R v Mark William Standen

[2011] NSWSC 1038

Supreme Court

New South Wales

Medium Neutral Citation:	R v Mark William Standen [2011] NSWSC 1038
Hearing dates:	3/2/11, 4/2/11, 7/2/11, 8/2/11
Decision date:	17 February 2011
Jurisdiction:	Common Law
Before:	James J
Decision:	Dismiss the application that the second count be stayed as an abuse of process.
Catchwords:	Criminal Law - abuse of process - charge in indictment based on ss 307.11(1) and 11.5 Commonwealth Criminal Code - whether inclusion on same indictment of charge based on s 25.2 of the Drug Misuse and Trafficking Act NSW an abuse of process
Legislation Cited:	Commonwealth Criminal Code 1995 - ss 5.2, 11.5, 11.5(1), 11.5(2)(b), 11.5(2)(c), 11.5(7A), 307.11, 307.11(1), 307.11(1)(a), 307.11(1)(b)(ii), 307.11(1)(c), 307.11(1)(d), 307.11(3), 400.6(1) Drug Misuse and Trafficking Act 1985 - ss 3, 25, 25(2) Commonwealth Crimes Act - ss 19B(1)(c), 42 Crimes Act (NSW) - ss 33, 110 Commonwealth Copyright Act Customs Act - s 233B(1)(b) Criminal Appeal Act - s 5F(3)
Cases Cited:	Pearce v The Queen (1998) 194 CLR 610 Nahlous v R (2010) NSWCCA 58 Blay v The Queen (2006) WASCA 248; 205 FLR 414 R v Stevens (1991) 23 NSWLR 75 R v Campbell (2008) 73 NSWLR 272 Thorn v R (2009) NSWCCA 294 Schembri v R (2010) NSWCCA 149 Kinchela v R (2010) NSWCCA 167 Hinchcliffe v R (2010) NSWCCA 306 R v Slatinec [1999] NSWCCA 2 Environment Protection Authority v Australian Iron & Steel (1992) 28 NSWLR 502 Einfeld v R (2008) 51 MVR 200; (2008) NSWCCA 215 R v Dudko (2002) 132 A Crim R 371
Category:	Interlocutory applications
Parties:	Regina v Mark William Standen
Representation:	T Game SC, H Dhanji SC, S Buchen (Crown) M Ierace SC, G Farmer (Accused) Commonwealth Director of Public Prosecutions (Crown) G Elliot (Accused)
File Number(s):	2009/8922

Judgment

INTRODUCTION

1. The trial of Mark William Standen ("the accused" or "Mr Standen") was fixed to commence before me and a jury on 7 February 2011.

1. On 24 November 2010 the accused had been indicted before me on an indictment containing three counts, to all of which he pleaded not guilty. The counts in the indictment were that the accused:-

1. between 1 January 2006 and 2 June 2008 at Sydney in the State of New south Wales and elsewhere, did conspire with Bakhos Jalalaty and divers others to import a substance, intending to use or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely pseudoephedrine, and the quantity imported being a commercial quantity.

2. between 1 January 2006 and 2 June 2008 at Sydney in the State of new South Wales and elsewhere, did knowingly take part in the supply of an amount of a prohibited drug, to wit 300kgs of pseudoephedrine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug.

3. between 1 January 2006 and 2 June 2008 at Sydney in the State of New South Wales and elsewhere did conspire with Bakhos Jalalaty and divers others to pervert the course of justice in relation to the judicial power of the Commonwealth, by agreeing that Mark Standen would use his knowledge and information obtained by him in order to avoid proceedings being instituted or successfully prosecuted with respect to an offence of importing a substance in contravention of Commonwealth law.

1. The second count in the indictment had been substituted for the second count in an earlier indictment, which had been a charge of conspiring to supply not less than a large commercial quantity of a prohibited drug.

1. The first count in the indictment is based on s 307.11(1) and s 11.5 of the Commonwealth Criminal Code 1995 ("the Code"). Under s 307.11(1) the maximum penalty of imprisonment is imprisonment for 25 years.

1. The second count in the indictment is based on s 25(2) of the Drug Misuse and Trafficking Act 1985 New South Wales. As the amount of the prohibited drug alleged is not less than the large commercial quantity applicable to pseudoephedrine, the maximum penalty of imprisonment is imprisonment for life.

1. The third count in the indictment is based on s 42 of the Commonwealth Crimes Act. The maximum penalty for an offence under s 42 is imprisonment for five years.

1. The prosecution, being a prosecution for two offences under Commonwealth law and one offence under State law, has been brought by the Commonwealth Director of Public Prosecutions.

1. The Crown case against the accused on the three charges is summarised in a statement ("Summary of Crown case"), which runs to 29 pages. Very broadly stated, the Crown alleges that the accused, who during the period within which the offences were allegedly committed was the Assistant Director Investigations of the New South Wales Crime Commission, conspired with Bakhos Jalalaty and others to import a commercial quantity of pseudoephedrine, a precursor used in the manufacture of illicit drugs (count 1); the accused knowingly took part in an attempt by Bakhos Jalalaty to possess a large commercial quantity of pseudoephedrine for the purposes of supply, being the same amount of pseudoephedrine as is referred to in count 1 (count 2); and the accused conspired with Jalalaty and others that he would use knowledge and information obtained by him in the course of his career in law enforcement to prevent criminal proceedings being instituted or successfully prosecuted with respect to the importing of the pseudoephedrine (count 3).

1. The Crown alleges that the pseudoephedrine to be imported was to be concealed in a shipment of rice. A shipment of rice arrived in Australia but did not contain any pseudoephedrine. No pseudoephedrine was actually imported and Jalalaty did not obtain possession of any pseudoephedrine.

1. It is apparent that, at a very early stage, the accused, Jalalaty, a man named James Kinch who is alleged by the Crown to have been a co-conspirator, and other persons came under suspicion and covert surveillance by the authorities. Warrants for listening devices and telephone intercepts were obtained and a large number of conversations and in particular conversations between the accused and Jalalaty were recorded or intercepted and a large number of emails were accessed.

1. Bakhos Jalalaty, who is referred to in counts 1 and 3 in the indictment, pleaded guilty before me on 17 May 2010 to a single charge which closely corresponded to the charge in count 1 of the indictment against the accused. The Crown accepted Jalalaty's plea of guilty to that charge in full discharge of all charges against him. On 20 December 2010 I passed sentence on Jalalaty for the offence to which he had pleaded guilty.

