R v El Azzi

[2001] NSWCCA 397

Reported Decision: 125 A Crim R 113

New South Wales

Court of Criminal Appeal

CITATION:	R v El Azzi [2001] NSWCCA 397
FILE NUMBER(S):	CCA 60543/01
HEARING DATE(S):	02/10/01
JUDGMENT DATE:	8 October 2001
PARTIES :	Regina v William El Azzi
JUDGMENT OF:	Mason P at 1; Levine J at 2; Howie J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0667; 01/11/0728
LOWER COURT JUDICIAL OFFICER :	Hock DCJ

COUNSEL :	M. Grogan - Crown C. Waterstreet - Applicant
SOLICITORS:	S.E. O'Connor - Crown Kings Lawyers - Applicant
CATCHWORDS:	Appeal against interlocutory judgment - abuse of process - conspiracy to commit the impossible
LEGISLATION CITED:	Criminal Appeal Act 1912 - s 5F Drug Misuse and Trafficking Act 1985 - ss 3, 24, 26 Criminal Procedure Act 1986 - s 47
CASES CITED:	R v McCoy [2001] NSWCCA 255 R v Glossop [2001] NSWCCA 165 BWM (1997) 91 A Crim R 260 Mok (1987) 27 A Crim R 438 Checconi (1988) 34 A Crim R 160 McCready (1985) 20 A Crim R 32 DPP v Nock [1978] AC 979 R v Barbouttis (1995) 37 NSWLR 256 Walton v Gardner (1993) 177 CLR 378 Ridgeway v The Queen (1995) 184 CLR 19 R v Kingswell [1984] 3 NSWLR 273 Kapeliotis and Mari (1995) 82 A Crim R 300 R v Smith [1975] AC 476 R v Shivpuri [1987] 1 AC 1 R v Mai (1992) 26 NSWLR 371 R v Sew Hoy [1994] 1 NZLR 257 Maxwell v HM Advocate [1980] SLT 241 Howard Smith Paper Mills Ltd v The Queen (1957) 8 DLR 2d 449 R v Murray [2001] NSWCCA 289 R v Smith [1995] 1 VR 10
DECISION:	Application for leave to appeal is refused

IN THE COURT OF
CRIMINAL APPEAL

60543/01

MASON P
LEVINE J
HOWIE J

MONDAY 8 OCTOBER 2001

REGINA v WILLIAM EL AZZI
JUDGMENT

1    MASON P: I agree with Howie J.

2    LEVINE J: I agree with the order of Howie J and his reasons therefor.

3 HOWIE J: This is an application for leave to appeal under s 5F of the Criminal Appeal Act against an interlocutory judgment of Judge Hock refusing to grant a permanent stay of two counts in an indictment upon which the applicant has been arraigned in the District Court. Those two counts each allege that the applicant conspired with others to manufacture a prohibited drug contrary to s 26 of the Drug Misuse and Trafficking Act. There were two bases upon which it was said that the proceedings were an abuse of process and so should be stayed: firstly, it was contended that the conspiracies alleged did not amount to a criminal offence and, therefore, the proceedings in respect of those two counts were doomed to fail; secondly, it was contended that it was unfair for the prosecution to proceed on conspiracy charges in respect of the facts giving rise to those counts, even if it were legally open to the Crown to do so.

4    The three counts on the indictment were as follows:

1. Between 1 December 1995 and 31 January 1996 at Sydney, in the State of New South Wales, did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine, being an amount not less than the large commercial quantity.
2. Between 1 January and 30 April 1996 at Dooralong and elsewhere, in the state of New South Wales, did conspire with Damien Drew, Richard Simpson, Kim Knight, Georgina Phillips and others to manufacture a prohibited drug, namely methylamphetamine, being an amount not less than the large commercial quantity.
3. Between 1 April 1996 and 30 June 1996 at Sylvania Waters and elsewhere, in the state of New South Wales, did conspire with Richard Simpson, Robert Proctor, Rodney Hearne, Trent Brown and others to manufacture a prohibited drug, namely methylamphetamine, being an amount not less than the large commercial quantity.

