstances relied upon by the prosecution to establish the conspiracy alleged, as well as an examination of the accused’s alleged state of mind, to determine whether the substantive charges would capture the true level of criminality involved in the offending.
[26] R v El-Kotob (2002) 4 VR 546, 557 [43] (Vincent JA); [2002] VSCA 109.
[27]R (Commonwealth) v Baladjam (No 4) (2008) 270 ALR 106, 124 [57]; [2008] NSWSC 726.
Hoar is a case where substantive charges would have been sufficient and effective, whilst R v Shepherd (‘Shepherd’)[28] and Elomar[29] are cases where substantive charges, although available, would not have been sufficient and effective.
[28]R v Shepherd (1988) 94 FLR 55.
[29]Elomar v The Queen (2014) 316 ALR 206; [2014] NSWCCA 30.
Shepherd makes it clear that, even in cases where sufficient and effective substantive charges are available, a conspiracy charge would be justified where there is a ‘ring of criminality’[30] or an ‘organisational framework for general activity’.[31] As Lee J observed in that case:
There are cases decided in the High Court in which criticism has been made of the use of the charge of conspiracy by the Crown in certain circumstances. Without in any way suggesting that those cases are not binding on this Court it is appropriate in the present case to make the observation that in circumstances such as those shown in this case it is entirely proper — and indeed in the interests of the community — that charges of conspiracy be preferred.
Where, as here, the evidence available to the prosecuting authority reveals that there is a group of persons under the control of one or some who direct the activities of the other for the express purpose of committing breaches of the narcotic laws in this country it is in the public interest that that organisation be exposed in the court for what it is and a charge of conspiracy is the most effective way of achieving that.
It is not often mentioned but it is never to be forgotten that men acting in combination to achieve unlawful ends present a far greater evil and danger to the community than do the acts of individuals acting alone to achieve their nefarious ends. The evidence in the present case discloses a drug ring carrying out forbidden drug importation on a huge scale.[32]
[30]R v Shepherd (1988) 94 FLR 55, 62 (Street CJ).
[31]R v Shepherd (1988) 94 FLR 55, 62 (Street CJ).
[32]R v Shepherd (1988) 94 FLR 55, 64 (Lee J).
The availability of sufficient and effective substantive charges appears to be the battleground for many applications under s 11.5(6) of the Criminal Code (and its predecessor).[33] But the availability of sufficient and effective substantive charges in a given case says nothing about whether a conspiracy charge preferred by the prosecution is attended by the various legal and practical problems discussed in Hoar. Indeed, without more, the availability of sufficient and effective substantive charges in a given case may only serve to focus one’s attention on whether a conspiracy charge is one to which s 11.5(6) of the Criminal Code could apply. In other words, the availability of sufficient and effective substantive charges may be the beginning of the inquiry, but it is not the inquiry itself.
[33]See, eg, R (Commonwealth) v Baladjam (No 4) (2008) 270 ALR 106; Elomar v The Queen (2014) 316 ALR 206; [2014] NSWCCA 30; R v Curtis (No 2) [2016] NSWSC 795; DPP (Cth) v Brady (2016) 346 FLR 1; [2016] VSC 334; R v Dowding [2000] VSC 439; R v Won [2012] SADC 117.
Attributing too much weight to the availability of sufficient and effective substantive charges risks masking the true reason for the existence of the power of dismissal under s 11.5(6) of the Criminal Code. The question is whether the dismissal of a conspiracy charge is required in the interests of justice. Elevating the availability of sufficient and effective substantive charges to a position of primacy risks constraining the scope of the provision and obscuring the much more important legal and practical questions at play, including the question of prejudice. Further, the assessment of whether alternative charges adequately address the relevant criminality involves its own evaluative task for which the Director bears the ultimate responsibility.
Keeping the above four features in mind, a survey of the authorities suggest that the following factors may be relevant to the exercise of a court’s decision to dismiss a conspiracy charge when the interests of justice require it under s 11.5(6) of the Criminal Code. Those considerations, which should in no way be taken to be exhaustive, include the following:[34]
[34]We have principally drawn them from R v Dowding [2000] VSC 439, 11–2 [20], where Teague J identified a series of considerations relevant to the exercise of the discretion under s 86(7) of the Crimes Act 1914 (Cth) (which was in identical terms to s 11.5(6) of the Criminal Code). They are a useful starting point.
(a)whether a substantive charge, or substantive charges, would be ‘sufficient and effective’;[35]
[35]R v Hoar (1981) 148 CLR 32, 38 (Gibbs CJ, Mason, Aickin and Brennan JJ); [1981] HCA 67.
(b)whether a count of conspiracy to commit an offence is joined with a count alleging the commission of the same offence;[36]
[36]R v Dowding [2000] VSC 439, 11–12 [20].
(c)whether there is an overlap between the elements of the offence and the alleged overt acts of the conspiracy;[37]
[37]R v Dowding [2000] VSC 439, 11–12 [20].
(d)whether the joinder can be seen to be an abuse of process;[38]
[38]R v Dowding [2000] VSC 439, 11–12 [20].
(e)whether a conspiracy count reflects the criminality involved more appropriately than substantive counts;
(f)whether double jeopardy is a realistic possibility;[39]
(g)whether the complexity of the trial is likely to be increased, because of evidentiary difficulties or otherwise;[40]
(h)whether adverse consequences as to sentencing might result;[41]
(i)whether the potential for injustice to the accused might arise for any other reason;[42]
(j)whether severance is a more appropriate option than dismissal;[43]
(k)whether the alternative to a conspiracy charge is any more or less complex than the conspiracy charge;[44]
(l)whether the most serious features of the accused’s conduct relate to the ‘criminal design rather than its implementation’;[45] and
(m)whether, in order to reflect the criminality involved, the indictment would need to contain numerous individual substantive charges.[46]
PART D:THE THRESHOLD ‘INTERLOCUTORY DECISION’ QUESTION
[39]R v Dowding [2000] VSC 439, 11–12 [20].
[40]R v Dowding [2000] VSC 439, 11–12 [20].
[41]R v Dowding [2000] VSC 439, 11–12 [20].
[42]R v Dowding [2000] VSC 439, 11–12 [20].
[43]R v Dowding [2000] VSC 439, 11–12 [20].
[44]Elomar v The Queen (2014) 316 ALR 206, 302–3 [504]; [2014] NSWCCA 30.
[45]R v El-Kotob (2002) 4 VR 546, 557 [43] (Vincent J); [2002] VSCA 109. See also R v Shepherd (1988) 94 FLR 55, 64 (Lee J).
[46]Elomar v The Queen (2014) 316 ALR 206, 300–2[500].
The second respondent contends that the dismissal of a conspiracy charge, pursuant to s 11.5(6) of the Criminal Code, is not an ‘interlocutory decision’ within the meaning of s 3 of the CPA.[47]
[47]There is no dispute that, in criminal proceedings involving the exercise of federal jurisdiction, the Judiciary Act 1903 (Cth) picks up and applies as surrogate federal laws the provisions of the Criminal Procedure Act 2009 that govern interlocutory appeals.
As defined in s 3 of the Act, ‘interlocutory decision’ means a decision made by a judge in a proceeding referred to in s 295(1) of the CPA, whether before or during the trial, including a decision to grant or refuse to grant a permanent stay of the proceeding.
It seems to us that the second respondent’s contention that a decision to dismiss a conspiracy charge is not a decision amenable to interlocutory appeal can be distilled as follows:
(a)It could not have been intended that the word ‘decision’, as it is used in the definition of ‘interlocutory decision’, is synonymous with any pre-trial decision. Director of Public Prosecutions v Singh[48] is an example of this Court placing limits on the types of decisions from which an interlocutory appeal can be brought.
