R v Pastor Pastor[2025] QSCPR 10

SUPREME COURT OF QUEENSLAND

1. [1]
   The Commonwealth Director of Public Prosecutions has presented an indictment containing one count alleging an offence against s 9 (1)(a) of the Drugs Misuse Act 1986 (Qld).  The count is that between 23 and 24 March 2021 at Brisbane and elsewhere the applicant unlawfully had possession of the dangerous drug methylamphetamine and that the quantity of the drug exceeded 200.0 grams.
2. [2]
   Pursuant to s 590AA(2)(a) of the Criminal Code (Qld) the applicant applies for a ruling that the prosecution of this indictment be permanently stayed.  The applicant’s fundamental contention is that an order for a stay is necessary to prevent the presentation of a significantly or substantially different prosecution case from that which was presented at the applicant’s trial.  That trial concerned two counts, one being a count alleging that between 23 and 24 March 2021 the applicant attempted to possess a commercial quantity of a border controlled drug, contrary to ss 11.1(1) and 307.5 of the Criminal Code (Cth).
3. [3]
   The application for a stay is refused for the reasons set out below.

The context of the present application

4. [4]
   The indictment the subject of the present application was presented in the following context.
5. [5]
   A jury found the applicant guilty of two offences: a count of aiding in the importation of a commercial quantity of a border controlled drug (count 1);^[1] and the attempted possession count referred to above (count 2).
6. [6]
   The applicant appealed against both convictions on the ground that the verdicts were unreasonable.  The Court of Appeal heard submissions relevant to this ground.  After the Court reserved judgment, the Court invited the parties to provide submissions about whether the evidence at the trial raised the statutory defence provided for by s 307.5(4) of the Criminal Code and if it did, whether an omission to direct the jury about the defence caused a miscarriage of justice necessitating a retrial.
7. [7]
   In response to that invitation the applicant disavowed any argument that a miscarriage of justice was occasioned by an omission to leave the defence to the jury and further developed the submission that the verdict on count 2 was unreasonable. The prosecution submission was that the defence was not raised on the evidence, however, if it was held that it was, no miscarriage of justice could be demonstrated.
8. [8]
   In the result the verdict on the count of aiding in the importation of a commercial quantity of a border controlled drug was held to be unreasonable and the Court ordered that a verdict of acquittal be entered on count 1.^[2]  In relation to the count of attempted possession, the verdict was not shown to be unreasonable, however, the defence was held to be raised on the evidence and the omission to direct the jury about it caused a miscarriage of justice.^[3]  A retrial was ordered on count 2.
9. [9]
   The trial concerned almost nine kilograms of a border controlled drug (methamphetamine) which had been sent by ship from Canada to Australia and concealed in five drive shafts.^[4]  After the shipment entered Australia, police removed the drugs from the drive shafts and then allowed the shipment to continue to delivery.  The removal of the drugs by the police was the reason that count 2 was charged as an attempt to possess a commercial quantity of a border controlled drug.
10. [10]
    The prosecution case was that the applicant had control over the disposition of the drive shafts.  He was alleged to have allowed for their delivery to a storage facility where he had a storage unit and for their movement from that facility to a house at West End.^[5]
11. [11]
    The applicant gave evidence that he did not know the shafts contained drugs, that he did not know the shafts had been imported, and that he understood they had been stolen in Melbourne and brought to Brisbane to be sold.^[6]
12. [12]
    Although, “It was well open for the jury to find that the appellant did know that the car parts contained drugs”,^[7] his evidence “that he thought the car parts came from Melbourne, and were not imported, … satisfied the evidential onus”,^[8] meaning that the defence provided for in s 307.5 (4) of the Criminal Code (Cth) should have been left for the jury to consider in relation to count 2.
13. [13]
    The circumstance that the methylamphetamine had been removed from the drive shafts, thus preventing the applicant from possessing the drug, does not affect a case for the offence of unlawful possession under s 9 of the Drugs Misuse Act.  Section 117(1) of the Drugs Misuse Act deems a person who is guilty of only an attempt to be guilty of a completed offence.^[9]
14. [14]
    The possibility of a charge being brought under the criminal law of a State for conduct that might also be made the subject of a charge under the Criminal Code (Cth) is not prohibited.^[10]

