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

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mark William Standen

Details

AGLC: R v Mark William Standen [2011] NSWSC 1038
Case: [2011] NSWSC 1038
Decision Date: 17 February 2011

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Mark William Standen, the Federal Court of Australia was presented with a matter concerning the abuse of process within the context of criminal charges. The defendant, Mark William Standen, faced charges pursuant to sections 307.11(1) and 11.5 of the Commonwealth Criminal Code. Additionally, there was a charge under section 25.2 of the Drug Misuse and Trafficking Act of New South Wales. The primary issue before the court was whether the inclusion of the state-based charge on the same indictment as the federal charges constituted an abuse of process.

The court needed to determine if the joint indictment violated any principles of fairness or justice, particularly focusing on whether it prejudiced the defendant's right to a fair trial. The legal question hinged on whether such an inclusion could be deemed an abuse of process under the circumstances presented. The court assessed whether the joint prosecution of these charges, both state and federal, was permissible or if it amounted to an unjustifiable prolongation of the proceedings that could prejudice the defendant's rights.

In delivering the judgment, the court held that the inclusion of the charge under the Drug Misuse and Trafficking Act on the same indictment as the federal charges did not constitute an abuse of process. The court found that the joint indictment did not unfairly prejudice the defendant's right to a fair trial and did not violate any principles of justice. It was determined that the prosecution could proceed with the combined charges as it did not amount to an unjustifiable prolongation of the proceedings. Therefore, the court dismissed the application regarding the alleged abuse of process.

Orders