The stay was sought in relation to the second and third counts.

5    The matter was argued before her Honour on the basis of factual material that was not in dispute so far as the application was concerned. That material consisted of an affidavit in support of the notice of motion seeking the stay and the following annexures: a statement of the Crown’s facts in relation to each count which were treated as being the particulars of the conspiracies alleged; part of the transcript of committal proceedings against Mr Drew, an alleged co-offender in count 2, that being the evidence of a witness named Judd, who was a chemist employed by the Australian Government Analytical Laboratories; a transcript of proceedings in the Local Court during which substantive charges against the applicant in respect of each of the alleged manufactures were withdrawn. Her Honour was also referred to the judgment of this Court in R v McCoy [2001] NSWCCA 255 given on 4 July 2001.

6    On the hearing of this application, the applicant sought to rely upon material additional to that which had been before Judge Hock and wished to argue a further ground, upon which it was said that a trial of the second and third counts would be unfair. In my view the further material should not be received prior to the granting of leave or the determination of the appeal. If leave is granted and the appeal allowed, the new material may then become relevant in determining what orders this Court should make. Nor, in my opinion, should the applicant be heard on the fresh ground for a stay.

7    As was conceded in written submissions for the applicant, this is not a re-hearing of the application before the District Court. The question on the hearing of the appeal, if the application for leave is granted, is whether her Honour erred in the exercise of her discretion to refuse the stay on the material placed before her. In R v Glossop [2001] NSWCCA 165 this Court approved the following statement of Hunt CJ at CL in BWM (1997) 91 A Crim R 260 at 266:

“This Court has already held that, in an appeal pursuant to s 5F, the findings of fact and the exercise of any discretion by the trial judge may be attacked only if error has first been demonstrated, as must be demonstrated in an appeal against conviction. Error may be demonstrated in relation to a finding of fact if there is no evidence to support it, or if the evidence is all one way, or if the judge has misdirected himself or herself leading to a miscarriage of justice; error may be demonstrated in relation to the exercise of discretion if the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to a relevant consideration, or had made an error in relation to the facts (as so demonstrated), or if the result is so unreasonable or plainly unjust that the judge must have failed properly to exercise that discretion."

8    The application for leave raises a number of grounds asserting that Judge Hock erred in various ways in refusing to stay the proceedings. However, in effect the grounds disclose two complaints: firstly, that her Honour erred in the manner in which she identified the nature of the conspiracies alleged in the second and third counts; secondly, her Honour erred in failing to find that the continuation of the prosecution of the applicant was generally unfair.

The facts

9    The first count on the indictment relates to a manufacture of amphetamine which allegedly took place between December 1995 and January 1996 and which was begun at Dee Why and completed at Wentworthville. The Crown alleges that the applicant was involved in this enterprise in three ways: he played the role of caretaker in relation to the premises where the manufacture took place; he provided finance for the purchase of the precursors used in that manufacturing process; he participated in the actual process of manufacture at Wentworthville. It is the Crown’s case that as a result of his involvement in that manufacture he received one kilogram out of the six kilograms of methylamphetamine produced.

10    The second count relates to what is alleged by the Crown to be an attempt to manufacture methylamphetamine at Dooralong. Generally the Crown case is that the applicant organised and supervised the manufacture of the drug using a man named Simpson to carry out the manufacturing process. The Crown alleges that, amongst other things, the applicant secured the premises where the manufacture was to take place and obtained the precursors from which the drug was to be manufactured. The venture was interrupted when on 15 April 1996 police raided the premises being used for the manufacture and arrested two alleged co-conspirators, Knight and Phillips.

