Adler v The Queen

[1994] HCATrans 330

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl62 of 1993

B e t w e e n -

GEORGE ADLER

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Adler 1 12/5/94

AT SYDNEY ON THURSDAY. 12 MAY 1994, AT 10.00 AM

Copyright in the High Court of Australia

MR B.T. STRATTON, QC:  May it please the Court, I appear for

the applicant with my learned friend,

MR S.J. ODGERS.	(instructed by Trevor Nyman &
Company)

MR K. MASON, QC, Solicitor-General for New South Wales: I

appear for the respondent with my learned friend,

MR P.J.P. POWER. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions (New South

Wales))

MASON CJ:	Mr Stratton?
MR STRATTON:	Your Honours, this matter, we submit involves

a very important question of law concerning whether

or not the Director of Public Prosecutions or the

Crown can in effect go behind a stay order, where a

stay has been issued concerning a charge of

conspiracy, and then prefer charges involving
substantive offences. Those substantive offences
being of course, in this case, no more than the

overt acts said to be as a result of the agreement

which constituted the conspiracy.

We say, Your Honours, that a precedent has

been set in relation to a matter akin to a criminal

charge of conspiracy in the case of Walton

v Gardiner, where a stay was ordered some years

prior to other charges being preferred, or other

complaints being made before a medical tribunal.

Back in 1986 complaints were made before a medical

tribunal in relation to several doctors from the Chelmsford Private Hospital. An application was

made for a stay in relation to that particular
matter, and it was successful. There was then a

long inquiry conducted some years later. As a

result of that particular inquiry the medical

tribunal then decided to take further action

against those particular doctors.

In relation to the second lot of complaints

that were made against the doctors, it could not be

said that the complaints were identical, but it was

said by the court that they were in fact similar.

We submit, with great respect, that the situation

in this particular case is analogous and there

should be some pronouncement by the High Court on

the question of substantive charges being
preferred after a stay has been granted in respect

of a conspiracy charge.

MASON CJ: What sort of pronouncement can we make as a

matter of general principle?

Adler 2 12/5/94

MR STRATTON:  The same type of pronouncements that have been

made in relation to conspiracy and substantive

matters, for instance on the question of sentence;

the same sort of pronouncements that have been made

by the court, for instance, where the court frowns

upon the preferring of a charge of conspiracy if

substantive charges are available.	The same sort
of pronouncement that the court - - -

MASON CJ: But this would be the reverse pronouncement,

would it not?

MR STRATTON:  Our submission, Your Honour, is that it does

not matter really if it is the reverse or not.

MASON CJ: But does it not all depend on the particular

circumstances? I do not see, myself, how you can

get a general principle of wide application - - -

MR STRATTON:  Your Honour, if it involves a case of

something akin to double jeopardy which, we submit,

it does in this particular case. Where there is

something akin to double jeopardy, and that is what

it is in this particular case; you have a case

where a conspiracy charge was preferred, it

involved the receipt of certain moneys and the

application of those moneys, which the Crown said

was fraudulent, and then as a result of a stay in

relation to this what happened was that further

charges were then preferred by the Crown involving fraud and involving the receipt of those very same

moneys, and the application of those very same

moneys.

We submit that it is akin to double jeopardy,

and the Court would be in no danger of making any

general statement in relation to saying, "In such
cases where there is this situation, where it is

akin to double jeopardy, that the prosecution

should be restricted." If the situation was,

Your Honour, for instance if a charge of conspiracy

had been preferred against the applicant, he had

gone to trial and he had been either acquitted or

he had been convicted, one would have thought, with

great respect, that had the Crown then come along

and presented substantive charges, in the same

manner that they did here and under the same

circumstances, that there would have been some

pronouncement of principle then by the

High Court. We submit that this is no different.

MASON CJ:  Can you demonstrate an incorrect principle or

test was applied in this case?

MR STRATTON:  We submit really there was not a great deal of

test applied at all. The test was not applied at

all in respect of this particular matter. All the

Adler 12/5/94

Court of Criminal Appeal said in this was the

charges were different.	So we submit that was an
incorrect test.	The Court of Criminal Appeal, with

the greatest respect, was not entitled to just
dismiss the appeal before it by saying, "The

substantive charges that have been preferred are

different to a conspiracy charge, and that is

really the end of the matter", and that is really

all the Court of Criminal Appeal said in relation

to this.

TOOHEY J:  But what is the proposition that you would

contend for, Mr Stratton? Is it simply that as a

matter of law if facts involved in a substantive

offence are the same, or some of the same facts

that were involved in a conspiracy charge, it

follows that if the conspiracy charge was stayed

the substantive charges should also be stayed?

MR STRATTON:  Yes, Your Honour.

TOOHEY J: But is it complete identity of facts that is

necessary, or some of the same facts being

involved, or what?