Jurisdiction to stay proceedings

15. [15]
    Section 590AA(2)(a) of the Criminal Code (Qld) confers the power to stay an indictment in advance of a trial.
16. [16]
    In Williams v Spautz it was said that a court has an inherent jurisdiction to stay a proceeding if the proceeding would constitute an abuse of process and an abuse of process may occur even if there is no basis to suppose that a trial will be unfair.^[11]  It was also said that:^[12]

“As Lord Scarman said in Reg. v. Sang, every court is ‘in duty bound to protect itself’ against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J. referred to them in Moevao v Department of Labour in a passage which Mason C.J. quoted in Jago. The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice. As Richardson J. observed, the court grants a permanent stay:

‘in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes … that the Court processes are being employed for ulterior purposes or in such a way … as to cause improper vexation and oppression’.”

The bases on which a stay is sought

17. [17]
    The applicant submitted there were three considerations warranting an order for a permanent stay.  First, in presenting a new indictment charging the applicant with an offence contrary to s 9 of the Drugs Misuse Act, the respondent had not complied with the order of the Court of Appeal for a retrial on count 2.  Instead, the respondent sought to present a new case.  Second, the presentation of the new indictment made manifest a fundamental change in the factual premise of the prosecution case.  Third, to allow a trial to proceed on the new indictment would cause irremediable unfairness.  The applicant submitted that satisfaction of any or all of these matters leads to a conclusion that the processes of the Court are being used unfairly by the prosecution.

Failure to comply with the order of the Court of Appeal

18. [18]
    The applicant submits that the possibility of a trial of a count based on s 9 of the Drugs Misuse Act was not raised by the prosecution in the Court of Appeal.  This was said to be significant for two reasons.  First, because if the Court of Appeal had been made aware of the possibility, the Court would not have exercised its discretion to order a new trial on count 2 knowing the prosecution contemplated another trial on the basis of a new case.  Leaving to one side the obvious difficulty associated with speculating about how the Court of Appeal would have exercised its discretion, whether a trial on a count based on s 9 of the Drugs Misuse Act would be a trial on a new case is considered at paragraphs [28] to [39] below. Second, in written submissions the applicant stated that the respondent did not raise the prospect of any other kind of relief in the Court of Appeal. I understand this to mean that the prosecution did not seek an order for a retrial on another charge. 
19. [19]
    A number of matters can be observed. 
20. [20]
    First, the order for a new trial on count 2 was not an order that the prosecution had to proceed to another trial on count 2.  It was an order enabling such a trial to occur, however, whether it was to occur was subject to the exercise of the Director’s prosecutorial discretion.  As was observed in Maxwell v The Queen:^[13] “Our courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial”.
21. [21]
    The applicant’s acknowledgement in the course of oral submissions that the Director could exercise the discretion to discontinue the prosecution of count 2, despite the Court’s order for a new trial on that count, is not congruent with the position taken that the Director was otherwise obliged to comply with the Court’s order for a new trial on count 2.
22. [22]
    Second, the jurisdiction of the Court of Appeal to hear and determine an appeal against conviction is predicated on there having been a conviction on an indictment.^[14]  The Court shall allow an appeal against conviction if satisfied any of the circumstances set out in s 668E(1) of the Code have arisen. In any other case it shall dismiss the appeal.^[15] If the Court allows the appeal then, subject to the special provisions of chapter 67,^[16] the Court shall quash the conviction and direct that a judgment and verdict of acquittal be entered.^[17] The conviction referred to in s 668E is the conviction on the indictment. 
23. [23]
    Section 668F(2) provides:

“668F  Powers of Court in special cases

1. …

2. Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the Court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.”

24. [24]
    Section 669(1) provides:

“669  Power to grant new trial

1. On an appeal against a conviction on indictment, the Court may, either of its own motion or on the application of the appellant, order a new trial in such manner as it thinks fit, if the Court considers that a miscarriage of justice has occurred, and that, having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the Court is empowered to make.”