11    The allegation in respect of the third count concerns a further attempt by the applicant and others to manufacture methylamphetamine after the police frustrated the attempt at Dooralong. This enterprise commenced at premises in Glenfield but, because of suspected police activity in the area, was moved to Sylvania Waters. The Crown case is that the applicant arranged the premises for the manufacturing of the drug process and supervised the process that was carried out by Simpson. Once again the venture was cut short by the intervention of police. On 13 June 1996 police raided the premises at Sylvania Waters and the applicant was arrested along with Simpson, Hearne, the owner of the premises, and Robert McCoy.

12    The applicant was initially charged with three counts of knowingly take part in the manufacture of methylamphetamine but, for reasons which will become apparent, those charges were withdrawn in the Local Court on 14 August 1996. There has been some indecision by the Crown since that time as to the charges that should be laid against the applicant. It was not until 7 August of this year that the indictment, which is the subject of these proceedings, was presented to the District Court. The difficulty, which the Crown faces in proving the charges initially laid in respect of Dooralong and Sylvania Waters, is that methylamphetamine could not have been manufactured using the chemicals found at those sites.

13 The Crown case against the applicant relies substantially upon the evidence of Simpson who, the Crown alleges, was a participant in each of the three occasions when the applicant was involved in the manufacture of, or an agreement to manufacture, methylamphetamine. He was described in the Crown facts as a person “who was a large-scale drug manufacturer in New South Wales for more than a decade”. Simpson pleaded guilty and was sentenced in respect of substantive offences arising from the activity at Dooralong and Sylvania Waters. The Crown also intends to rely upon the evidence of other persons who are alleged to be co-conspirators with the applicant. They have been given undertakings under s 47 of the Criminal Procedure Act in respect of any evidence they would give at the trial of the applicant.

14    The substantial issue raised before Judge Hock and before this Court is whether it is open to the Crown to charge the applicant with a conspiracy in relation to each of the two incomplete attempts to manufacture methylamphetamine in light of the uncontested evidence that the chemicals being used for the purpose in both cases could not produce that or any other drug. The applicant’s submission is that on the evidence available to the Crown and in the circumstances in which those charges have been laid against the applicant, it is an abuse of process for the Crown to attempt to proceed further with those allegations.

15    The difficulty in which the Crown finds itself can best be illustrated by the decision of this Court in respect of one of the persons arrested with the applicant on 13 June 1996, Robert McCoy. He was charged with knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine. The charge arose from the activities at Sylvania Waters just prior to the arrest of McCoy and the applicant. He was convicted by a jury but on appeal the conviction was quashed and a verdict of acquittal entered. The basis of the successful attack made upon the conviction was the unchallenged evidence before the jury that the chemicals being used in the attempt to manufacture methylamphetamine could not produce that drug.

16 Hulme J gave the leading judgment for the Court. After referring to the provisions of ss 3 and 24 of the Drug Misuse and Trafficking Act his Honour stated:

“[15] On those provisions, there must be a process of manufacture of a prohibited drug, here methylamphetamine, in which the offender takes part. The key issue for present purposes is the width of the concept of a process. At its widest, it may begin with the germination of an intention to produce the prohibited drug and ends, perhaps after numerous false starts and failures, with successful production. Narrowly, it may look to a particular attempt to produce the prohibited drug, involving for example the taking of chemicals, their combination and the result of the chemical reaction.

[16] I do not think it necessary to address in the abstract where in the spectrum a process of manufacture of a prohibited drug lies for the purposes of the Act. It is sufficient that in this case the matter was put to the jury on a narrow basis, whereby the process was that under way at and just prior to the time of the Appellant’s arrest. It was at all times impossible for manufacture of methylamphetamine to occur in the course of the attempt at manufacture in which the Appellant was then involved. Those directing the enterprise could have made another attempt using different chemicals, but that would have been a different process of manufacture of methylamphetamine from that put before the jury. It would not have been the process of manufacture of methylamphetamine being carried on at, and just prior to, the time of the Appellant’s arrest. It was not put to the jury that the process in this case extended to the use of different chemicals if the initial attempt was not successful.