(b)The decision to dismiss a charge is not ‘interlocutory’ in character, because it finally determines or disposes of the rights of a party[49] — here, the prosecution’s right to proceed on a conspiracy charge.
(c)In determining whether the decision to dismiss a conspiracy charge is ‘final’, a distinction should be drawn between the trial itself (that is, all charges on the indictment) and the proceedings in respect of the conspiracy charge. Whilst the prosecution could file over an indictment alleging the commission of substantive offences the subject of the conspiracy, the prosecution is permanently barred from bringing a conspiracy charge.
[48](2012) 34 VR 364; [2012] VSCA 167.
[49]The second respondent says this distinction is fundamental: see Hall v Nominal Defendant (1966) 117 CLR 423.
In our view, the second respondent’s arguments must be rejected, essentially for the following reasons advanced by the applicant.
First, the definition of ‘interlocutory decision’ is drafted in broad, flexible and non-technical terms, with the legislature avoiding the use of words such as ‘order’ and ‘judgment’.
Second, a decision to dismiss a conspiracy charge under s 11.5(6) of the Criminal Code does not involve a final determination on the merits. A dismissal does not constitute an acquittal on the charge, such that the principles of double jeopardy are engaged. A decision to dismiss can be distinguished from a decision to discharge the jury from delivering a verdict on a charge following a no case submission. This Court has held that to construe the definition of ‘interlocutory decision’ as permitting an appeal in respect of a no case ruling would offend the fundamental principle that the prosecution does not have a right of appeal from an acquittal.[50] This threshold objection of principle does not stand in the way of interpreting the definition to include a decision to dismiss.
[50]DPP v Singh (2012) 34 VR 364; [2012] VSCA 167.

Third, the exercise of the power to dismiss a conspiracy charge is generally akin to the exercise of the power to stay the trial of a charge — both a stay and a dismissal have the effect of denying the prosecution its prima facie right to have the court exercise the jurisdiction invoked upon the filing of an indictment. And, because the definition of ‘interlocutory decision’ in s 3 of the CPA expressly provides that an interlocutory appeal may be commenced in respect of a decision to grant (or refuse to grant) a permanent stay, it would be surprising if a decision to dismiss a conspiracy charge were not amenable to review.
We now turn to the merits of the application.
PART E:THE INTERLOCUTORY APPEAL
(1)Overview of the decision of the trial judge
The trial judge drew upon two factors in reaching her conclusion that the interests of justice required that the conspiracy charge be dismissed.
The trial judge concluded that ‘sufficient and effective’ substantive charges were available. She treated this factor as relevant to, but not determinative of, whether the interests of justice required dismissal.
The trial judge also concluded there would be significant adverse consequences to the sentencing process. These consequences were stated to ‘place the sentencing court in a vast and deep ocean of fact-finding after verdict’.[51]
[51]DPP (Cth) v [Knopp & Ors] (County Court of Victoria, Judge Todd, 14 September 2023) (‘Ruling’), [75].
The trial judge concluded that these potential sentencing consequences, when coupled with the availability of substantive and effective substantive charges, meant that the interests of justice required dismissal pursuant to s 11.5(6).
(2)Summary of contentions on the interlocutory appeal
(a)The applicant’s contentions
The applicant contends that it was not open to the trial judge to dismiss the conspiracy charge pursuant to s 11.5(6) of the Criminal Code.
The applicant contends that the trial judge made several errors. The errors alleged by the applicant can be separated into three categories.
In relation to the significance of the prosecutorial discretion, the applicant contends that the trial judge ‘stopped short’ of accepting that the principle of prosecutorial discretion was relevant to a consideration of the exercise of the power conferred by s 11.5(6) of the Criminal Code. And, because the trial judge did not accept the relevance of that principle, the applicant argues that the trial judge placed too much weight on the wrong considerations. This was a flawed approach, which, in the applicant’s submission, infected the trial judge’s decision to dismiss the conspiracy charge.
The applicant observes that the trial judge did not conclude, and nor did the respondents contend in the court below, that the decision to prefer a conspiracy charge in this case gave rise to unfair prejudice, risked prolonging the trial, conferred an advantage on the prosecution, or increased the complexity of the proceeding. It is therefore clear that, by primarily focusing on the availability of what the trial judge considered to be sufficient and effective substantive charges, the trial judge did not give any weight to the Commonwealth Director’s view that a conspiracy charge, in this case: (a) better exposes the organisation that underpins the alleged offending; and (b) simplifies the indictment.
As to the question of the availability of sufficient and effective substantive charges, the applicant contends that:
(a)the two substantive importation offences identified by the trial judge (one encompassing the BKK importation, and one encompassing the AMC importation); and
(b)the substantive offences that would encompass anything to do with the use of appropriated or false identities that formed the basis of the cloning methodology,
would not paint a complete and true picture of the alleged offending.
This is ‘because what was done included preparation for being ready, willing and able to do more importations.’ In other words, substantive charges identified by the trial judge would not, and could not, reflect the overall criminal conduct alleged by the prosecution. Only a conspiracy charge could truly capture the magnitude of the criminality involved. It follows, in the applicant’s submission, that the trial judge erred in holding that the substantive offences were ‘sufficient and effective’ because they ‘subsumed’ the conspiracy charge.
The applicant attributes the trial judge’s conclusion on the availability of sufficient and effective substantive charges to a misapprehension about how the prosecution intends to put its case at trial, including, in particular, the scope of the conspiracy alleged. As a result, the applicant argues that the trial judge compartmentalised the conduct or separated it out into individual criminal acts, rather than ‘stand[ing] back and see[ing] it for what it is.’ This culminated in the trial judge giving no (or, at the very least, little) weight to the nature and scope of the alleged agreement.
Further, the applicant submits that the trial judge was in error when the judge concluded that two substantive importation charges would, if proved, ‘equal and overtake the criminality expressed as the agreement to import, including the ongoing machinery of importation.’ In its submission, the trial judge’s conclusion conflicts with established principle —conspiracy is not, generally, a lesser offence than the substantive offence the object of the conspiracy. Consequently, the applicant contends that the trial judge gave undue weight to the availability of the substantive charges.
In relation to the issue of the adverse consequences as to sentencing, the applicant takes issue with the way the trial judge assessed the complexity of the task that would confront the sentencing judge (assuming, of course, that either or both of the respondents are convicted). The applicant fastens on the trial judge’s conclusion that the sentencing process on the conspiracy charge would lack ‘legitimacy, transparency, finality and certainty’. The applicant submits that, having regard to the standard of proof that applies to fact-finding on sentence, there is no risk that the sentencing process would carry with it a lack of finality and certainty.
The applicant’s principal focus was on the trial judge’s finding that the sentencing process would lack both legitimacy and transparency. Relying upon the High Court’s decisions in Savvas v The Queen (‘Savvas’)[52] and Cheungv The Queen (‘Cheung’),[53] the applicant contends that the quandaries identified by the trial judge are inherent in the sentencing exercise, especially where the foundation of the charge is an agreement.
[52](1995) 183 CLR 1; [1995] HCA 29.
[53](2001) 209 CLR 1; [2001] HCA 67.
The applicant says that Savvas stands for the proposition that a sentencing judge is entitled, when imposing sentence on a conspiracy charge, to make findings of fact relating to the commission of substantive offences committed in furtherance of the conspiracy. Indeed, the applicant submits that such findings are essential to the sentencing exercise, as they illuminate the content, duration and reality of the conspiracy. Consistent with the authorities upon which it relies, the applicant acknowledges that any finding of fact must be consistent with the jury verdict. While the verdict would be ‘inscrutable’, that is something the sentencing judge must ‘work with’, even if it means the judge ‘make[s] a finding which was never made by any member of the jury’.