The accused's application generally

1. By a Notice of Motion dated 2 February 2011 the accused sought orders that each of counts 2 and 3 in the indictment against him be stayed as an abuse of process. No order was sought in relation to count 1.

1. The application was supported by an affidavit by the accused's solicitor, to which were annexed inter alia communications from the Commonwealth Director of Public Prosecutions, including the summary of the Crown case and particulars of the second count in the indictment.

1. The accused's application came before me for hearing on 3 February 2011. I received extensive written submissions from both counsel for the accused and counsel for the Crown. On 3 February 2011 I was informed that, whichever way I determined the application for a stay on count 2, it was likely that there would be an appeal or an application for leave to appeal from my decision. In these circumstances and by consent, I vacated the trial date of 7 February.

1. Oral argument on the application continued over three days. On the morning of the fourth day of the hearing I was informed by counsel for the accused that the application that the third count be stayed as an abuse of process was withdrawn. I note that the basis on which it had been submitted that the third count was an abuse of process was different from the basis on which it was submitted that the second count was an abuse of process.

1. As I remarked in court on 8 February, the time which had been spent in the making of submissions on count 3 had not been wasted. As a result of hearing the Crown's submissions, I as the probable trial judge and the accused's legal representatives have acquired a much fuller understanding of how the Crown puts its case on count 3.

1. As a result of the withdrawal of the application to have count 3 stayed, I need only deal in this judgment with the application that count 2 be stayed as an abuse of process.

The accused's application that the second count in the indictment be stayed as an abuse of process.

1. I already set out the terms of the second count in the indictment. The count is based on that part of s 25(2) of the Drug Misuse and Trafficking Act which provides that "a person ... who knowingly takes part in the supply of an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence" and that part of the extended definition of "supply" in s 3 of the Act, which provides that " supply includes .... having in possession for supply ... or ... attempting any of those acts or things".

1. Paragraph 3 of the summary of the Crown case is in the following terms:-

3. In respect of the second count, the Crown case is that the accused knowingly took part in the supply of a large commercial quantity of a prohibited drug by Jalalaty. The extended definition in s 3, Drug Misuse and Trafficking Act 1985 is relied on. In particular the Crown case is that Jalalaty supplied a large commercial quantity of a prohibited drug in that he attempted to possess a large commercial quantity of a prohibited drug for the purposes of supply. In order to prove the second count the Crown must prove:

i. Jalalaty supplied a large commercial quantity of a prohibited drug in that:

a. Jalalaty attempted;

b. to possess;

c. a large commercial quantity of a prohibited drug

d. for the purposes of supply;

ii The accused knowingly took part in Jalalaty's supply of a large commercial quantity of a prohibited drug in that he:

a. knowingly took or participated in any step, or caused any step to be taken in the process of that supply (ie Jalalaty's attempt to possess a large commercial quantity for the purposes of supply); or

b. arranged finance for any step in the process of that supply.

1. Paragraph 2 of the summary of the Crown case, which relates to count 1 in the indictment, is also relevant to the present application. Paragraph 2 is in the following terms:-

2. Count 1 alleges an offence against section 307.11(1) and section 11.5 of the Criminal Code 1995 (Cth). In order to prove the first count the Crown must prove (combining the requirements of s 11.5 and s 307.11):

i. that the accused intentionally, in the sense that he meant to (s 5.2), entered into an agreement with at least one other person (s 11.5(1));

ii. the accused and at least one other party to the agreement, intended that, pursuant to the agreement, a substance would be imported (s 307.11(1)(a)); s 11.5(2)(b) and s 5.2);

iii. the accused and at least one other party to the agreement knew or believed (and thereby intended) the substance would be a border controlled precursor (s 11.5(2)(b) and s 5.2, s 307.11(1)(c));

iv. the accused and at least one other party to the agreement believed the substance would be used to manufacture a controlled drug by some other person or persons (s 11.5(2)(b) and s 5.2, s 307.11(1)(b)(ii);

v. the agreement related to a commercial quantity (s 307.11(1)(d); (absolute liability applies to this element - s 307.11(3); s 11.5(7A)); and

vi. the accused or another party to the conspiracy committed at least one overt act pursuant to the agreement (s 11.5(2)(c)).

1. The Crown has furnished particulars of count 2. The amended particulars, a copy of which is annexure F to the accused's solicitor's affidavit, are in the following terms. ("DMTA" is an abbreviation for Drug Misuse and Trafficking Act "LD" is an abbreviation for listening device and "TI" is an abbreviation for telephone intercept):

The Crown alleges that the accused knowingly took part in the supply of a large commercial quantity of a prohibited drug. The supply relied upon is the attempt by Jalalaty to possess a prohibited drug for the purpose of supply.

It is sufficient to establish that the accused participated in any step, or caused any step to be taken, in the process of that supply or arranged finance for any such step in the process of that supply in order to establish the offence of knowingly take part in the supply contrary to s 25 of the DMTA.

The accused participated in a number of steps, or caused steps to be taken, in the process of the supply by participating in:

- the planning of the means by which Jalalaty would come into possession of the prohibited drug (inter alia by travelling to Dubai in January 2007 to meet with Kinch and Jalalaty);

- the supervising of Jalalaty on behalf of Kinch, and the facilitating of the relationship between Jalalaty and Kinch in order to assist Jalalaty possess the prohibited drug for the purposes of supply. This role is evidenced, inter alia, by:

the introduction of Jalalaty to Kinch;

the assistance given to Jalalaty in recovering the money given to him by Kinch (being money required by Jalalaty to maintain an importing business);

facilitating communication between Jalalaty and Kinch (see, for example, TI's of 8/2/08, 4/3/08, 1/4/08; emails of 20/2/08, 26/5/08, 28/5/08);

supervising Jalalaty and reassuring Kinch in relation to Jalalaty (see emails of 23/8/07, 24/8/07, 2/3/08, 1/4/08, 31/5/08);

- advising Jalalaty in order to assist Jalalaty in his attempt to possess the prohibited drug for the purpose of supply, by advising him of, inter alia:

investigative techniques used by Customs and other federal authorities; aspects of the documentation which may draw the attention of the authorities such as receiving rice from a hosiery company or paying more for rice than it could be sold for; the manner in which payment could be explained to any potential investigators; the manner in which to respond to any potential investigation; the method to be employed in order to disguise communications with Kinch and the need to destroy his computer in the event that "anything ever went wrong" (see LD of 15/9/07, 30/4/08); the need to conduct business as normal in the face of delays in getting the container (see LD of 13/5/08);

the need to ensure that the drug is removed from the rice bags in order to ensure it cannot be traced back to Jalalaty after the actual supply of the drug (see LD of 23/11/07);

the importance of not speaking near the container in which the drugs were to be secreted (at which time Jalalaty was to be in possession of the drug for the purposes of supply) due to the possibility it may contain a listening device;

the importance of cleaning out the warehouse after the actual supply of the drugs due to the possibility of detection of microscopic quantities of the drug which may have (sic);

the unlikelihood of detection by customs (see LD 11/3/08, 9/4/08);

the need to move the prohibited drug from Jalalaty's warehouse (see email Kinch/Jalalaty 31/5/08).

