R v Formica

The defendants in this case are each charged with conspiracy to import a commercial quantity of a border controlled drug. A pre-trial application was brought for the conspiracy charges to be dismissed under s 11.5(6) Criminal Code 1995 (Cth). Justice Henry refused the pre-trial application. Whilst his Honour doubted the appropriateness of the prosecutor’s choice of charge in the circumstances of this case, this was not a basis to justify the exercise of the discretion under s 11.5(6) Criminal Code 1995 (Cth). It is for the prosecutor, not the court, to prefer a charge against an accused. A court must be satisfied that it is necessary or imperative, rather than merely preferable, to justify the exercise the power under s 11.5(6) Criminal Code 1995 (Cth). The defendants could not identify any circumstance, either alone or in combination with others, which justified the conspiracy charges being dismissed. The pre-trial application under s 11.5(6) Criminal Code 1995 (Cth) was refused.

Henry J (ex tempore)

28 March 2024

Background

The defendants are each charged with conspiracy to import a commercial quantity of a border controlled drug contrary to s 11.5(6) Criminal Code (Cth): see [1]–[5]. The prosecution alleges that the defendants SF and AK, were parties to a conspiracy to import a border controlled drug into Australia, and that this conspiracy successfully achieved its objective on 30 August 2018 (the “first conspiracy charge”). [1]–[2]. GM and PF are alleged to have joined a later conspiracy, together with SF and AK, to import a further commercial quantity of a border controlled drug into Australia on 26 July 2020, however, this conspiracy did not achieve its objective and the importation attempt failed (the “second conspiracy charge”). [1]–[2]. In both the first and second conspiracy, the defendants are said to have agreed to import a border controlled drug into Australia using a light aircraft piloted by a co-conspirator who remains in custody in Papua New Guinea. [1]–[2]. The defendants made a pre-trial application seeking dismissal of the conspiracy charges under s 11.5(6) Criminal Code 1995 (Cth) which relevantly provides as follows:

“11.5Conspiracy

…

(6)A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.” [6].

Whether the interests of justice required the conspiracy charges to be dismissed

It is the role of a prosecutor, not a court, to choose a charge to allege against an accused. [8]. Subsection 11.5(6) does not empower a court to dismiss a conspiracy charge because it disagrees with the prosecutor’s choice of charge. [8]. The exceptional power in sub-s 11.5(6) is not confined to any particular stage of a proceeding, and by implication, the circumstances which can enliven the discretion it confers may go beyond the evidence which is said to support a conspiracy charge to other circumstances, if they, or their consequence, are so significant as to meet the high threshold to justify judicial intervention in what is ordinarily the prerogative of the executive. [9]–[10]. The use of the word “require” in subss 11.5(6) is significant. [11]. The exercise of the discretion must be necessary or imperative, rather than merely preferable. [11]. If the threshold for the exercise of this discretion were one of preference, a court would merely substitute its own view in relation to the choice of charge for that of the prosecutor. [11]. Subsection 11.5(6) was intended to be a safeguard against abuse of conspiracy charges. [12]–[13].

Justice Henry observed that the exercise of the discretion could be appropriate if it were exercised to put an end to a prosecutor’s “dual-pursuit” of both a conspiracy and substantive charge: see [14]–[15]. There is no dual-pursuit of both conspiracy and substantive charges in this case. [15]. The prosecutor has preferred conspiracy charges. [15]. The relief under sub-s 11.5(6) is not a stay, it is a “dismissal”. [15]. However, practically speaking, the prosecutor could promptly present new indictments containing substantive charges in the event of a dismissal under this subsection. [15]. Justice Henry doubted the apparent advantage of conspiracy charges in circumstances where it is more difficult to explain, and be understood by, a jury, only to result, if successful in obtaining conviction, “a likely similar, if not identical, sentence outcome …”. [20]–[22]. However, this was not a basis to invoke the discretion. [22]. The applicants had failed to identify any circumstances, either in their own right, or in combination, that justified the exercise of the court’s discretion. [22].

Disposition

In the result, the application was refused. [27].

D Kerr