Finally, the applicant argues that the trial judge disregarded the proposition, derived from Cheung, that there is no obligation on the prosecution to frame an indictment in a way that covers every possible view of the facts that might be relevant to sentence.
(b)The respondents’ contentions
The respondents submit that the trial judge’s decision to dismiss the conspiracy charge was not attended by error. They say that the trial judge considered and applied the relevant principles. The first respondent argues that the applicant is parsing the trial judge’s decision by ‘employing a fine-tooth comb to detect error’.
Each respondent made comprehensive written and oral submissions. Due to the considerable (and understandable) overlap between their submissions, it is convenient to deal with them together. We use ‘the first respondent’ (Knopp) and the ‘second respondent’ (Ledesma) to identify those submissions that were made by only one of the respondents.
The respondents submit that the trial judge did give weight to the question of the prosecutorial discretion and did take it into account. They say that the trial judge effectively held that the prosecutorial discretion permeates the entire exercise of the power of dismissal created by s 11.5(6). In their submission, the trial judge recognised that the principle of prosecutorial discretion operates as a kind of restraint.
The respondents refer to the legislative history of s 11.5(6) of the Criminal Code and contend that it was entirely appropriate, indeed necessary, for the trial judge to determine whether there are available sufficient and effective substantive charges. This was a central consideration to the exercise of the power to dismiss under s 11.5(6) of the Criminal Code.
The respondents submit that the trial judge was correct to conclude that an indictment alleging two substantive importation charges would (with or without additional substantive charges in respect of appropriated or false identities), sufficiently and effectively encompass the essence of the alleged offending. This is not a case where the proposed substantive offences would not reflect the totality of the alleged criminality. The first respondent submits that the criminality involved in the willingness to carry out additional importations of border controlled drugs ‘must pale into insignificance when compared to the actual attempts to import hundreds of kilos’.
The respondents also observe that, were the Commonwealth Director to proceed with two substantive importation charges, the maximum penalty would remain the same: life imprisonment. In the respondents’ submission, proceeding on substantive offences would provide sufficient sentencing scope, both to punish the offender and to denounce to the community the extent of the (alleged) criminality. If proved, the BKK and AMC importations would reveal a course of conduct that can be taken into account on sentence.
As to the question of the adverse consequences as to sentencing, the respondents argue that, were they convicted on the conspiracy charge, the scope of fact finding required to be undertaken during the sentencing process would effectively put the sentencing judge in the jury’s position.
The respondents submit that the High Court’s decisions in Savvas and Cheung must be viewed in context. In their submission, those cases grapple with how a sentencing judge is to approach the sentencing exercise after trial; they do not deal with s 11.5(6). The first respondent points to Kirby J’s reasons in Cheung, where his Honour suggested that the prosecution should be encouraged to frame charges in a way that obviates or reduces the need for the sentencing judge to make difficult findings of fact when passing sentence. The first respondent says that, by enacting s 11.5(6), the legislature was giving courts the power to take steps to avoid altogether the difficulties that might, or could, arise during the sentencing process. Thus, there is no inconsistency between Cheung and the trial judge’s conclusion.
The second respondent also submits that the scope of fact finding at sentence gives rise to a risk that one judge might look at things one way, and another judge might look at things another way. In his submission, this results in a lack of certainty.
The first respondent makes a separate argument directed at proof of the overt act. In his submission, there is a possibility — and not merely a theoretical or academic one — that the charge, as currently framed, could result in the jury returning a guilty verdict if they are satisfied that he formed an agreement with the second respondent after the importation of the BKK and/or AMC consignments. In other words, the jury could find that the second respondent became a party to the conspiracy, as framed by the prosecution, at a later stage.
The first respondent also submitted — at one point — that the particulars on the indictment, as presently drafted, allow for the possibility of the respondents being convicted even if the prosecution does not establish what it intends to establish; namely, that the agreement was an agreement to import consignments (plural). The first respondent says that the indictment only refers to the bare elements of the offence, such that proof of an agreement to import a single consignment (that is, to commit an offence) would be sufficient.
PART F:ANALYSIS
(1)The nature of the conspiracy framed by the prosecution
Before addressing the ruling in detail, and the arguments, it is convenient to first identify the ambit of the conspiracy charged. This is critical to a consideration of the trial judge’s findings in relation to the availability of ‘sufficient and effective’ substantive charges, as well as her findings concerning the ‘adverse consequences to sentence’.
As reproduced above, the charge on the indictment alleged that between 13 June 2020 and 12 November 2020, the respondents conspired with each other and unknown others to import a commercial quantity of methamphetamine.
The true nature and parameters of the alleged conspiracy can only be ascertained by reference to the prosecution case as set out in the Prosecution Opening. This was both appropriate and necessary,[54] and the trial judge determined the application on this basis.
[54]See s 182(2) of Criminal Procedure Act 2009, which provides that the prosecution must outline, inter alia, the manner in which the prosecution will put the case against the accused.
Whilst it is necessary to have regard to the contents of the Prosecution Opening read as a whole, the Opening relevantly provides:
It is alleged that [Knopp] and [Ledesma] were two principal members of a Melbourne-based organised crime syndicate involved in the importation of commercial quantities of border controlled drugs (BCD) from overseas. The syndicate cloned legitimate existing companies without their knowledge, and would purport to be a person from that company to facilitate importations of goods, some of which contained concealed BCD. [Knopp] and [Ledesma] are charged with a conspiracy to import BCD, relating to two consignments [reference is then made to the BKK and AMC importations].
…
The syndicate employed a combination of falsely subscribed mobile telephones, fraudulently obtained bank accounts, prepaid debit cards and domain names to clone companies and facilitate the importation of consignments into Australia.[55]
[55]Summary of Prosecution Opening for Trial, [4], [7] (emphasis added).
Before the trial judge, the trial prosecutor summarised the fundamental components of the conspiracy charge in the following terms:
[There is] a very distinctive methodology of cloning, which is applied to two importations and also to multiple other companies, which as a matter logic, each of those clones would also be separately capable of being used to import enormous further quantities.
And in this case, it’s also clear that that was contemplated by the conspiracy even as they were aware that law enforcement was seizing their consignments, they were continuing to create other clones.[56]
[56]Emphasis added.
Before us, Senior Counsel for the applicant stated:
Now to be clear, the ongoing agreement and the conduct engaged in by the accused in furtherance of that ongoing agreement extended beyond what they did in order to facilitate or implement the BKK importation and the AMC importation. I repeat, those two importations and what they did to effect them constituted only some of what they did.
Having regard to the Prosecution Opening, as elaborated upon during oral submissions before both the trial judge and this Court, four features of the conspiracy, as framed, seem to emerge.
First, on the prosecution case, the conspiracy contemplated importations or consignments (plural) of methamphetamine, through the use of ‘clones’ of legitimate companies and false identities.[57] In relation to the multi-consignment nature of this conspiracy, Senior Counsel for the applicant said before us that, the applicant, having ‘pinned its colours to the mast is bound by the way its puts its case’. He further accepted that the jury will need to be directed by the trial judge accordingly. The prosecution does not merely set out to prove a bare conspiracy to import a commercial quantity of drugs, or a conspiracy to engage in a singular importation transaction.
[57]Summary of Prosecution Opening for Trial, [4], [7], [88].
Second, on the prosecution case the conspiracy was not confined to the implementation of the BKK or AMC consignments. While the first passage from the Prosecution Opening extracted above might suggest it was confined to the BKK and AMC consignments, a reading of the Prosecution Opening as a whole — including the prosecution reliance upon the evidence of the cloning of the other eight companies — shows that the alleged conspiracy is a continuing and open-ended scheme.