- obtaining information to pass on to Jalalaty and/or Kinch to assist in Jalalaty coming into possession of the prohibited drug for the purposes of supply, in particular:

attending the meeting of 21/2/08 and seeking information in relation to Customs' processes;

making enquiries with Gavin Whalebone on 30/4/10, in an attempt to ascertain whether there is any Customs interest in the container and passing this information to Jalalaty;

relaying his belief in the lack of interest in the container to Kinch (see emails Jalalaty/Kinch 14/5/08 and 20/5/08);

making enquiries of Stephen Mercer on 26/5/08 in relation to Customs interest in current importations (and reassuring Kinch - see email Kinch/Jalalaty of 27/5/08).

- disclosing to Stephen Mercer of Customs information in relation to a possible shipment of MDMA in bath salts without revealing the importation in the rice (on 12/5/08);

- reassuring Jalalaty by advising him that he has Customs looking for bath salts from China - see LD of 24/5/08;

- arranging finance by facilitating the relationship between Jalalaty to Kinch;

- agreeing to advise Jalalaty and/or Kinch of any interest in the container by Customs, the Police or other relevant authority.

The Principal Submissions of the parties

The Accused

1. It was not submitted by counsel for the accused that count 2, considered by itself, would have been an abuse of process. However, it was submitted that the inclusion in the indictment of count 2, when the indictment already contained count 1, was an abuse of process.

1. It was submitted that the criminality alleged against the accused was that he had used the special skills, knowledge and contacts he had acquired as a law enforcement officer to assist Jalalaty to import pseudoephedrine into Australia. This alleged criminality was captured by count 1 in the indictment. There was no separate criminality on the part of the accused, which would fall within count 2 but would not fall within count 1. If the accused was found guilty of the offence charged in count 1, the sentence for that offence would be capable of reflecting all of the accused's criminality.

1. In response to submissions made by the Crown that there was some separate criminality of the accused which would fall only within count 2, counsel for the accused submitted that any such separate criminality was slight and did not detract from his submissions.

1. Counsel for the accused submitted that the present case should be distinguished from other cases in which both an offence of importing drugs into Australia and an offence of supplying the same drugs within Australia have been charged, but in which the offender had had some actual involvement in the supply of drugs within Australia.

1. It was submitted by counsel for the accused, and not disputed by counsel for the Crown, that the same body of evidence would be admissible on both charges.

1. Counsel for the accused pointed to the different maximum penalties for the two offences, imprisonment for 25 years in the case of the offence charged in count 1 and imprisonment for life in the case of the offence charged in count 2, and to the circumstance that, if a life sentence is imposed in New South Wales, the prisoner has no prospect of being released on parole.

1. In support of his contention that the inclusion in the indictment of count 2 was an abuse of process counsel for the accused referred to a number of cases, including Pearce v the Queen (1998) 194 CLR 610 especially at 620-621 (29-31) and 629 (67); Nahlous v R (2010) NSWCCA 58; some other New South Wales cases having some connection with Nahlous ; and Blay v the Queen (2006) WASCA 248; 205 FLR 414. I will consider these cases later in this judgment.

The Crown

1. It was pointed out by counsel for the Crown that there had not been any suggestion that there was any inconsistency between the Commonwealth and the State legislation and it was submitted on behalf of the Crown that each jurisdiction, that is the Commonwealth and the State of New South Wales, was entitled to have its legislation enforced.

1. The Crown submitted that the difference in the maximum penalties for the two offences was a factor favouring the Crown, not the applicant. It would not be oppressive for the accused to be exposed to the heavier maximum penalty, which the New South Wales legislature had considered appropriate for the State offence,

1. It was submitted that, while there was undoubtedly an overlap between what the Crown relied on as overt acts in furtherance of the conspiracy alleged in count 1 and the elements of the offence charged in count 2, the elements of the two offences were different.

1. It was contended that the Commonwealth legislation and the New South Wales legislation have different purposes. Counsel referred to R v Stevens (1991) 23 NSWLR 75.

1. Counsel for the Crown made submissions about the authorities relied on by counsel for the accused. I will consider these submissions later in this judgment.

1. Counsel for the Crown, while accepting that most of the alleged conduct on the part of the accused which would fall within count 2 would also fall within count 1, submitted that there was evidence of some conduct on the part of the accused which would fall only within count 2. I will consider the Crown's submissions and counsel for the accused's replies to those submissions later in this judgment.

Whether there is separate alleged criminality falling only within count 2

1. As I have just indicated, the Crown, while accepting that most of the alleged criminal conduct on the part of the accused which would fall within count 2 would also fall within count 1, submitted that there was evidence of some criminal conduct on the part of the accused which would fall only within count 2.

1. The offence charged in count 1 of the indictment is a conspiracy to import a substance into Australia. It was submitted by counsel for the Crown, and not disputed by counsel for the accused, that in R v Campbell (2008) 73 NSWLR 272, which was an appeal from a conviction on a charge under s 307.11 of the Code , it had been decided by the Court of Criminal Appeal that the physical element of "imports" in s 307.11 of the Code occurs when border controlled drugs and precursors arrive in Australia from abroad and are delivered to a point which results in the goods remaining in Australia. See particularly at paragraph 128 of Spigelman CJ's judgment (page 294).

1. In paragraph 128 of his judgment the Chief Justice added that "that" (the physical element of "imports") "occurred when the goods were picked up by the appellant's agent or, at the latest, when the container arrived at her premises and before it was unpacked".

1. Counsel for the Crown submitted, and counsel for the accused did not dispute, that, if the decision in Campbell was applied in the present case, the physical element of importing in the offence charged in count 1 had been completed, when on 28 May 2008 a container containing rice but no pseudoephedrine was delivered to a warehouse used by Jalalaty.