[17] In the process as the matter was put to the jury, however genuinely the Appellant may have thought that the chemicals being used when combined made methylamphetamine, it could not realistically be said that the attempt to combine those chemicals was the taking of a step in the process of manufacture of methylamphetamine. To illustrate the point, however genuinely the appellant may have thought that hydrogen and oxygen when combined made methylamphetamine (rather than water) it could not realistically be said that an attempt to combine those elements was the taking of a step in the process of manufacture of methylamphetamine. The chemicals in the present case were just not appropriate for the purpose, and there was no process of manufacture of methylamphetamine.”

It was held that, although McCoy may have been guilty of attempting to manufacture methylamphetamine, he was not guilty of the offence charged.

17    It is clear that in order to avoid the same fate as the prosecution of McCoy, the Crown has elected to proceed against the applicant by way of charges of conspiracy in respect of the activity at Dooralong and Sylvania Waters. In general the criminal courts do not look favourably upon a charge of conspiracy where a substantive offence is available on the evidence: Mok (1987) 27 A Crim R 438 at 443; Checconi (1988) 34 A Crim R 160 at 163. However, there is no power of the court to stay a prosecution merely because the Crown has preferred a charge of conspiracy unless there is some ulterior motive behind that election: McCready (1985) 20 A Crim R 32 at 40. In any event, there seems to be no dispute between the parties that a substantive offence, such as charged against McCoy, would necessarily fail. It is the fact that the Crown continues to prosecute the appellant notwithstanding the acquittal of McCoy that is said to be one cause of unfairness to the applicant.

18 The two counts are charged under s 26 of the Drug Misuse and Trafficking Act. A suggestion in the written submissions for the applicant that Judge Hock dealt with the matter before her as if they were common law offences has no merit. However, I can see no difference in the principles to be applied when the prosecution involves statutory conspiracies as distinct from a conspiracy at common law. Whether or not the particular conspiracy charged can be proved upon the evidence relied upon by the Crown will depend upon the terms of the actual conspiracy charged rather than upon it being identified as a statutory or common law conspiracy.

19    Putting aside for the moment any question of unfairness to the applicant arising from the proceedings generally, the substantial issue in this application is: can the Crown charge the applicant with conspiracy to manufacture a prohibited drug in circumstances where the chemicals allegedly being used by the applicant in carrying out that conspiracy were, unbeknown to him, of a nature that they could not be used to manufacture a prohibited drug? The applicant relies upon the authority of DPP v Nock [1978] AC 979 and more recently R v Barbouttis (1995) 37 NSWLR 256 to assert that the answer to that question is in the negative.

Conspiracies to do the impossible

20    In DPP v Nock the conspirators intended to produce cocaine by separating that drug from other substances that they believed contained a mixture of cocaine and lignocaine. However, the substance in fact contained no cocaine so that it was impossible to produce that drug in the way in which the conspirators intended to do. The House of Lords held that the conspirators had not committed a crime because it was not possible to achieve the object of the conspiracy by the course of conduct undertaken.

21    Of fundamental importance to that decision was the characterisation of the conspiracy that was alleged by the Crown. Lord Russell of Killowen said (at 993):

"The important point to note is that the agreement that is said to have been an unlawful conspiracy was not an agreement in general terms to produce cocaine, but an agreement in specific terms to produce cocaine from a particular powder which in fact, however treated, would never yield cocaine. In order to see whether there is a criminal conspiracy it is necessary to consider the whole agreement. The specific limits of the agreement cannot be discarded, leaving a general agreement to produce cocaine, for that would be to find an agreement other than that which was made: and that is not a permissible approach to any agreement, conspiracy or other."

According to their Lordships, the decisive fact which determined that the charge must fail was that the agreement was to carry out a course of conduct that could not in any way result in the offence alleged to be the subject of the agreement: the production of cocaine.