Third, proof of the conspiracy evidentially depends upon proof of at least one of the BKK of AMC importations.
As we understand it, the prosecution draws upon a combination of three parcels of evidence in order to prove the conspiracy, namely the BKK importation, the AMC importation and the cloning of the other eight companies (including the 6 October discussions around re-using the AMC cloning structure).
On the prosecution case, proof of at least one of the BKK or AMC importations is both sufficient and indispensable. As the applicant submitted in their written contentions filed in the application before this court:
Essentially, the prosecution sought to prove the conspiracy by relying on the evidence that the respondents jointly attempted to import the BKK and AMC consignments. So far as the prosecution relied on a wider range of acts in furtherance of the conspiracy, such as the cloning of other companies, this conduct did not prove the conspiracy independently of the attempted importation of the BKK and AMC consignments. It was only when this wider conduct was viewed in the light of the attempted importations that it could be seen as referable to the one conspiracy.
So understood, a properly directed jury could only convict on the conspiracy charge if they were satisfied that the respondents jointly attempted to import either or both of the BKK and AMC consignments.
Further, the prosecution must also establish at least one of the BKK and AMC importations (in combination with the other cloning evidence) to establish the conspiracy was an ongoing one directed at the importation of consignments (plural). Proof of one of the consignments is also necessary to establish that the conspiracy involved a commercial quantity of methamphetamine.
In short, on any view, the prosecution case rests upon establishing at least one of the importations.
At this point, it is perhaps convenient to recall that the gravamen of the offence of conspiracy is an agreement to pursue an unlawful objective. As is often the case with conspiracy charges, the prosecution is proposing to rely upon individual completed criminal acts to establish, by inference, the existence, nature and scope of the alleged agreement. The prosecution has accepted — correctly, in our view — that proof of the alleged conspiracy requires proof that the respondents were responsible for at least one of the BKK or AMC importations.
However, it is important not to lose sight of the essential ingredients of the conspiracy charge. Proof of the multitude of acts culminating in the BKK and AMC importations is being used by the prosecution to ground an inference with respect to the existence of an agreement, to which each respondent was a party, to import commercial quantities of methamphetamine. But it is not suggested that the underlying objective of the agreement to import consignments (plural) was limited to any particular consignment. Understood in this way, the BKK and AMC importations did not define the agreement; they were a product of it.

If a jury is directed in accordance with the above, it would follow that a finding of guilt would mean that the respondents would fall to be sentenced (at least) upon the following basis:
(a)The respondents entered into a criminal conspiracy aimed at the facilitation of separate consignments (plural) of methamphetamine.
(b)In furtherance of the conspiracy, the respondents participated in at least one of the BKK or AMC consignments.
(c)Even if the respondents were sentenced by reference to their involvement in only one of the BKK or AMC importations, the respondents would still fall to be punished for participation in a scheme which comprehended the importation of consignments (plural) of methamphetamine. The ‘content and duration and reality’ of the conspiracy would be (partly) informed by the continuous nature of that conspiracy, and the fact that it had, as its ongoing objective, the commission of importation offences (plural).
(d)Whether one or other or both of the BKK and AMC consignments are established, the established consignment(s) would also provide content and meaning to the magnitude, organisation and sophistication of the ongoing consignments contemplated by this conspiracy. We will return to this.
(2)The trial judge’s approach to the question of the availability of ‘sufficient and effective’ substantive charges
On the question of the availability of sufficient and effective substantive offences, the trial judge concluded there are
available on the allegations, substantive, sufficient and effective offences that would capture the gravamen of what was done and which could be effectively prosecuted in this case.[58]
[58]Ruling, [56].
The trial judge appears to have reached this conclusion upon the basis of the following subsidiary conclusions:
Contemplating the extensive allegations involved in the importations, their scale, sophistication, duration, rich complexity, and their substantial completion, I conclude that the conspiracy is subsumed by the two substantive offences.
The alleged completed importation offences, if proven, equal and overtake the criminality expressed as the agreement to import, including the ongoing machinery of importation.[59]
[59]Ruling, [50]–[51].
Added to this is the trial judge’s conclusion that
[t]he most serious features of the alleged conduct are the implementation of the plan, rather than the alleged broader criminal design.[60]
[60]Ruling, [78].
As for the additional criminality revealed by the evidence of the cloning of the additional eight companies, the trial judge said:
The additional criminality in this case could be the subject of extra charges. It may also have a role in sentencing and the rebuttal of contradictory submissions upon sentence. In any event, the application of the principle in relation to sufficient and effective alternative charges requires the alternatives to be sufficient and effective not purely identical.[61]
[61]Ruling, [53].
It is true that the following propositions may be accepted about the alternative theoretical substantive charges (which the applicant concedes):
(a)The BKK and AMC importations could be represented by charges of jointly attempting to import a commercial quantity of a border-controlled drug,[62] contrary to ss 11.2A(1), 11.1(1) and 307.1(1) of the Criminal Code.
(b)Joint liability by virtue of s 11.2A(1) of the Criminal Code would capture the agency by which each respondent acted through the other.
(c)Although attempt is an inchoate offence, it may be treated as substantive for the purpose of the Hoar principle.
(d)The wider conduct concerning the cloning of other companies could be charged as identity fraud offences such as those contained in Division 372 of the Criminal Code. (The trial judge instead nominated the state offence of possession of identification information contrary to s 192C of the Crimes Act 1958).
(e)These substantive charges would provide adequate scope for sentencing. The fact that the respondents acted pursuant to an agreement, for the purpose of s 11.2A(1), would require each to be sentenced by reference to the acts of other parties to the agreement,[63] and for the sentence to reflect the planning that was involved in the formation and implementation of the agreement.
[62]Ruling, [42].
[63]R v Wright [2009] NSWCCA 3, [28].
Further, a sentencing judge would be entitled to have regard to the fact that the offences constituted a course of conduct, for the purpose of s 16A(2)(c) of the Crimes Act 1914 (Cth).[64]
[64]Elzein v The Queen [2021] NSWCCA 246, [252].
Nevertheless, the intended scope of this alleged conspiratorial enterprise, as framed by the prosecution, is not confined to an isolated importation, or even to the implementation of two specific importations (i.e., BKK and AMC).
On the prosecution case, this alleged conspiracy is an open-ended enterprise which contemplates the importation of consignments (plural) of methamphetamine — not limited by number, time, or quantity of drugs. In our view, having regard to the prosecution case, the two possible substantive importation charges simply do not capture this intended field of operation; they ‘fail to reflect and portray the real nature of what was going on.’[65] It is to be remembered that, on the prosecution case, the respondents continued with the second importation even after they suspected the first one had been intercepted and continued with the process of cloning after the second consignment had also been intercepted.
[65]R (Commonwealth) v Baladjam (No 4) (2008) 270 ALR 106, 124 [57]; [2008] NSWSC 726.
Identity fraud charges would also not reflect the real purpose or true criminality behind such activity, namely that it was to further this overarching and continuing drug importation scheme.
The trial judge appears to have concluded that the implementation of the BKK and AMC importations came close to giving full effect to the conspiracy. As much is revealed by her conclusion that ‘the conspiracy is subsumed by the two substantive charges’[66] and that ‘the most serious features of the alleged conduct are the implementation of the plan, rather than the alleged broader criminal design’.[67]
[66]Ruling, [50].
[67]Ruling, [78].
There can be no doubt that, on the prosecution case, the BKK and AMC importations are manifestations of the execution of the conspiracy. Together, or separately, they constitute grave offending. But they do not represent the parameters or reach of the conspiracy as framed by the prosecution, which was ongoing and anticipated future consignments.