1. It was then submitted by counsel for the Crown that there were a number of recorded conversations between the accused and Jalalaty, in which they discussed and the accused gave advice to Jalalaty about what steps should be taken after the container believed by them to contain both rice and pseudoephedrine had been delivered to Jalalaty's premises, that is after the importing of the container had been completed.

1. It was immaterial, counsel for the Crown submitted, that all of these conversations, with one exception, had occurred before the container was delivered to Jalalaty's premises. What was important was that the accused and Jalalaty were discussing, and the accused was advising Jalalaty about, what steps should be taken after the container was delivered.

1. It was submitted that the accused's conduct in participating in these conversations was conduct which would not fall within count 1 but which would fall within count 2. Any conduct by the accused up to the time of his arrest on 2 June 2008 was capable of amounting to knowingly taking part in the supply of pseudoephedrine as alleged in count 2.

1. Counsel for the Crown pointed in particular to parts of five conversations between the accused and Jalalaty which were recorded by listening devices. I will consider these conversations individually by reference to transcripts of the conversations which have been prepared.

1. Part of conversation on 25 October 2007

BJ: if he buys if the product doesn't arrive and the other stuff comes he's gonna drain my cash flow cause the next two containers are sixty something thousand dollars US that's like eighty thousand Australian then that's it

MS: mm that's (indistinct) yeah

BJ: but if they're coming I can sell em and rebuy em sell em and rebuy and I'm only gonna lose about I can sell the container for twenty thousand so the container cost me twenty twenty six thousand cause they've charged me eight dollars a bag

MS: yeah but in but in due course prices

BJ: doesn't matter

MS: (indistinct) know everybody prices come down

BJ: that's what I said

MS: get market share

BJ: that's what I said but I've got all this paper work I said you know I think your price is too high and ah I'm, gonna tell you what the price is and I sent a fax back to them saying and I've kept a copy and I put faxed on this day

MS: yeah

BJ: gonna file that (indistinct)

MS: ok

BJ: so that means you know and when it when it comes I'm not even gonna my boys will be unloading it as per normal

MS: yep

BJ: stacking it as per normal palletising it as per normal and how they pick it up is not my problem

MS: yep ok (indistinct)

1. I accept that this part of the conversation is open to the interpretation favourable to the Crown that Jalalaty was talking about selling the container (of rice) and the price at which he would sell, saying that his employees would be unloading the container "as per normal", that the accused concurred in what Jalalaty was proposing, and that the accused suggested that a loss on resale of the container could be explained as an attempt to "get market share".

1. Part of conversation on 23 November 2007

MS: and then when you get it

BJ: yep

MS: who comes to you

BJ: no-one I pick it up

MS: no the next one

BJ: oh the baldy guy my Portuguese mate

MS: only him

BJ: only him he comes and picks up those thirty bags takes three back to him to empty bags and I destroy the bags so the bags aren't out there

MS: when he takes the bags away are the bags marked with something that they can link to your shipment

BJ: they're inside the rice bags he takes the bags he takes the

MS: does he take the rice bags too

BJ: yeah and then when he shows them to the people

MS: ok let's say someone grabs yeah go on when he shows them to the people do the other people see the rice bags

BJ: yeah

MS: ah that's

BJ: and then the then the he reckons they're not to be touched that they take their products out give us back the empty bags he brings them back to me and I destroy them

MS: it's just that if they're a local person sees the rice bags and a local person gets caught

BJ: yep

MS: they say how did you get this say I don't know it came in rice bags ooh rice bags hmm

BJ: (indistinct) should they take it

MS: hey it's not good when people know it comes in rice

BJ: but he told me I asked him that question he said they need to see we haven't mucked 'em round because they wanna

MS: but how do the people know that it's come in rice in the first place

BJ: they don't

MS: if they're locals like a no local person should know

BJ: what he can what he can do the Portuguese guy is actually do it in my factory take them out take out the leave the bags there that would be better

MS: that's what I'm saying what he could do when you're not there what what should happen is he should only take the inner bags he shouldn't take rice bags so people can say oh I recognise that rice bag as soon as they as soon as they link it to rice bags they start checking on rice

BJ: all rice

MS: then you'll stand out like a sore thumb

BJ: yep I got I got nothing left at the factory like I sold them at market price they charged me seven dollars a bag I sold them for five dollars a bag

MS: yeah

BJ: too expensive

MS: see you don't want anyone I don't reckon you want anyone seeing the rice when you see the bald bloke you ought to say buddy if you take this away and something goes wrong you know why can't you just take something away that can't be traced back to here

BJ: I like him I like him he's good

MS: I reckon

BJ: (indistinct)

MS: you should say to him

BJ: (indistinct)

MS: why can't whatever you take away from my factory why can't you take it so that it can't be traced back here so if something goes wrong no-one knows

BJ: can I invoice for cash sale cash sale

MS: yeah you could do that

BJ: twenty kilos of rice paid thank you

MS: you can do that

BJ: give him an invoice

MS: do that but just something like that so that you're prepared

BJ: he can probably get someone probably get them to send me a fax to say we've got a customer for you in Sydney looking for rice (indistinct) I'll do it all I'll do the whole they'll help me sell the product cause the customer's here and he's got a (indistinct) they'll come they'll come at the door just ring it I don't know they told me they're familiar with it (indistinct) who are the others

1. I accept that this part of the conversation is open to the interpretation favourable to the Crown that the accused was giving advice to Jalalaty that the bags taken away by someone from Jalalaty should not be capable of being linked to the shipment of rice to Jalalaty and that in answer to a question from Jalalaty the accused said that a course Jalalaty could adopt would be to render an invoice for a cash sale.