MR STRATTON: With great respect, near enough I suppose.

Obviously every case is not going to have an

identical situation.	We would submit that in this
particular case it does.	We would submit that the

whole of the evidence that would be called by the

Crown to prove the substantive charges in this

matter is exactly the same as the whole of the

evidence that would have been called to

substantiate an allegation of conspiracy. We

submit that there would have been not one word of

difference in relation to this case.

Now, if that is the case it is really not much

different to turning around and preferring exactly

the same charge again. It is not much different to

turning around and preferring another charge of

conspiracy. It is, we submit, so akin to double

jeopardy that it is identical to double jeopardy.

I mean if a man is charged with a conspiracy to

cheat and defraud and, for whatever reason, the

matter is brought to a finality, we would submit he

is entitled to have an expectation that as far as

that matter is concerned that is the end of it.	He
is not going to face any further charges in
relation to those very facts.

Now, that is what has happened in this

particular situation.	The applicant here has had
his stay. Whether the	stay was rightly granted or
not, in our respectful	submission, and we do not
concede it was wrongly	granted, but whether it was
rightly granted or not	we submit does not matter

Adler 4 12/5/94

much. He was entitled to an expectation, having

had the prosecution against him stayed for

conspiracy, that in relation to those facts

surrounding that particular allegation of

conspiracy, the matter was completely at an end and

he would not have to be facing further charges in

respect of that matter.

It is no different, we would submit,

Your Honours, to, as I have said, preferring exactly

the same charge. It is exactly the same charge in

a different form. True it is that the Crown have

come along and said that there are now eight

charges you face instead of the one conspiracy

charge, but they involve exactly the same amounts

of money, and his dealing with them in exactly the

same way. It is complete double jeopardy. We

submit that there would be no difficulty, with

great respect, in making any pronouncement of

principle along those lines, that notwithstanding
that the charge that has been preferred in the
second instance is in different words, or

notwithstanding that the number of charges are different, but where the facts relied upon are exactly the same, and this is the case, that there

should be some pronouncement that the prosecution

is not entitled to do this. It is unfair. It is

unjust. It is vexatious.

MASON CJ:  You are not suggesting that every time a charge

of conspiracy is stayed, that it automatically

follows that charges of the substantive offences

should be stayed, or are you submitting that?

MR STRATTON:  I am submitting that firstly, Your Honour, but

if that is wrong it certainly would be the case in

most instances, and there would be no danger in the

Court saying that.

MASON CJ: Saying what?

MR STRATTON:  No danger in the Court saying that if the

evidence produced is going to be identical or near

enough to identical, that it is wrong for the

prosecution to then turn around and bring
substantive charges to replace conspiracy charges

that have been stayed, or replace a conspiracy

charge where there has been a trial and a
conviction, or replace a conspiracy charge where

there has been a trial and an acquittal. We submit

really there is no difference. There is still the

same expectation.

MASON CJ: Take a case where proof of the conspiracy charge

calls for evidence from a particular witness, or

refutation of the charge calls for refutation by

evidence from a particular witness, and the

Adler 12/5/94

substantive offences do not call for that. What do

you say about that situation, when a stay is

granted on the conspiracy charge?

MR STRATTON:	That would depend upon the circumstances of course, Your Honour. But that is certainly not the
case in this case.  In this case the evidence
called by the Crown to prove a conspiracy would
have been evidence of the overt acts, there being, as I understand the case, no direct evidence of any
agreement between the co-conspirators. Now, in
this case, Your Honour, there is no such situation
which Your Honour has outlined. In this case that
is just not the case. All of the evidence to prove
any conspiracy was evidence given, or to be given,
concerning receipt of the funds, of cheques, and
the subsequent distribution of it in the manner
which the Crown would say was unauthorized by the
person giving the money in the first place. It was
given on terms, the Crown would say, and those terms were not abided by.

This case, I suppose, could be said to be a

special case and it may be that pronouncement

should be made or a statement of principle in

relation to such a special case. But surely,

Your Honour, it would not be, with great respect, beyond the High Court to state a principle which

would be the principle applicable to this case and

a principle applicable in general where cases of

this type come before the courts.

TOOHEY J: But has this Court not done that in

Walton v Gardiner?

MR STRATTON:	That really was not the conspiracy situation.
TOOHEY J:	No, it was not, but the principles that were

enunciated there by the majority would apply, would

they not, to this sort of case?

MR STRATTON:  Not quite, Your Honour, no not quite. It is a

little bit different in a sense I suppose, in that

it was a little bit like preferring substantive

charges first and then, having those stayed,

preferring a conspiracy charge. I guess this is a

little bit different in that it is turned around

the other way, and it is a criminal matter. That

was really not a criminal matter. This is a

criminal matter and it has far more dangerous

repercussions, if the situation was allowed to

stand as it is at the moment.