The evidence as to the cloning of the additional eight companies (and the electronic surveillance evidence which reveals an intention to repeat or re-use this cloning model beyond the initial BKK and AMC consignments) will only occupy an insignificant portion of the trial. Also, unlike the cloning work undertaken with respect to BKK and AMC, the work carried out on the cloning of these additional companies was not ultimately deployed to facilitate an importation.
Yet, once it is accepted that the criminality associated with this conspiracy is principally informed by the breadth of criminality covered by the agreement, and not (merely) by its implementation, this additional cloning evidence assumes some real importance.
It sheds light upon the extended scope of this agreement, and it confirms that it is the conspiracy which subsumes the BKK and AMC importations, not the other way around (contrary to what the trial judge found).
The analysis urged upon her Honour by the respondents, and which appears to have been accepted by her, was essentially that the BKK and AMC importations should or could be viewed as individual and distinct activities (separately from each other and from the further cloning activities) when in truth they were all part of the one composite pursuit.
In short, the criminality embodied by the conspiracy charged is not satisfactorily covered by two substantive offences.
With respect, we are unable to agree with the trial judge’s conclusions that ‘the wrong structure is being harnessed to prosecute this case’,[68] and that the possible alternative substantive charges were relevantly ‘sufficient and effective’. For the reasons we have given, there are apparent good reasons why the applicant considered that a conspiracy charge is a more effective and more appropriate charge, and better reflects the extensive and ongoing nature of this scheme.
(3)The trial judge’s approach to the question of adverse consequences as to sentencing
[68]Ruling, [77].
We now turn to the trial judge’s conclusions with respect to the potential sentencing exercise.
In her ruling, the trial judge listed a catalogue of sentencing possibilities:
[O]n a hypothetical finding of guilt, the following scenarios, at least, would fall to be determined by the sentencing court:
(a)the jury was unanimously satisfied that the BKK importation took place (288.44 kg);
(b)the jury was unanimously satisfied that the AMC importation took place (160.3 kg);
(c)the jury was unanimously satisfied that both importations took place (about 448 kg);
(d)the jury were not satisfied that either importation took place but were otherwise satisfied that the accused entered into an agreement to import a commercial quantity of a border controlled drug of a quantity in excess of 750 g;
(e)some jurors may have found the accused attempted one but not the other importation, whereas others may have come to the opposite view.[69]
[69]Ruling, [62].
The trial judge was centrally concerned about the possibility that a finding of guilt may not even entail an acceptance of either of the BKK or AMC consignments. Immediately following the above catalogue of possibilities, her Honour emphasised:
The court would then be required to find facts consistent with the jury’s verdict upon which to appropriately punish the accused. On these possibilities, anything between a finding of an agreement to import something in excess of 750 g of methamphetamine to an attempt to import amphetamine in a quantity approaching half a tonne and potentially additional criminality expressed in the ‘standby mechanics’ for future importations would be open.[70]
[70]Ruling, [63].
The trial judge returned to this concern later in her ruling:
In this case, the scale of culpability between a conspiracy to intentionally import 750 g of methamphetamine and a conspiracy to import an amount in excess of 448 kg of the same drug would place the sentencing court in a vast and deep ocean of fact-finding after verdict.[71]
[71]Ruling, [75].
These potential consequences drove the trial judge’s conclusion, when coupled with the availability of substantive charges, that the interests of justice required dismissal pursuant to s 11.5(6). In so finding, the trial judge relied upon the statement from Teague J in R v Dowding (‘Dowding’)[72] that a factor in favour of dismissal under the equivalent of s 11.5(6) might be whether adverse consequences as to sentencing might result.
[72]R v Dowding [2000] VSC 439, 11-2 [20].
We think it is apparent from the passage reproduced above that the trial judge gave significant weight to this perceived sentencing issue in her decision.
No submission has been made that the respondents are exposed to an unfair penalty range (alluded to in Hoar). Rather, the trial judge accepted the respondents’ argument that the factor of ‘adverse consequences as to sentencing’ extends to the circumstances where a sentencing judge is left with having to resolve complex and contentious disputes as to fact which have a wide-ranging effect on the assessment of moral culpability and criminality.
More specifically, it seems the trial judge was persuaded by the respondents’ argument that a verdict on this conspiracy charge would ‘impermissibly shift the responsibility of finding critical facts from jury to judge’. We take this to reflect a concern that the prosecution may secure an advantage by having the sentencing judge find that the respondents’ criminality is potentially greater than the jury necessarily found.[73]
[73]Cheung v The Queen (2001) 209 CLR 1, 31 [87] (Gaudron J); [2001] HCA 67.
The hurdle which confronts arguments of this kind is that they conflict with established authority that it is both acceptable and common for the sentencing task to require significant and difficult fact-finding.[74]
[74]Cheung v The Queen (2001) 209 CLR 1 (Gleeson CJ, Gummow and Hayne JJ); [2001] HCA 67; Savvas v R (1995) 183 CLR 1; [1995] HCA 29.
As the plurality in the High Court said in Cheung:
[T]here was no obligation on the prosecution to frame an indictment in such a manner as to elicit, in an artificial fashion, a jury verdict covering every possible view of the facts which might yield a conclusion of possible significance to sentencing. Suppose, for example, that the co-offender Ng had given evidence. He may have given a version of the facts according to which the appellant’s involvement in the importation was in fact in January 1989. Would that call for three counts? At the commencement of the trial, the prosecution may well have been unsure about how the evidence as to the period of the appellant’s involvement would emerge.[75]
[75]Cheung v The Queen (2001) 209 CLR 1, 21 [44] (Gleeson CJ, Gummow and Hayne JJ); [2001] HCA 67.
And later:
The present was not a case in which the appellant should have been charged with more than one offence. It is not the duty of the prosecution, when framing an indictment, to endeavour to construct the charges in such a way as to obtain a jury verdict upon all issues of significance to sentencing. And, because of the importance of motive to the plea in mitigation, it would not have served the appellant's purposes in any event.[76]
[76]Cheung v The Queen (2001) 209 CLR 1, 23–4 [51] (Gleeson CJ, Gummow and Hayne JJ); [2001] HCA 67.
We doubt that a sentencing dilemma of the kind relied upon in this case is a relevant consideration to the exercise of the power under s 11.5(6).
We are, however, prepared to proceed upon the footing that dismissal under s 11.5(6) may be justified in some circumstances where the criminality issues left unresolved by a conspiracy verdict would be just too great.
However, accepting this, we would conclude that the sentencing landscape in this case did not favour dismissal.
It may be accepted that questions or controversies around whether the respondents were involved in the BKK or AMC importation, or both importations, are not immaterial to sentence.
But, in our view, the potential difficulties presented by the different sentencing permutations concerning the BKK and AMC importations in this case are just not as real or as significant as the trial judge apprehended.
It seems to us that the trial judge’s concerns have proceeded upon a misconception of the ambit and evidentiary foundation of the prosecution case for the conspiracy, and the true effect of a finding of guilt.
For the following reasons, we think the verdict itself will substantially frame, and meaningfully illuminate, the respondents’ culpability and criminality.
First, given a concession made by Senior Counsel for the applicant, a finding of guilt would necessarily involve a finding that the respondents were party to a scheme which contemplated the intended facilitation of consignments (plural) containing methamphetamine, using the cloning method. As Senior Counsel for the applicant made clear on the application before us, that is the gist of the agreement alleged, and that is the agreement which the applicant accepts must be proved. That is a legitimate forensic decision, which was undoubtedly informed by what is revealed by the evidence. The continuous multi-consignment nature of this conspiracy will significantly inform the scale and gravity of the respondents’ criminality.