1. Part of a conversation on 21 May 2008

BJ: ....like it would be all over the news

MS: they haven't it's out it's out of customs finished customs well it's not finished but I mean yeh world news ah la la la la

BJ: but the thing it's not a finished product twenty (indistinct)

MS: oh

BJ: yeah twenty three

MS: ah no so these are like chemicals and things like um crystal

BJ: yeah looks like rice

MS: okay

BJ: the product itself won't do anything to anyone like you opened it won't do anything when you mix it with something else then it becomes something else

MS: they're making something whatever we don't know

BJ: yeah they've, they've made it my warehouse the guy was there but he's finished before they make it we get paid and I will make sure that I remove the bags transfer it into a plain brown box tape them up and hand them over to my Portuguese mate and I get them back and I burn them so there is no trace of that bag wants me to said I said look I'd rather do that cause they know I'm in control

MS: mm then his bald mate must be close

BJ: well he can't cause he said to me when he (indistinct) sit on it for two weeks take a holiday I don't care what you do just go away enjoy don't do anything leave it there for a couple of weeks let him get his mate over here find an apartment all settled you (indistinct) okay we're sweet my work I can do in one day and I can go there in about four hours

MS: without helpers

BJ: on my own I can do it in about four hours

MS: don't want to use helpers you know

BJ: no no on my own no one do anything I've half (indistinct) closed in a day no problem I can do it myself

MS: helpers is where thing go wrong you know

BJ: yeah no I don't involve anybody four hours but the way he had a go at me yesterday I could believe it I think he was very frustrated

MS: stressed yeah

BJ: he was frus he was saying the fuck word you know before that the email before that he said that doing some I've got him I got him the um the housing in Pakistan I'm now getting the patent I'm getting the intellectual properties worldwide for that it's a hundred percent secure we've got those those three projects so its all going along fine just this one fucking piece of paper

MS: were you getting along alright over there

BJ: fantastic like a house on fire we get on really good no problems at all I spent most of my time with him he had to do some things during the day I said look he gave me a phone he gave me a phone with a thing in it he said I knew a couple of things I had it in my pocket brr yep um can you come over I was with Julian yet give me (indistinct) I said I'd be an hour hour and a half finished up with Julian a few things we went and found a warehouse set up a company ah you know I said Julian's my sponsor so now I've got my own company so I'll send the building materials from here to me I'll be there when the container arrives it gets delivered to my warehouse I open the door I put the stock in I close the door the money's inside and I said to B52 you be there as well fuck anybody else you want in there the container arrives closed we cut this bastard open and as I sat there look what you'll find next that way I'm in control from start to finish when it leaves here I know it will take four weeks I leave on the third week get there say three or four days before it arrives when it arrives it gets delivered to my warehouse which is self standing no one else has got access to it no one else is in there just me its empty by the time I stick the building materials in there done solar panels stick it in there and that's my warehouse and once the goods are inside the warehouse you shut the door and he can come and take the boxes away no problems

1. I accept that this part of the conversation is open to the interpretation favourable to the Crown that the accused and Jalalaty were discussing what was to happen to the pseudoephedrine after it had arrived at Jalalaty's warehouse and what Jalalaty would have to do before handing over the drug "to my Portuguese mate", that the accused advised Jalalaty not to use "helpers" because "helpers is where things go wrong" and Jalalaty said that he did not intend to use helpers.

1. Part of the conversation on 27 May 2008

MS: so you just put it there like normal and then soon as you've got it unload it you ring someone and say you wanna buy it

BJ: well will this guy take the whole thing and I give him the lot including the I hope so that's good cause as he told the cops (indistinct)

MS: yeah provided he's like he's not a real rice buyer obviously he's the he's the buyer is he

BJ: no I don't know who he is

MS: well see could be could be a baddie for the other side you wouldn't wanna sell it to them um

BJ: he might be just a rice buyer rice buyer

MS: that's ok well ring him and put him off just say are you interested in that all that stuff say okay um alright well um I've got so many pallets totally full now I've got eighteen tonnes

BJ: yep

MS: if you want to take all that cause otherwise I'll ring some others um alright well um I'm just unloading it today but I'm I gotta go away for a week or I gotta um I'm (indistinct) I'll contact you in a week or so you can buy the lot just tell him you can buy the lot

BJ: supposed to be contacted when it's out

MS: I'd be doing bit by bit very carefully

BJ: yeah

MS: now over the next see there's nothing to happen now all you got to do is get it to your place

BJ: yeah

MS: then business as normal in the meantime I'll sniff as much as I can safely sniff

1. I accept that this part of the conversation is open to the interpretation favourable to the Crown that the accused was giving Jalalaty advice about unloading the container and what he should say on the telephone to a potential buyer. The accused says "I'll sniff as much as I can safely sniff", which is open to the interpretation that the accused was saying that, so far as he discretely could, he would endeavour to find out through his contacts whether there was any interest in the shipment on the part of the authorities.

1. Part of a conversation on 29 May 2008

BJ: yes no that's what I thought (indistinct) sixteen whatever it is but they're all the six there every bag was there but they couldn't have made new bags cause they had my name on them each bag has my name on it has all bj's fine foods on every bag so that the bag's are everything and (indistinct) the bags it doesn't matter what they do you can't tell you cannot tell the one (indistinct) by squeezing it trying to feel it (indistinct)

MS: rice we got rice (indistinct)

BJ: (indistinct) you could

MS: rice we got rice

BJ: exactly so I'm a I'm a lot more comfortable now

MS: um your mate has still said (indistinct) do not unload

BJ: how long for how long we (indistinct)

MS: (indistinct)

BJ: if you haven't heard anything then I reckon I reckon (indistinct)

MS: he hasn't even responded to the latest (indistinct)

BJ: nup nothing no one has to read it to work things out (indistinct) B52 wants me

MS: wants you to

BJ: to do the rice he wants me to bring in what do ya a chain loader l l don't mind doing it that way

MS: you're in control of who knows

BJ: I get the bags and burn them (indistinct) I have no problems with that he wants me to weigh everything

MS: don't want them don't want them to go anywhere

BJ: that's right

MS: (indistinct)

BJ: that's right gotta put in forty (indistinct) back on eighty liner bags I've gotta put a double liner in them then got to the next one bag one bag lined bag oh yeah (indistinct) is that right yep for me (indistinct) and I'll fold them up tape the inside tape the outside take the forty boxes ready and I'll meet my girlfriend with the Portuguese boy who's gonna meet me somewhere and and ah if I don't anyway I I don't want to (indistinct) but I've heard I don't care I don't care

MS: have you rung that bloke (indistinct) it's available

BJ: ah I rung him and he's still here still (indistinct) the the guy can't get can't get rid of all of these pallets yet so I'll therefore go to the one hit

MS: it's all just packed up and left

BJ: no it's all in twenty four pallets they they um (indistinct) did that

MS: as usual my problems already start just before I left

BJ: you having (indistinct)

1. This conversation occurred after the physical element of the importing of the container had been completed. In this conversation the accused and Jalalaty were discussing what should now be done.