22    The applicant before this Court argues that the conspiracy alleged in the present case was to manufacture methylamphetamine by using certain chemicals that, as it so happened, could not produce that drug. Relying upon the authority of DPP v Nock, it is submitted on behalf of the applicant that the agreements, which are the subject of the two conspiracy charges, could not have resulted in the commission of a criminal offence and, therefore, are not themselves unlawful. It is further submitted that for this reason the prosecution of each of the second and third counts is doomed to failure and the proceedings should be stayed: Walton v Gardner (1993) 177 CLR 378; Ridgeway v The Queen (1995) 184 CLR 19.

23    There has been considerable doubt expressed by this Court as to whether DPP vNock should be followed in this State, notwithstanding that it was approved in R v Kingswell [1984] 3 NSWLR 273. In Kapeliotis and Mari (1995) 82 A Crim R 300 the appellants appealed against their conviction for conspiracy to import cocaine. The appellants relied upon the reasoning in DPP v Nock to argue that the conspiracy could not have come to fruition because the “supplier” of the drug to be imported turned out to be an under-cover police officer. This Court held that the involvement of the police officer did not render the agreement one that was impossible to fulfil. In dismissing the appeal, the Court stated:

“The final, and related, argument is that, because the police officer never actually intended to provide heroin to the aspiring importers, their object was impossible of achievement and, therefore, they could not be convicted of conspiracy. Reliance was placed on DPP v Nock [1978] AC 979; (1978) 67 Cr App R 116. The Crown does not accept that the facts of the case are truly analogous with those in Nock . In any event, it has been pointed out that Nock has been trenchantly criticised, and not followed, in England: eg Shivpuri [1987] AC 1; (1986) 83 Cr App R 178. See also Sew Hoy [1994] 1 NZLR 257. A cognate decision, on the law of attempt, was not followed by this Court in Mai (1991) 26 NSWLR 371; 60 ACrimR 149. We do not consider that the present conspiracy was, when correctly characterised, a conspiracy to do something that was impossible. It is at least doubtful that Nock represents the present law in this State, but it is not necessary to decide that question.

24    The Court considered the status of DPP v Nock in more detail in Barbouttis. That was an appeal by the Crown against the determination of the trial judge to quash an indictment containing a single count alleging a conspiracy to receive stolen property, being cigarettes. As part of a large-scale police operation into persons dealing in stolen cigarettes, an undercover police officer sought out persons who might have been interested in purchasing cheap cigarettes that he represented as being stolen. The undercover officer made contact with the respondents and, after a number of meetings, they struck a deal as to the price to be paid for the cigarettes. The undercover officer had in his possession a truck with a large number of boxes of cigarettes and the respondents agreed to purchase fifty boxes after they had been inspected by one of the respondents. Contrary to the belief of the respondents, the cigarettes were not stolen but had been lent to the police for the purpose of the operation.

25    The Crown case was that the respondents had entered into an agreement to purchase fifty boxes of cigarettes from those that the police officer had in the truck. It was not suggested that there was any wider agreement beyond the purchase of the specific boxes that had been inspected. The question, which arose for the determination of this Court, was whether, in light of the very narrow factual basis relied upon by the Crown, it was open to it to charge the conspiracy alleged in the indictment.

26    Gleeson CJ, who dissented in the ultimate determination that the appeal should be dismissed, extensively reviewed the authorities since DPP v Nock was decided and the criticisms that had been made of the decision both by other courts and legal commentators. The Chief Justice reached the conclusion that the decision should no longer be followed because the line of reasoning upon which it was based had been discredited. This was because a decision of the House of Lords on attempt, R v Smith [1975] AC 476, which had been affirmed and applied in DPP v Nock had itself subsequently been overturned by their Lordships in R v Shivpuri [1987] 1 AC 1. R v Smith had been rejected in this State in R v Mai (1992) 26 NSWLR 371. The law in other jurisdictions is to similar effect, see R v Sew Hoy [1994] 1 NZLR 257, Maxwell v HM Advocate [1980] SLT 241, 16 Am Jur 2d “Conspiracy” §10, Howard Smith Paper Mills Ltd v The Queen (1957) 8 DLR 2d 449.