The potential controversy of whether the respondents implemented one or both of the BKK and AMC importations is not determinative of the question of whether the criminal scheme was concerned with the importation of consignments (plural). That will be resolved by the verdict itself. Punishing the respondents for having been party to such an ongoing scheme does not depend upon a finding that they participated in both the BKK and AMC importations.
Second, as a finding of guilt depends on proof of at least one of the BKK (288 kg) or the AMC (160 kg) importations having taken place in furtherance of the conspiracy, the respondents will fall to be sentenced upon that basis. The trial judge’s concern that the jury might not be satisfied that either importation took place, but might otherwise be satisfied that the respondents entered into an agreement to import something in excess of the bare threshold commercial quantity for this drug (750 grams), was misplaced. Such a finding would conflict with the jury’s verdict.
Third, while the quantities associated with the BKK importation (288 kg), the AMC importation (160 kg), and the aggregate of the two (448kg), are self-evidently mathematically different, when measured against the commercial quantity threshold (750 grams), these quantities are broadly of a similar order. They each represent enormous quantities of pure methamphetamine, each more than 100 times greater than the commercial quantity threshold.
Fourth, and further to the last point, the question of the quantities involved in the BKK and AMC importations will, in any event, only inform,[77] not confine, an assessment of the magnitude of the quantities involved in this offending. This is because the respondents would not fall be to be sentenced for these substantive importations. Rather, they will fall to be sentenced for the wider conspiracy. By its very nature, the quantities intended to be imported by this conspiracy exceeded the quantities which were in fact imported under the BKK or AMC consignments respectively. That must be so, given that the conspiracy was directed at the importation of consignments (plural).
[77]Savvas v The Queen (1995) 183 CLR 1, 5; [1995] HCA 29.
By way of conclusion, whether the respondents ultimately fall to be sentenced by reference to one of BKK or AMC, or both, the nature of the alleged conspiracy — involving as it does the contemplation of consignments (plural) — reveals sophisticated and organised criminality somewhere at the very high end on the spectrum for offending of this kind.
So understood, the sentencing judge would not be left ‘at sea’ in assessing the respondents’ criminality and culpability.
The trial judge was also concerned that the sentencing task will be further complicated by the possibility that ‘some jurors may have found the accused attempted one but not the other importation, whereas others may have come to the opposite view.’ There remains a possible remedy to the trial judge’s concern about unanimity, short of the more extreme step of dismissing the conspiracy charge, namely an extended unanimity direction. This may be required on general principles,[78] or because the prosecution must prove that an overt act was committed pursuant to the conspiracy.[79]
[78]Where the bases for conviction involve materially different issues or consequences, the jury must be unanimously satisfied that the requirements of at least one of the bases have been met. See R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98.
[79]At common law, conspiracy is complete upon the entry into an unlawful agreement. Nothing need be done in pursuit of the agreement. An overt act performed in implementing that agreement is not an ingredient, or element, of the offence itself. See R v Caldwell (2009) 22 VR 93, 99–100 [62]–[63] (Weinberg JA); [2009] VSCA 41. A conspiracy under s 11.5 of the Criminal Code differs from the common law. See s 11.5(2)(c) This additional requirement has been described not as element of the conspiracy, but as a pre-condition to proof of the conspiracy, which must be proved to the criminal standard. See R v LK (2010) 241 CLR 177 (Gummow, Hayne, Crennan, Kiefel and Bell JJ), 234–5 [141]; [2010] HCA 17. There is authority that the introduction of this requirement carries with it the need for juror unanimity. See R v Lake (2007) 174 A Crim R 491, 510 [67] (Holmes JA, McMurdo P and Jerrard JA agreeing); [2007] QCA 209.

Determining whether an extended unanimity direction is required will likely depend upon the precise nature of the prosecution’s case and the defence, and what the live issues are at the conclusion of the evidence.[80]
[80]R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98.
The point that we make is that, as matters stand, it is speculative as to whether this unanimity dilemma will crystallise at the sentencing stage.
This leaves the argument of the first respondent that there is a possibility that the charge, as currently framed, could result in the jury returning a guilty verdict upon the basis they are satisfied that he joined or formed an agreement with the second respondent but only after the importation of the BKK and/or AMC consignments. The argument is premised upon an assumption that the jury is satisfied that the BKK and/or AMC consignments took place in furtherance of the conspiracy.
We reject this contention for two reasons.
First, it is — contrary to the submission of the first respondent — an unrealistic scenario. Most of the evidence which implicates the first respondent in the conspiracy relates to the BKK and AMC importations, both in terms of quantity and cogency. The prosecution also seeks to prove the conspiracy — and the participation of the respondents — by relying on the evidence that the respondents jointly attempted to import the BKK and AMC consignments. It is wholly improbable that a jury will conclude the respondents joined the conspiracy without satisfaction of their involvement in either of the BKK or AMC importations.
Second, acceptance of this scenario as a realistic possibly would still not militate in favour of the dismissal of the conspiracy charge. The first respondent is basically saying ‘substantive charges would give me a chance of a full acquittal, notwithstanding that I became a party after AMC’. If that is a possibility, the case in favour of a conspiracy charge becomes stronger still — it would be the only way to ensure that the first respondent’s (serious) criminality is punished. The legislature could not have intended that s 11.5(6) would be employed to allow someone engaged in a conspiracy to import in excess of a commercial quantity of drugs to escape liability.
(4)The trial judge’s approach to the question of prosecutorial discretion
The trial judge addressed the question of the relevance of the prosecutorial discretion to her decision in her ruling as follows:
The parties were somewhat divided, however, as to whether deference to the principal of prosecutorial discretion is a relevant consideration in the exercise of the discretion. [Counsel for the prosecution] argued that the Court, in considering exercising the power in s 11.5.(6), should remain mindful of the independence of prosecutorial discretion. He derives support for this argument from the case of Elomar v R where the Court said that, in the consideration of the exercise of the discretion conferred by s 11.5(6), courts should not ‘lose sight of the principle or the reason for its existence’; the discretion should only be exercised ‘in rare cases’.[81]
[81]Ruling, [32].
In the face of this passage, the contention advanced by the applicant that the trial judge failed to give consideration to this factor cannot be sustained.
Nonetheless, we think there is substance in the applicant’s contention that her Honour did not give this sufficient weight. The trial judge’s misapprehension concerning the nature of the conspiracy charge (and the strong apparent justification for its preferment by the Director) likely affected the weight which she must have attached to the significance of the prosecutorial discretion in this case. We will return to this below when exercising the power ourselves.
PART G:THE STANDARD OF REVIEW
A question has arisen as to whether the applicable standard for appellate review of a decision to dismiss a conspiracy charge under s 11.5(6) is the ‘correctness standard’[82] or the standard of review of discretionary decisions, almost universally referred to as the House v The King standard.[83]
[82]See, eg, Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9.
[83]House v The King (1936) 55 CLR 499, 504–5.
The identification of the applicable standard for appellate review turns on the nature of the decision made by the court below. Discretionary decisions — that is, decisions where more than one answer is legally open — are governed by the House v The King standard. The ‘correctness standard’, on the other hand, applies to decisions, including those involving a value judgment or evaluative process, where the law tolerates but one correct answer. The line is not always easy to draw.
Until now, a decision under s 11.5(6) (or its predecessor) has been regarded as a discretionary decision.[84] In Dowding, Teague J described the power of dismissal as a ‘true discretion’.[85] In Elomar (which was an appeal against conviction, not an interlocutory appeal), the NSWCCA said that the court ‘can only interfere if it be shown that [the trial judge] erred in one of the ways set out in House v The King’.[86] The Court did not elaborate on why the House v The King standard applied; it appears to have been assumed.