1. Counsel for the accused submitted that in these conversations very little advice was actually given by the accused; that for the most part Jalalaty was informing the accused of what Jalalaty intended to do; that to the extent that the accused gave advice to Jalalaty his advice was otiose, because Jalalaty had independently already formed the same view; and that some of the conversations and particularly the conversation of 29 May 2008 were difficult to make sense of, much of what the accused had said not being transcribed and being simply described as "indistinct".

1. There is some force in the submissions made by counsel for the accused. Nevertheless, I conclude that these parts of conversations to which I was referred contain some evidence of conduct on the part of the accused which would fall within count 2 but which would not fall within count 1. Even where Jalalaty is describing what Jalalaty proposed to do, it would be open to a jury to consider that Jalalaty was seeking the accused's opinion about what Jalalaty was proposing to do and that the accused was listening to Jalalaty on the basis that his advice was being sought.

1. In transcripts of conversations between the accused and Jalalaty there is some evidence of a number of the particulars in which the Crown alleges the accused advised Jalalaty about what should happen after the container was delivered, including the need to ensure that the drug was removed from the rice bags in order to ensure that it could not be traced back to Jalalaty; the importance of not speaking near the container in which the drugs were to be secreted due to the possibility that the container might contain a listening device; the importance of cleaning out the warehouse after the actual supply of the drugs due to the possibility of detection of microscopic quantities of the drug; and the need to move the drug from Jalalaty's warehouse.

The Authorities

1. I will turn now to a consideration of some of the authorities which were referred to in the course of submissions.

Pearce v The Queen

Both counsel referred to parts of the judgments in Pearce as supporting their submissions. In Pearce the indictment which had been presented against the appellant included two charges based on the same incident, a charge under s 33 of the Crimes Act as it then stood of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, and a charge under s 110 of the Crimes Act of breaking and entering a dwelling house and inflicting grievous bodily harm. Accordingly, inflicting grievous bodily harm was an element of both of the offences and the same conduct was relied on as establishing that element in the case of both offences.

1. An application for a stay on the ground that the indictment was an abuse of process was refused by the trial judge. Pearce then pleaded guilty to a number of offences, including those charged under s 33 and s 110. For the offences under s 33 and s 110 Pearce was sentenced to terms of imprisonment to be served fully concurrently. An appeal against the refusal of the trial judge to grant a stay and an application for leave to appeal against sentence were dismissed by the Court of Criminal Appeal.

1. On an appeal to the High Court the High Court dismissed the appeal against conviction but set aside the order of the Court of Criminal Appeal dismissing Pearce's application for leave to appeal against sentence and remitted the matter to the Court of Criminal Appeal to be dealt with in accordance with the High Court's judgments.

1. A number of matters were discussed in the judgments of the High Court in Pearce , some of which are not relevant to the present application. The parts of the judgment particularly referred to by counsel for the accused were paragraphs 29, 30 and 31 in the joint judgment of McHugh, Hayne and Callinan JJ and part of paragraph 67 in the judgment of Gummow J. Counsel for the Crown referred particularly to paragraphs 11, 12 and 13 in the joint judgment. I will now set out these paragraphs.

11 First, as the range of crimes and punishments for crime has expanded, it has become apparent that a single series of events can give rise to several different criminal offences to which different penalties attach.

12 Secondly, it has been recognised that an offender should be punished only for the offence with which he or she was charged, and not for some offence or version of the offence not charged.

13 Thirdly, and as a corollary to the second matter we have mentioned, prosecuting authorities have sought to frame charges against an accused that will reflect all of that accused's criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of that conduct.

..................................................................................

29 Confining the availability of the plea in bar in this way does not deny the existence of the inherent powers of a court to prevent abuse of its process. That there may be cases in which the repeated prosecution of an offender in circumstances where that offender has no plea in bar available would be an abuse of process is illustrated by Rogers v The Queen . (1994) 181 CLR 251.

30 The decision about what charges should be laid and prosecuted is for the prosecution ( Maxwell v The Queen (1996) 184 CLR 501 at 512, per Dawson and McHugh JJ; at 534, per Gaudron and Gummow JJ). Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily.

31 There was, however, no abuse of process in charging this appellant with both counts 9 and 10. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose; cf Williams v Spautz (1992) 174 CLR 509. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni (1981) 147 CLR 38, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately.

1. In part of paragraph 67 of his judgment Gummow J said at 629 (67):-

"It should be accepted that the inclusion of separate counts for what in substance, if not entirely in form, is the same offence may be an abuse of process".

1. Counsel for the accused relied particularly on the statements in the joint judgment affirming the inherent power of a court to prevent abuse of its process and that prosecuting authorities should not multiply charges unnecessarily and the statement in Gummow J's judgment which I have quoted.

1. I observe in regard to paragraph 29 of the joint judgment that the second sentence is expressed tentatively ("there may be cases") and that what their Honours seem especially to have had in mind was "repeated" prosecution of an offender, which is likely to be more oppressive than the simultaneous bringing of more than one charge. However, I accept that Pearce itself was a case of a simultaneous bringing of more than one charge and the judges who delivered the joint judgment considered the question of whether, in the circumstances of the particular case, the simultaneous charging of Pearce with both offences was an abuse of process.

Nahlous v R

1. In Nahlous the offender was sentenced for a number of offences under the Commonwealth Copyright Act of selling or offering to sell unauthorised decoders, that is devices enabling the obtaining of pay television services without the payment of a subscription fee to a service provider.

1. One such offence was the selling on 6 November 2008 of 50 decoders to an undercover police officer, from whom Nahlous received payment of $15,000 in cash. Nahlous placed the $15,000 in his vehicle but he was then arrested and the $15,000 was recovered.

1. Nahlous was charged with, and after pleas of guilty was sentenced for, the offences under the Copyright Act and for an offence under s 400.6(1) of the Code of dealing with money which was, and was believed by Nahlous to be, the proceeds of crime. For the offence of selling 50 decoders on 6 November 2008 Nahlous was sentenced to a term of imprisonment of 6 months and for the offence under the Code he was sentenced to a term of imprisonment of 20 months.

1. Nahlous appealed only against the sentence imposed for the Code offence. The Court of Criminal Appeal disposed of the appeal by dismissing the Code offence pursuant to s 19B(1) (c) of the Commonwealth Crimes Act .

1. I have taken into account all of the judgment of the Court of Criminal Appeal in Nahlous . However, I will expressly set out in this judgment only some parts.