27    The members of the Court in Barbouttis who formed the majority and dismissed the Crown’s appeal were Justices Smart and Dunford. Dunford J agreed with the Chief Justice that the status of DPP v Nock as persuasive authority had been undermined. However, his Honour differed from the Chief Justice as to how the agreement entered into by the respondents and the police officer should be characterised. This was a question of fact. The Chief Justice believed that it was an essential element of the agreement that the cigarettes were stolen and, therefore, it was an agreement to commit an unlawful act. Dunford J was of the view that the agreement was to commit the substantive offence of receiving, but that offence could only be made out if the property was in fact stolen. His Honour was of the view that the subject matter of the agreement under consideration was the cigarettes in the truck and the acquisition of that property could not be unlawful, regardless of the state of mind of the participants.

28    The third member of the Court, Smart J, was not persuaded that the law as determined in the attempt cases such as Shivpuri and Mai were necessarily determinative of the issue under the law of conspiracy, although he found them persuasive. But his Honour characterised the conspiracy in a similar manner as Dunford J: an agreement to purchase particular cigarettes that were in fact not stolen. Smart J concluded that, as the substantive offence could not have been committed, the agreement was not an unlawful one.

29    The reasoning in DPP v Nock was relied upon by the appellant in R v Murray [2001] NSWCCA 289 in relation to a conspiracy to commit an armed robbery. However, the Court found it unnecessary to resolve the apparent conflict between the authorities on this issue because it was held that on the facts of the case the issue did not arise.

The decision of the trial judge

30    Judge Hock, after referring to this Court’s decision in Barbouttis, determined that the facts in the case before her could be distinguished from the facts in that decision by reason of the difference in the nature of the conspiracy alleged. Her Honour held:

“Gleeson CJ stated in Barbouttis (supra) at 25:

" It will be necessary to consider the precise form
of the charge against the respondents and the particulars given" .


Thus the starting point in the present case is to analyse what it is the Crown has alleged against the accused. The particulars are identified in Exhibit A and are annexed to the affidavit of the accused's solicitor as Annexure B. On my analysis those particulars do not amount to an agreement to produce methylamphetamine by a specific means or to quote from the Crown submissions, the Crown has not alleged that the agreement was to manufacture methylamphetamine "exclusively from specific chemicals provided by specific individuals at specific places or times”.

As I earlier outlined, the basis for the accused's application is that the alleged conspiracy involved a proposed course of conduct which was at the time impossible of accomplishment. However, as I have found the agreement, at the time it was made was an agreement in general terms to manufacture methylamphetamine, that when it was made it was obviously not impossible to achieve that objective. In other words, the conspiracies alleged here were not conspiracies to do something that was impossible.”

Her Honour was, therefore, not of the view that the prosecution was doomed to fail on the basis of the findings that she made as to the nature of the conspiracies alleged.

31    Judge Hock then went on to consider the other basis put forward for the stay and held:

“In oral submissions a second basis on which the accused sought a stay was advanced, namely that "it was unfair for the Crown now to allege a conspiracy to manufacture when the Crown knew the methodology used made the actual manufacture impossible to achieve". That submission was not supported by any additional evidence. The transcript of the committal proceedings in 96 (Annexure C to the affidavit in support of the Notice of Motion) reveals that on 14 August 1996 the prosecution offered no evidence on "charge case two". In addition there has been a late change to the indictment as earlier outlined. The onus lies on the accused to demonstrate the prejudice he would suffer by the refusal of a stay is such that the trial would be unfair. The scant material relied on does not, in my view, establish such prejudice nor has any particular prejudice been identified.


Her Honour then refused the stay of the two counts on the indictment.

The present application for leave

32    It was submitted on behalf of the applicant that her Honour was in error in her characterisation of the conspiracies as being an agreement “in general terms to manufacture methylamphetamine” rather than an agreement “to produce methylamphetamine by specific means”. This is a finding of fact made by her Honour on the material placed before her, being substantially the particulars contained in the statements of facts. Provided that it was open to her Honour to come to that finding, there is no reason for this Court to intervene.