With great respect, Walton v Gardiner, in a

case such as this, did not go quite far enough.	It
would be my submission, Your Honour, that if Walton v Gardiner had gone a bit further the

Adler 6 12/5/94

Court of Criminal Appeal would have been bound to apply Walton v Gardiner in this case. But

Walton v Gardiner cannot have gone far enough, and

we submit that Walton v Gardiner has not gone far

enough in relation to this particular situation and

therefore there should be a pronouncement, or a

statement of principle, by this Court.

DEANE J:  Of course one problem with your general

proposition would be that it would be an incentive

to the Crown to charge both conspiracy and

substantive offences.

MR STRATTON:  Your Honour, of course once again I would

submit, with great respect, that this Court and other Courts of Criminal Appeal have very often

frowned upon that.	It is either one or the other,
not both.

DEANE J: But if, in a case such as this, you say evidence

which would have been available on the conspiracy,

but which would not have been important on the

substantive counts, has been lost and therefore

there is a stay on the conspiracy. It follows as a

matter of law that there should be a stay on each

of the substantive counts. It would be a very good

argument for the Crown disregarding the concern

expressed by the courts and charging both

conspiracy and substantive counts.

MR STRATTON:  Your Honour, that may well be the case. The

Crown might then decide to turn around and do what

the High Court and the Courts of Criminal Appeal

have frowned upon and charge both sets of charges,

that may well be the case. But surely that does

not alter the situation here, with great respect,

Your Honour.

DEANE J: It does, does it not? Because if, here, the Crown

had charged both conspiracy and substantive counts
and if one accepts what Her Honour said in the last

two paragraphs at page 47 of the appeal book, you

would not have an argument, that because Judge Nash

had stayed the conspiracy count, he should also

have stayed the substantive counts.

MR STRATTON:  I understand, Your Honour, what Judge Karpin

said, and I understand I am in a difficult position

in turning around and saying what Judge Karpin

said, we submit with respect, was wrong.

DEANE J:  I understand that, and I understand your argument

in terms of delay and how it came about and so on.

MR STRATTON:  We would submit, although it is not helping my

argument a great deal I do not suppose, but we

would submit that had the Crown charged both

Adler 7 12/5/94

conspiracy and substantive counts in connection
with this part of the case against the applicant,

Judge Nash would have stayed the lot. I appreciate Judge Karpin said no, and that is what Judge Karpin

read into the judgment that was made by Judge Nash.

But we submit that is not the case, and we submit

that the situation would be so rare, or extremely

rare, where if it was proper to grant a stay in

relation to a conspiracy, it would not be proper to

grant a stay in relation to substantive counts,

being the overt acts and, consequently, it would be

so rare or extremely rare if a stay was granted in

relation to substantive counts, it would not also

be granted in relation to a conspiracy count.

What has happened here is that Judge Karpin,

with great respect to him, and the Court of

Criminal Appeal have said, "They are really

different charges" and that is what they say. We

submit, with respect, that that is wrong and there

should be some statement of principle in relation

to that.

DEANE J: Just test as a matter of principle: say, for

example, the only substantive counts relate to

something that A clearly did, and the only basis

for the conspiracy count is an allegation that

before any of those acts A and B had reached an

agreement, and presume because of the Crown delay B

has died. Surely it could not be said as a matter

of principle that because B's evidence had been

lost in relation to the prior agreement, the

charges in relation to acts which A clearly did

should be stayed. I am only testing you in so far

as general principle is concerned.

MR STRATTON:  I understand that, Your Honour. Surely they

could be exceptions to any general principle. That

would be my submission to the Court. The final

submission is what I have said before, is that we
submit that the Crown should not be able to go

behind a stay, in circumstances where the evidence

is identical, and create what is in fact a

situation of double jeopardy, and that there

should be, with great respect, some statement of

principle in relation to that.

MASON CJ: Thank you, Mr Stratton. The Court need not

trouble you, Mr Solicitor.

The basis on which Judge Karpin refused the

relief sought in the District Court is disclosed in

a passage which appears at page 47 of the

application book, and I read it:

"I am, however, satisfied that it was not

the evidence of events simpliciter which was

Adler 12/5/94

rejected by Nash J but evidence which could

found an allegation of conspiracy. The

essential evidence to be gleaned from Austin

was whether or not there was an agreement of a

particular kind between the alleged

conspirators.

I am not satisfied that his Honour came

to a finding that Austin's evidence was
crucial to the accused in any other regard."

We are not persuaded that in reaching the conclusion which they reached, the courts below erred in principle. The application for special leave to appeal is therefore refused.

AT 10.20 AM THE MATTER WAS ADJOURNED SINE DIE

Adler 9 12/5/94