11 In effect the complaint by the applicant was that the gravamen of his criminality was in the sale of the decoders not in the receipt of $15,000. It was submitted that the receipt of the money was "part and parcel" of the sale of the decoders......... It was submitted that the Judge failed to give any reason explaining why the criminality of having $15,000 received from the sale of the decoders was so much more serious than the sale itself so that it could justify a sentence that was over three times longer than the sentence imposed for the sale.

13 We believe that there is considerable merit in the complaints made by the applicant. However, they do not go far enough. In our view the whole sentencing exercise miscarried principally because the applicant should never have been charged with the Code offence. Had he sought to have that charge permanently stayed as an abuse of process we cannot see how the application could have been refused.

1. In paragraphs 14 and 15 of its judgment the Court of Criminal Appeal referred to Thorn v R (2009) NSWCCA 294, in which the court had expressed concern about the charging of a person already charged with taxation fraud with an offence under s 400.6(1) of the Code involving dealing with the money obtained by the fraud.

1. The judgment of the Court of Criminal Appeal in Nahlous continued:-

16 In the present case we can see no justification whatever for the applicant being charged with the Code offence. In relation to the 50 decoders the criminality was in the sale as a result of which the owners of the services were deprived of their financial entitlement to rental charges for their use. The concept of a "sale" necessarily involves the seller obtaining some financial gain from the transaction. The receipt of the money was merely an element of the offence under s 135ASB(1).

17 We appreciate that a person can by the one act commit two offences and, where the two offences address different aspects of the criminal conduct, there is nothing wrong with prosecuting the two offences or, subject to the principle of totality, with imposing separate sentences for the two offences. But in our view the receipt of the money as a result of the sale did not result in a separate act of criminality that warranted a separate charge and a separate penalty. We do not believe that there is anything in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 that conflicts with the view that we have taken as to the inappropriateness of the prosecution of the Code offence as well as the decoder offence; see particularly at [31]. We believe that in the circumstances of this case it was oppressive to charge the applicant with both the sale of the decoders and the receipt of the money as a result of the sale. That is because in our view the offence of sale encompassed the criminality of possessing the proceeds of the sale.

18 The Crown at the hearing of the appeal sought to argue that the two offences were aimed at different policies. The Code offence was intended to punish the possession of the proceeds of crime however they are obtained and the fact that the proceeds of the crime were in the public domain and could be dealt with or passed on to others. We accept that this may be a justification for the prosecution of such an offence particularly where the source of the funds is unknown, or where the proceeds were derived from the criminal act of another person or where the person is in some way dealing with the proceeds in order to hide their source or change the nature of the proceeds. But we cannot believe that it was the intention of Parliament that the offence should extend to the facts of the present case notwithstanding the width of the offence under the Code .

19 It is in our opinion not irrelevant that the Code offence carries twice the maximum penalty prescribed for the sale offence, which on any view was the principal act of criminality. It was never the intention of the investigators that the applicant should keep the money he obtained from the sale. If the police officer intended at the time of handing over the money also to charge the applicant with an offence relating to the possession of the money, it was a clear case of entrapment. The applicant could have been arrested before the money was handed over and charged with an offence under s 135ASC(1) of offering to sell the 50 decoders. The maximum penalties for the offence of offering to sell a decoder and the offence of selling a decoder are the same. We do not see in the circumstances of this case how the actual payment of the $15,000 to the applicant impacted upon his criminality in offering to sell the decoders to the undercover police officer. We can see no forensic purpose in handing over the money other than to secure evidence of the sale.

1. By way of seeking to apply what was said by the Court of Criminal Appeal in Nahlous to the present case, counsel for the accused submitted that the alleged acts of the accused in furtherance of the conspiracy charge in count 1 "necessarily involved" the alleged acts of the accused on which count 2 was based; that there was no separate criminality which would warrant the bringing of the two charges; that the Court of Criminal Appeal had held in Nahlous that it was an abuse of process to bring the two charges, notwithstanding the submission of the Crown that the two offences "were aimed at different policies"; and that the Court of Criminal Appeal had regarded it as not irrelevant that the maximum penalty for the Code offence was much greater than the maximum penalty for the Copyright offence "which on any view was the principal act of criminality".

1. Nahlous has been referred to in subsequent New South Wales Court of Criminal Appeal cases, including Schembri v R (2010) NSWCCA 149, another case in which the further charge was a charge under s 400 of the Code; Kinchela v R (2010) NSWCCA 167 in which the offender had been sentenced for both an offence of stealing a motor vehicle and an offence of breaking and entering and stealing the same motor vehicle; and Hinchcliffe v R (2010) NSWCCA 306 in which the Court of Criminal Appeal held that an act of criminality in receiving stolen property (even where the stolen property happened to be drugs) was different from an act of criminality in possessing a drug for the purposes of sale.

1. I accept that there are statements of principle in the judgment in Nahlous of more general application than simply to cases where the second offence is an offence under s 400 of the Code .

1. However, Nahlous seems to me to be a particularly gross example of improper charging. The Court of Criminal Appeal held that the money Nahlous received, which was the subject of the Code offence, was simply the proceeds of his offence of making an unauthorised sale of the decoders. The receipt of the money was "part and parcel" of the sale of the decoders. It was never the intention of the investigators that Nahlous should keep the money he obtained from the sale. Nahlous could have been arrested before the money was handed over and received by him and charged with an offence of offering to sell the decoders which would have carried the same maximum penalty.

Blay v The Queen

1. Blay is a decision of the Court of Appeal Western Australia. Blay was arrested with a quantity of a drug in his possession. He was convicted of an offence under Commonwealth law of importing a trafficable quantity of a drug contrary to s 233B(1)(b) of the Customs Act then in force and with an offence under Western Australian State law of possession of the same drug with intent to sell or supply. Blay was sentenced to a term of imprisonment of 6 years for each of the offences, the sentence for the State offence to commence after he had served 2 years of the sentence for the Commonwealth offence.

1. Blay appealed against the sentences contending that the sentencing judge had erred in ordering that the sentences be served partly cumulatively and in not properly applying the sentencing principle of totality.

1. The Western Australian Court of Appeal held that the two offences were part of a single transaction for which fully concurrent sentences would ordinarily be appropriate and the appeal against sentence was allowed.