33    However, I do not believe that the distinction sought to be made by the applicant is a valid one in light of Barbouttis. It is clear that a majority of that Court (Gleeson CJ and Dunford J) were of the opinion that DPP v Nock was no longer persuasive authority, the Chief Justice indicating reasons why the earlier view expressed to the contrary in Kingswell should not be followed. The arguments set forth by the Chief Justice in refusing to apply DPP v Nock are, in my view, compelling and should be followed by this Court. So far as the majority finding of the Court in Barbouttis concerning the particular conspiracy alleged in that case, the present facts can be distinguished for the reason given by Dunford J in distinguishing the facts of that case from DPP v Nock. His Honour stated (at 279):

“If the alleged conspirators in Director of Public Prosecutions v Nock had succeeded in carrying out their agreement to produce cocaine from the mixture they had (which was impossible), they would have committed a substantive criminal offence and similarly, to borrow the example referred to by the Chief Justice, if the two robbers had succeeded in robbing the country branch of the bank (which was impossible because the branch had previously closed down) they also would have committed a substantive criminal offence; but on the other hand, if the appellants in the present case had succeeded in carrying out their agreement by acquiring the cigarettes which were in the back of the truck (which was in fact possible), they would not have committed any substantive criminal offence because the goods were not stolen.

34    In the present case, had the applicant succeeded in carrying out the agreement it is alleged he made with others to manufacture methylamphetamine, he would have committed a substantive offence under the Drug Misuse and Trafficking Act. It is clear that both the Chief Justice and Dunford J (if not Smart J) would have held the charges in the present case to be valid: so, in my view, should this Court.

35    But even if I were prepared to follow DPP v Nock, I would still refuse the application. The issue before her Honour was how each of the conspiracies alleged should be characterised. The answer to this question will largely depend upon the evidence led at the trial. However, the parties and her Honour were content to have the question answered by reference to the particulars contained in the statements of facts tendered on the hearing of the application. The issue in essence, as presented to her Honour, was whether each of the agreements was to manufacture methylamphetamine with chemicals obtained for that purpose (in which case each of the charges was valid) or to use particular chemicals to manufacture methylamphetamine (in which case each of the charges was bad).

36    In respect of the second count the particulars in the statement of facts relevant to that issue were as follows:

1. It is alleged that the accused was involved in a conspiracy to manufacture methylamphetamine at Dooralong.
2. The precursor chemicals used by the accused were provided by Arthur Launt
3. Arthur Launt provided various chemicals as precursors that had been diluted or were different to the labels on the containers.
4. The chemical precursors were sold to David Parker and Craig Haeusler who were involved in the manufacture of methylamphetamine.
5. These chemical precursors were given to the accused who used Richard Simpson as his "cook".
6. The accused organised premises for a "cook" at Dooralong through Damien Drew.
7. The accused arranged for the chemicals supplied by Arthur Launt to be taken to the premises in Dooralong through David Parker and Craig Haeusler.
8. The accused and Richard Simpson went to Dooralong to commence the “cook”. In the car of the accused were a number of chemical containers needed for the manufacture process of methylamphetamine.
9. Along with the chemicals there was glassware and equipment for the manufacture of methylamphetamine.

37    In respect of the third count the relevant particulars were:

16. After the arrest of Knight and Phillips, Craig Haeusler provided 50 kilograms of phenylocetic acid to Richard Simpson and the accused.
17. The accused organised to use the premises at Glenfield, owned by Anthony Brizzi, for a further "cook".
18. Trent Brown gave some glassware to the accused and Richard Simpson for use in the "cook".
19. The accused assisted in the set-up of the "cook" at Glenfield. The accused assisted in the unloading of chemicals and equipment into the garage in Glenfield.
20. The accused then assisted Richard Simpson to set up the "cook".