[84]Elomar v The Queen (2014) 316 ALR 206, 302 [502]; [2014] NSWCCA 303; R v Dowding [2000] VSC 439.
[85]R v Dowding [2000] VSC 439, [20].
[86]Elomar v The Queen (2014) 316 ALR 206, 302 [502]; [2014] NSWCCA 303.
In oral argument, the applicant sought to draw a parallel between the power of dismissal under s 11.5(6) of the Criminal Code and the power to grant a permanent stay. This became the focal point of the parties’ submissions. It was accepted that, if the power to dismiss a conspiracy charge is not relevantly different from the power to grant a permanent stay, the standard of review that applies to the latter would regulate the former. Of course, as the first respondent submits, this is not a matter of simply transposing one area of the law onto another. In addition to considering the nature and effect of the power to dismiss a conspiracy charge, it is also necessary to consider the text, context and purpose of s 11.5(6) of the Criminal Code and s 295 of the CPA.
In our view, the comparison between the power to dismiss a conspiracy charge and the power to grant a permanent stay is a useful one.
Until the High Court’s recent decision in GLJ v The Trustees of the Roman Catholic Church of Lismore (‘GLJ’),[87] a decision to grant a permanent stay of a prosecution was regarded as a discretionary decision that could accommodate reasonable differences of opinion. On that basis, this Court has long accepted that the standard of appellate review of such a decision is the House v The King standard.[88] The position has now changed.[89]
[87][2023] HCA 32.
[88]DPP v MK and TRF [2023] VSCA 187, [18]; DPP v Tuteru [2023] VSCA 188, [70]–[71].
[89]See, eg, Weiden v YZ (a pseudonym) & Anor (No 2) [2023] VSCA 294.
In GLJ, the High Court considered the standard of appellate review of an order of a court permanently staying proceedings on the ground that a trial will be necessarily unfair or so unfair or oppressive to the defendant as to constitute an abuse of process. The Court held that the applicable standard was the ‘correctness standard’.[90] Although GLJ concerned a civil proceeding, there is no reason in principle why it would not also apply to criminal proceedings.
[90]GLJ v The Trustees of the Roman Catholic Church of Lismore [2023] HCA 32, [1], [15], [23] (Kiefel CJ, Gageler and Jagot JJ), [95]–[96] (Steward J), [161] (Gleeson J).
It is helpful to reproduce the essential reasoning of the judgment of the plurality (Kiefel CJ, Gageler and Jagot JJ). The plurality’s conclusion, foreshadowed early in the judgment, was as follows:
As explained below, an exercise of power under s 67 of the Civil Procedure Act to permanently stay proceedings on the ground that they are an abuse of process as any trial will be necessarily unfair or ‘“so unfairly and unjustifiably oppressive” as to constitute an abuse of process’ is an evaluative but not a discretionary decision. Proceedings either are or are not capable of being the subject of a fair trial or are or are not so unfairly and unjustifiably oppressive as to constitute an abuse of process. Accordingly, the applicable standard of appellate review is not that specified in House v The King, but the ‘correctness standard’ as explained in Warren v Coombes.[91]
[91]GLJ v The Trustees of the Roman Catholic Church of Lismore [2023] HCA 32, [15] (citations omitted).
As to the characteristics of a discretionary decision to which House v The King applies, their Honours explained:
The reasoning in House v The King applies to judicial decisions involving an exercise of discretion. It has been said that the concept of a ‘discretion’ is ‘apt to create a legal category of indeterminate reference’, but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for ‘value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right’. The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the ‘correctness standard’ applies) was identified as that between questions lending ‘themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions’ in which event ‘it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance’, and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.[92]
[92]GLJ v The Trustees of the Roman Catholic Church of Lismore [2023] HCA 32, [16] (citations omitted).
The plurality observed that the ‘correctness standard’ applies to the grant of a permanent stay of proceedings essentially for these reasons:
The extreme step of the grant of a permanent stay of proceedings demands recognition that the questions whether a trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process each admit of but one uniquely right answer.[93]
[93]GLJ v The Trustees of the Roman Catholic Church of Lismore [2023] HCA 32, [17] (citations omitted).
The plurality also reaffirmed the long-established principle that the power to grant a permanent stay is
rightly said to be exercisable only in an exceptional case. This is because it is always an extreme step to deny a person the opportunity of recourse to a court to have their case heard and decided.[94]
[94]GLJ v The Trustees of the Roman Catholic Church of Lismore [2023] HCA 32, [21] (citations omitted).
It being a court’s duty to hear and decide a case in circumstances where its jurisdiction has been properly invoked, their Honours considered that
it would be wrong in principle for the appellate court to decide the appeal in such a case on other than the general ‘correctness standard’.[95]
[95]GLJ v The Trustees of the Roman Catholic Church of Lismore [2023] HCA 32, [23].
It follows that, because the correctness standard applies, ‘the duty of [the] Court “is to decide the case — the facts as well as the law — for itself”.’[96]
[96]GLJ v The Trustees of the Roman Catholic Church of Lismore [2023] HCA 32, [28] (citing Warren v Coombes (1979) 142 CLR 531, 552).
The remaining members of the Court — Steward J and Gleeson J — agreed with the plurality’s conclusion on the question of the applicable standard of review.[97]
[97]GLJ v The Trustees of the Roman Catholic Church of Lismore [2023] HCA 32, [95]–[96] (Steward J), and [161] (Gleeson J).
The first respondent, who argued this point on behalf of the respondents, submits that this Court should be cautious to apply GLJ to s 11.5(6) of the Criminal Code, especially on an interlocutory appeal. The first respondent also argued that a permanent stay is not relevantly the same as an order dismissing a conspiracy charge. The first respondent advanced three arguments in support of these contentions.
(a)There is an ‘unwavering line of authority in this jurisdiction’ that the House v The King standard applies to interlocutory appeals. The first respondent notes, for example, that this Court recently observed that ‘[i]nterlocutory appeals about the admissibility of evidence, including the admissibility of tendency evidence, are governed by the principles in House v The King’.[98]
(b)It is important to consider the statutory scheme under which the appeal is being brought. Relying on principles enunciated in the judgment of Edelman J in Minister for Immigration and Border Protection v SZFW,[99] the first respondent says that s 295 of the CPA — especially when one has regard to the requirement of certification — calls for the exercise of judicial restraint in interlocutory appeals. Judicial restraint finds expression in the House v The King standard.
(c)The effect of a decision to dismiss a conspiracy charge is not qualitatively the same as, or similar to, a decision to stay a prosecution. Where a conspiracy charge is dismissed, the prosecution may continue, albeit the Commonwealth Director would need to file a fresh indictment with a different charge (or charges). Further, the concept of the ‘interests of justice’ is broader than the criteria applying to a decision to grant a permanent stay. The latter goes to the roots of the proceeding.
[98]Harlen (a pseudonym) v The King [2023] VSCA 269, [65].
[99][2018] 264 CLR 541. Among other things, the second respondent referred to what Edelman J said at [151]: ‘Where the source of the power and grounds of review is statutory, then any requirement for judicial restraint should be implied from, or based upon, the terms of the statute’.
It may be accepted that the grant of a permanent stay of a prosecution is a more ‘extreme’ step than a decision to dismiss a charge of conspiracy under s 11.5(6). In the event of dismissal, the prosecution still has the opportunity to reframe the indictment with (most likely) substantive charges.