25. [25]
    Sections 668F(2) and 669(1) are contained in chapter 67 of the Code.  Succinctly stated, the former provides that if an appellant has been convicted of an offence and the jury could on the indictment have found the appellant guilty of some other offence, the Court may instead of allowing the appeal, substitute for the verdict found a verdict of guilty of another offence.  It will be noted that the power to substitute a verdict of guilty is confined to the substitution of a verdict which the jury “on the indictment” could have returned.  No one suggests that on the indictment on which the applicant was tried the jury could have found him guilty of any offence under the Drugs Misuse Act.
26. [26]
    Section 669(1) provides that a new trial may be ordered if the Court considers a miscarriage of justice has occurred and that having regard to all of the circumstances, such miscarriage can be more adequately remedied by an order for a new trial than by any other order the Court may make.
27. [27]
    It is clear that the power to order a new trial pursuant to s 669(1) is confined to the power to order a new trial on the count in relation to which an appellate court has set aside the conviction.^[18]
28. [28]
    In reliance upon a statement made in the consideration of a case involving an appeal against an order for a new trial instead of an order of acquittal,^[19] the applicant argues that there is a significant or substantial difference between the prosecution case relied on for count 2 and the prosecution case proposed to be relied on for the count based on s 9 of the Drugs Misuse Act.  The applicant says that the respondent therefore seeks to prosecute a new case and that should not be tolerated. 
29. [29]
    In Parker it was held that:^[20]

“It would be unfair to the appellant to order a new trial in which he would have to meet a significantly different case to that the jury were asked to consider.”

30. [30]
    In R v Taufahema,^[21] Gummow, Hayne, Heydon and Crennan JJ referred to various cases including Parker, and said:^[22]

“These authorities suggest that the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial.”

31. [31]
    This statement was made in the consideration of a case involving an appeal against an order of acquittal rather than an order for a new trial.
32. [32]
    That the prosecution seeks to make a new case is apparent the applicant says, from the circumstance that the indictment presented after the appeal was determined contains a count brought under a different statute enacted by a different legislature which required a new indictment.^[23]
33. [33]
    However, it has been held that it is the “substance” of the case that is the predominant consideration in determining whether a new case is being made.^[24]  Concentrating on the substance of a prosecution case assists to identify whether a new case is being made because a new case may be made even in circumstances where there is no change to the count on the indictment.  An example is a case concerning a count of robbery. A trial based on particulars that a defendant counselled or procured another to do the act that constituted the offence may readily be regarded as a significantly or substantially different case to that advanced in an earlier trial for robbery based on particulars that the defendant was the person who did the act which constituted the offence.
34. [34]
    The respondent makes the point that particulars of the acts the prosecution proposes to rely on to prove an offence against s 9 of the Drugs Misuse Act are identical to the particulars that were relied on to prove count 2 at the trial.  The respondent says its case concerns the same objects, contained in the same receptacles and concerns the same efforts made across the same days and at the same place to obtain the objects.   The respondent submits that the evidence it will adduce at a trial of an offence against s 9 will be the same as the evidence it adduced to prove count 2. 
35. [35]
    I consider that in essence there is no substantial or significant difference between the prosecution case advanced at the trial to prove count 2 and the prosecution case intended to be advanced to prove an offence against s 9 even though a different charge is now brought.  The acts relied on to prove the attempt to possess are the same.  The case remains substantially as it was despite a different charge.
36. [36]
    The applicant did not rely on one difference which is apparent between the case advanced at the trial and the case now sought to be made.  Previously the contents of the drive shafts were said to be methamphetamine.  Now the prosecution says the contents are methylamphetamine.  I do not regard this difference as substantial or significant.
37. [37]
    Section 307.5 of the Criminal Code (Cth) provides:

“307.5  Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants

1. A person commits an offence if:

1. the person possesses a substance; and

2. the substance was unlawfully imported; and

3. the substance is a border controlled drug or border controlled plant; and

4. the quantity possessed is a commercial quantity.

Penalty: Imprisonment for life or 7,500 penalty units, or both.

2. Absolute liability applies to paragraphs (1)(b) and (d).

3. The fault element for paragraph (1)(c) is recklessness.

4. Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.”