38    Of course it was not irrelevant that, according to the Crown, the applicant had been involved in an earlier enterprise to manufacture methylamphetamine at Dee Why and Wentworthville with Simpson between December 1995 and January 1996. Nothing is known as to the provenance of the chemicals used on that occasion.

39    In my view it is difficult to draw any conclusion from the particulars as to the characterisation of the conspiracy for the purpose of resolving the issue raised before her Honour. The particulars merely represent what the Crown alleges to be the overt acts identifying the existence of each conspiracy. They do not indicate precisely when it was that any agreement to carry out the particular manufacture was entered into by the applicant. It was open for her Honour to infer that in each case there was a conspiracy involving the applicant to manufacture methylamphetamine using chemicals obtained for that purpose. This is what I understand her Honour to have meant by her finding that there was a “general conspiracy” in respect of each charge.

40    Even if her Honour could not make any positive finding as to the nature of the conspiracy alleged, it did not follow that a stay should be granted. The applicant had the onus of establishing that the prosecution was doomed to fail and that depended upon the applicant showing, in effect, that there was no evidence to support the charges. In my view the applicant failed in that endeavour based upon the material placed before her Honour. Nor would the applicant necessarily succeed by relying upon what potential witnesses have said in statements or in evidence in another court. This is what the applicant has attempted to do in this Court by seeking to supplement the material that was before her Honour. Before a stay can be granted on the basis urged on her Honour, the Court must be satisfied that it is beyond argument that the prosecution cannot succeed on the evidence available to the Crown: R v Smith [1995] 1 VR 10.

41    In my opinion the application should be refused. It has not been shown that her Honour was in error in the findings she made on the material before her. Nor does it appear to me that there is any other basis arising from the matters canvassed before this Court which would justify the exceptional step of staying the proceedings. Many of the matters relied upon both before her Honour and this Court are more appropriately to be determined in the light of the evidence adduced at the end of the Crown case. If at that time the evidence does not support the conspiracy alleged in a count in the indictment, for whatever reason, the applicant can seek a verdict by direction from the trial judge.

42    Nor in my opinion has the applicant succeeded in showing that this Court should grant leave to review her Honour’s finding that the proceedings in respect of the second and third counts were not unfair. To a significant extent the applicant relied upon the argument that the conspiracy charges were not open on the particulars set out in statement of facts in support of this ground. I can see nothing unfair in the Crown proceeding against the applicant on conspiracy charges if, as I believe, it is lawfully open for the Crown to do so. The fact that the drug could not be produced from the chemicals supplied to the applicant may be a mitigating circumstance so far as sentence is concerned insofar as no prohibited drug would have been made available for dissemination into the community. But there is little mitigation of the applicant’s criminality to be found in the fact that, unbeknown to him and despite his best endeavours, he could not carry out his intention to manufacture a prohibited drug.

43    Nor do I see any unfairness warranting a stay of proceedings in the fact that the applicant was initially charged with substantive offences which were later withdrawn. There is no evidence that the applicant ever believed that the prosecution was at an end at that, or any other, time. There is no suggestion that the applicant has suffered any prejudice by reason of the delay or the change in the nature of the offences to be prosecuted. In any event there is no challenge to the proceedings in respect of the first count on the indictment and it seems to me to be no more oppressive to proceed on the second and third counts than to proceed on the first. The only basis upon which the applicant may feel aggrieved is that the Crown did not fall into the same error in his case as it did in the prosecution of Mr McCoy.

44    Other complaints made about the nature of the proceedings, the use of indemnified witnesses and the inconsistency in allegations of the drug to be manufactured between the charges laid against the applicant and those to which Simpson pleaded guilty were not raised before Judge Hock. The applicant should not be allowed to rely upon them in this Court. But in any event there is no merit in any of the complaints made in this Court about the nature of the proceedings presently before the District Court and I am far from satisfied that the proceedings against the applicant are in any way an abuse of process or otherwise justify a permanent stay.

45    I propose that the application for leave to appeal should be refused.

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