Even accepting this, there is some real force to the contention that the reasoning which underpins GLJ, and its holding, supports the argument that the exercise of a power to dismiss a conspiracy under s 11.5(6) is not a discretionary decision to which the House standard applies:
As we have observed, s 11.5(6) imposes a rigorous test that is only satisfied if the interests of justice ‘require’ dismissal. Like the exercise of the power to permanently stay proceedings, we think this power is ‘exercisable only in an exceptional case’.[100] A decision to dismiss a conspiracy involves the effective denial of a prima facie entitlement or opportunity of the prosecutorial authority to invoke the jurisdiction of the court by the filing of its indictment. Again, as recognised in GLJ, it is always ‘an extreme step to deny a person the opportunity of recourse to a court to have their case heard and decided’.
(a)A dismissal pursuant to s 11.5(6) has the effect of preventing a conspiracy charge from proceeding. It follows that it amounts to a final determination of that charge against the prosecution, albeit not one based on the merits. Parallels can be drawn with the decision to grant a permanent stay.
(b)Just as proceedings either are or are not capable of being the subject of a fair trial, or are or are not so unfairly and unjustifiably oppressive as to constitute an abuse of process, a dismissal of a conspiracy charge is either ‘required’ in the interests of justice (in which case it must be dismissed) or it is not (in which case it cannot be dismissed). By parity of the reasoning with GLJ in relation to a decision to grant a permanent stay of proceedings, a decision as to whether to dismiss a conspiracy charge under s 11.5(6) ‘admits of but one uniquely right answer’.
(c)In the light of the reasoning in GLJ, there is a persuasive argument that a decision under s 11.5(6) ought now be viewed as an evaluative decision that admits of only one answer, in which case the standard of appellate review is the general ‘correctness standard’.
[100]GLJ v The Trustees of the Roman Catholic Church of Lismore [2023] HCA 32, [21].
That all said, there is an intermediate appellate decision (Elomar) which holds that a dismissal decision under s 11.5(6) is discretionary. There also exists a series of authorities which concern the approach to be taken to an ‘interests of justice’ test within different statutory contexts. They have consistently found that the application of such a test involves a discretionary decision upon the basis that any consideration of what the interests of justice require in a particular case may call for the balancing of a whole variety of factors.[101] In addition, this Court has consistently held that the House v The King principles to interlocutory appeals.[102]
[101]Reid v The Queen [1980] AC 343, 346 (whether, following a successful appeal against conviction, ‘the interests of justice so require … a new trial’); Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601, 613 (Kirby P) (whether, by reason of insufficiency of inquiry, discovery of new facts or evidence, or otherwise, the Supreme Court is satisfied that ‘it is necessary or desirable in the interests of justice’ that a fresh inquest be held); Landsman v The Queen (2014) 88 NSWLR 534, 607–9; [2014] NSWCCA 328 (fresh evidence may be given ‘only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given’).
[102]Recent examples are: Moore (a pseudonym) v The King [2023] VSCA 236 (regarding an evaluative conclusion in relation to the admissibility of hearsay evidence under s 65 of the Evidence Act 2008); Matthews (a pseudonym) v The King [2023] VSCA 229 (regarding the admissibility of tendency evidence under s 97 of the Evidence Act 2008); Headland (a pseudonym) v The King [2023] VSCA 174 (regarding the admissibility of admissions under ss 85 and 90 of the Evidence Act 2008). Until now, this was also the approach to the interlocutory appeals concerning the granting of a permanent stay 18 August 2023 in DPP v MK & TRF [2023] VSCA 187, and 17 August 2023 in DPP v Tuteru [2023] VSCA 188.
Without deciding the point, we are content, for present purposes, to follow Elomar and proceed upon the basis that the principles in House v The King apply. We have found error in accordance with House v The King. This case does not call for a resolution of the controversy relating to the applicable appellate review standard, especially on an interlocutory appeal. The question can wait to be resolved on another occasion.
PART H:CONCLUSION
Applying the principles derived from House v The King, we are satisfied that the discretion miscarried.
The trial judge proceeded upon an erroneous premise concerning a central and material factual consideration, namely the breadth and nature of the conspiracy framed by the prosecution.
In misapprehending the essence of the prosecution case, the trial judge failed to appreciate the force behind the applicant’s reasons for preferring a conspiracy charge over the other charges that might have been available on the evidence.
This misapprehension flowed through to the trial judge’s conclusion in relation to whether there were sufficient and effective substantive charges available, her consideration of the sentencing consequences, and ultimately her decision that the interests of justice ‘required’ dismissal.

In considering the exercise of the power in s 11.5(6) afresh, we would reject the application to dismiss the conspiracy charge.
In summary:
(a)Objective reasons supporting the preferment of a conspiracy charge can be clearly discerned from the prosecution case and evidence.
(b)Conversely, no good countervailing interests of justice reasons favouring dismissal have been identified.
(c)The possible alternative substantive charges were not relevantly sufficient and effective.
(d)The sentencing consequences did not militate in favour of dismissal.
(e)No disadvantage or injustice that would flow to the respondents by the selection of a conspiracy charge has been clearly identified. It was not suggested that the prosecution gained an unfair forensic advantage by choosing conspiracy over substantive charges.[103]

(f)There was no likelihood that the conspiracy charge would prolong or add complexity to the trial. Substantive charges would involve two forms of extended liability (attempt and joint liability).[104] To echo the words used in Elomar, the ‘prosecution of multiple substantive offences as joint criminal enterprises would present extraordinary complexities for the court, for the jury, and, indeed, for defence counsel’.[105]
[103]In a trial of the substantive charges, the evidence supporting each charge would largely be admissible in support of the other charge to prove the agreement that underpinned all of the offending. We note that the existence of the agreement would be directly relevant to liability by virtue of s 11.2A(1)(a).
[104]In the trial Court, the prosecution indicated that, were the conspiracy charge to be dismissed under s 11.5(6), it would likely prefer at least two charges of attempting to import a commercial quantity of a border controlled drug, contrary to ss 11.1(1) and 307.1(1) of the Criminal Code, on a joint commission basis (by virtue of s 11.2A of the Criminal Code). Section 11.1(1) of the Criminal Code makes it an offence to attempt to commit an offence against the laws of the Commonwealth. Section 11.2A of the Criminal Code sets out the circumstances in which a person is taken to have committed a ‘joint offence’; that is, where an offence is committed in accordance with an agreement.
[105]Elomar v The Queen (2014) 316 ALR 206, 302–3 [504]; [2014] NSWCCA 328.

We have already observed above that it could not have been the legislature’s intention to permit a court to enter the arena of prosecutorial decision-making lightly and without very good reason to do so. There are no good reasons present here which would move us to a position of satisfaction that the interests of justice require dismissal in this case.
If the standard of appellate review is the correctness standard, it would then be the duty of this Court to decide the case — the facts as well as the law — for itself. Were we to do that, we would find that the decision to dismiss the conspiracy charge was incorrect, for the reasons we have given.
PART I:FINAL OBSERVATION

During the argument before the trial judge the prosecution did not commit — as sharply and as emphatically as they have before us — to the necessity, in this case, of proving at least one of the BKK or AMC importations. It was only after extensive questioning by the trial judge that the trial prosecutor appeared to clarify that the prosecution case did depend upon acceptance of at least one of the BKK or AMC importations.[106]
[106]T314–T317.
Nor did the trial judge have identified for her, with the clarity we have received, the sentencing consequences which would follow from proof of this conspiracy having regard to the manner in which the prosecution has framed its case. That was so, despite her Honour seeking answers from counsel.[107]
[107]T139–T143.
This did not make her Honour’s task (which was, on any view, a complex one) any easier.
It is important in cases like these — which are legally and factually complex — that the prosecution commit to the framing of their case (and the requisite proofs) early, unambiguously, and with precision. It should not fall on the trial judge to draw out these issues from the prosecution.
PART J:ORDERS
We would grant leave to appeal, allow the appeal and set aside the order dismissing the conspiracy charge.

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[2023] VSCA 315

12 December 2023