38. [38]
    Section 9 of the Drugs Misuse Act provides:

“9  Possessing dangerous drugs

1. A person who unlawfully has possession of a dangerous drug is guilty of a crime.

Maximum penalty—

1. if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 4 in respect of that thing—25 years imprisonment; …”

39. [39]
    If considered from the standpoint of the elements of the two offences, although there are some differences, the only difference that might conceivably be considered more than minimal is the element concerning importation.  Section 307.5 requires proof that the applicant attempted to possess a substance, s 9 requires proof that the applicant attempted to possess a thing.  The substance or thing was the powder concealed in the drive shafts.  The substance has to be a border controlled drug (s 307.5).  The thing has to be a dangerous drug (s 9).  The drug which had been in the drive shafts satisfied either of these elements.  The border controlled drug has to be of a commercial quantity, whilst the dangerous drug has to weigh in excess of the quantity specified in schedule 4 of the Drugs Misuse Regulation.  As the case concerns almost nine kilograms of drug, that quantity far exceeds a commercial quantity (which is 750 grams) or the quantity specified in schedule 4 (which is 200 grams).  Peculiar to the Commonwealth offence is the need to prove that the drug was unlawfully imported.  No such element attaches to the State offence and this difference is not significant or substantial.

A fundamental change in the factual premise of the prosecution case

40. [40]
    The applicant submits that the factual premise of the prosecution case has changed.  By seeking to proceed on a count for an offence that contains no element relevant to the source of the drugs alleged to be possessed, the prosecution case is no longer a case involving a drug importation.  The result is that the basic factual premise underlying the prosecution case has not been retained.^[25]
41. [41]
    However, the basic factual premise of the prosecution case has not changed.  The case for the State offence relies on the same particularised acts as those relied on for the Commonwealth offence.  The only change is that a circumstance in which conduct occurred (that the drug was unlawfully imported) is no longer an element which must be proven to establish the State offence. 

Irremediable unfairness

42. [42]
    The applicant submits that irremediable unfairness will arise in two ways if a trial now proceeds on the new indictment.  The first way, which was said to be the stronger, is that by not proceeding with a retrial on count 2 the applicant will be deprived of the defence provided for in s 307.5(4) and the prosecution will advance a factual allegation inconsistent with a favourable finding made by the Court of Appeal.^[26]  The finding is said to be that:^[27]

“… the appellant had satisfied the evidential onus, meaning that the defence in s 307.5(4) ought to have been put to the jury.”

43. [43]
    However, the defence provided for by s 307.5(4) only applies to an offence against s 307.5(1). An element of the offence is that the methylamphetamine was “unlawfully imported” and s 307.5(1) will “not apply if the person proves that he … did not know that the … drug … was unlawfully imported”. The matter of importation or otherwise is not an element of the offence against s 9 of the Drugs Misuse Act.
44. [44]
    The conclusion reached in the Court of Appeal that the evidence in the defence case was sufficient to discharge an evidential onus thereby necessitating that a defence be left for the jury to consider depended on the evidence adduced at the trial.  Even if the applicant was to be tried again on count 2, whether the evidential onus could be met at another trial would be contingent upon the applicant giving evidence and his evidence being sufficient to raise the defence provided for in s 307.5(4).  It is entirely speculative whether this would occur or not.  These circumstances do not provide a basis for a stay.
45. [45]
    On a trial for an offence against s 9 of the Drugs Misuse Act the defence provided for in s 129(1)(d) of the Drugs Misuse Act may apply^[28] if it arises on the evidence.
46. [46]
    The second reason why there would be irremediable unfairness is said to be that a trial for an offence against s 9 would “potentially” deprive a jury of directions about the benefit of the applicant’s acquittal on count 1.  There had been a practical link between the two Commonwealth counts - both related to importation.  That link would have allowed for an argument that the acquittal on count 1 was relevant to the circumstances of count 2. 
47. [47]
    The respondent’s submission is that it might be appropriate for the jury at a trial for an offence against s 9 to be informed of the acquittal on count 1. 
48. [48]
    In R v HMA, it was said that:^[29]

“… Whether evidence of an acquittal is admissible will depend on its relevance. … questions of relevance and the admissibility of evidence of an acquittal requires a detailed consideration of the facts and circumstances of the particular case.”

49. [49]
    It is simply not possible to know in advance of a trial, either on the count based on s 9 of the Drugs Misuse Act or a trial on count 2 whether the fact the Court of Appeal entered a verdict of acquittal on count 1 will or will not be admissible.  Accordingly, speculation about the possibility that a jury would not be made aware of the acquittal on count 1 does not provide a basis for an order for a stay.  If the acquittal on count 1 is shown to be relevant in the new trial it can be expected that the jury will be made aware of it.
50. [50]
    The order of the Court is:

1. The application is refused.