1. The part of the judgments of the members of the court on which counsel for the accused focused was paragraph 6 of the judgment of McClure JA in which his Honour said:-

Further there is no express or implied explanation in the sentencing judge's reasons for ordering partial cumulation. Ordinarily that may not cause a difficulty but this is not an ordinary case. The Commonwealth offences in s 233B of the Customs Act are the equivalent of the State offences in s 6(1) of the Misuse of Drugs Act . Although the Commonwealth and State offences in this case focus for Constitutional reasons on different conduct at different stages in the process of drug trafficking and have different elements, they have the same purpose, being to prevent the distribution of illicit drugs in the community. Moreover, the Commonwealth offence and the applicable penalty for it incorporates a presumption, based on quantity, that the drug is imported for trafficking purposes. The overlap with the State offence is clear: the appellant is to be punished for aiding in the importation of drugs to be used for trafficking purposes and being in possession of the same drugs for the same purpose. The propriety or desirability of bringing two charges in such circumstances was not addressed. I have reservations as to its appropriateness. Counsel for the Commonwealth was unable to refer the Court to any case in which the question has been considered. My research has located only one case where an offender has been convicted of a Commonwealth and State offence for the same drugs: R v Slatinec [1999] NSWCCA 2. In that case the sentencing judge ordered the sentences to be served concurrently. That was not an issue in the appeal nor the subject of comment by the New South Wales Court of Criminal Appeal.

1. Wheeler JA gave a short judgment in which he simply said that he agreed with the reasons for decision of McClure JA. Except for a statement of the facts of the case, I was not directed to any part of the judgment of the third member of the court, Buss JA.

1. The facts in Blay are obviously much closer to the facts in the present case than were the facts in Pearce or Nahlous . What McClure JA said in paragraph 6 about the bringing of both charges is obiter and is only a comment that his Honour had "reservations" about the "appropriateness" of bringing the two charges and he referred to the New South Wales case of Slatinec in which two such charges had been brought.

1. In Slatinec the offender had been sentenced for both an offence of being knowingly concerned in the importation of a drug and an offence of supplying a prohibited drug being part of the same quantity of the drug. The sentence for the second offence was fully concurrent with part of the sentence for the first offence. In the judgment of the Court of Criminal Appeal there is no discussion of the propriety of bringing both of the charges against the offender.

Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502

1. Reference was made in the course of argument to the judgment of Gleeson CJ, as his Honour then was, in E nvironment Protection Authority v Australian Iron & Steel and particularly what his Honour said at pages 507 - 508. His Honour there said:-

Where an Act of Parliament makes a certain type of conduct an offence, and imposes a penalty, the offence will usually be characterised in terms of a certain quality or attribute that may be attached to primary facts. Different statutes may fasten upon different qualities or attributes of the same set of primary facts to create separate offences. To assert that a person may not be convicted of multiple offences for the same facts invites a request for a more precise definition of the relevant facts.

1. This passage in his Honour's judgment was quoted by Bell JA as her Honour then was in Einfeld v R (2008) 51 MVR 200; (2008) NSWCCA 215 at paragraph 45 and Gleeson CJ's judgment was referred to and applied in R v Dudko (2002) 132 A Crim R 371 (see per Spigelman CJ at 390 (108)).

Further consideration

1. It is for the prosecution to determine what charges should be laid against an accused ( Pearce at 620(30)). However, the prosecuting authorities should not multiply charges unnecessarily ( Pearce at 621(30)) and a court has power to prevent an abuse of its process ( Pearce at 620(29)). A single series of events can give rise to several different criminal offences to which different penalties attach ( Pearce at 615(11)) and it is not necessarily an abuse of process for the prosecuting authorities, in those circumstances, to bring more than one charge.

1. The Crown submitted that the purposes of the two legislative provisions (s 307.11 of the Code and s 25(2) of the Drug Misuse and Trafficking Act ) were different and cited Stevens.

1. In Stevens Lee CJ at CL said at 82:-

"The clear scheme of s 233B, and its references to possession of the narcotics, being to facilitate the prohibition of the importation of narcotic goods, one may contrast that purpose with the evident purpose of the State Act which has nothing to do whatever with the question of importing of goods: its sole purpose is to control within New South Wales, the use of 'prohibited drugs and prohibited plants' as defined in s 3 and to create offences in respect thereof."

1. However, the issue in Stevens was whether there was an inconsistency within s 109 of the Commonwealth Constitution between s 233B of the Customs Act Commonwealth then in force and the Drugs Misuse and Trafficking Act NSW. The distinction drawn by Lee CJ at CL between the purposes of the two Acts has less force in a case such as the present where no prohibited drugs ever entered New South Wales. Also in Blay McClure JA was of the opinion that s 233B of the Crimes Act and the Western Australian State legislation had the same purpose, stated at a fairly high level of generality, "to prevent the distribution of illicit drugs in the community".

1. The elements of the two offences are clearly different and the two offences can be said to address different aspects of the applicant's alleged criminal conduct. I give some limited weight to these factors, while bearing in mind what Gummow J said in Pearce at 629(67).

1. I have already noted that it was not in dispute on this application that the same evidence or virtually the same evidence would be admissible on both charges.

1. The difference in the maximum penalties for the two offences was a factor relied on by both the applicant and the Crown and the opposing arguments seem to me to largely offset each other. As regards the expression of opinion by the court at paragraph 19 of Nahlous , that the difference in the maximum penalties for the two offences was "not irrelevant", I do not consider that in the present case the offence charged in count 1 can be regarded as being "on any view the principal offence". In the present case, each of the offences could be regarded as a principal offence.

1. I have found that there is some, even if limited, alleged criminal conduct on the part of the accused which would fall within count 2 but would not fall within count 1. If the charges in the indictment are to reflect all of the accused's alleged criminal conduct, it is necessary that count 2 be included in the indictment. I am conscious that, if both counts 1 and 2 are included in the indictment and there is a conviction on both counts, great care will be necessary in sentencing the applicant, in order to avoid double punishment.

1. The conclusion I have reached is that I should dismiss the application that the second count be stayed as an abuse of process.

1. I have already indicated that I was informed at the hearing that, whichever way I decided the application that the second count be stayed as an abuse of process, it was likely that there would be an appeal or an application for leave to appeal.

1. Under s 5F(3) of the Criminal Appeal Act an accused may appeal against an interlocutory order, only if the Court of Criminal Appeal gives leave to appeal or I certify that the order is a proper one for determination on appeal. I am reluctant to tie the hands of the Court of Criminal Appeal by giving a certificate and I do not give one. However, I do respectfully suggest that is it highly desirable that the question of what counts should properly be included in the indictment be determined before a trial of the accused commences.

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Decision last updated: 08 September 2011