Ahern v The Queen

[1988] HCATrans 69

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B48 of 1987

B e t w e e n -

JOHN WAYMOUTH AHERN

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

"MASON CJ

WILSON J

DEANE J
DAWSON J

TOOHEY J

Ahern

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 20 APRIL 1988, AT 9. 48 AM

(Continued from 19/4/88)

Copyright in the High Court of Australia

C2Tl/l/PLC 70 20/4/88

MASON CJ:  Yes, Mr Griffin.

MR GRIFFIN: If the Court pleases. I had reached the

Victorian case of SORBY, (1986) VR 753, where the

Full Court of the Supreme Court of Victoria quite specifically held that the acts and declarations of co-conspirators can be used on

participation once the pre-conditions to the

application of the rule are satisfied.

DAWSON J:  Why do you need pre-conditions? I mean, I know

they say that but why do you need pre-conditions

at all?

MR GRIFFIN:  The condition is, Your Honour, that prima

facie.the party is shown to be a member of the

conspiracy.

DAWSON J:  But why do you need that? What you are trying

to prove is an agreement and you just put forward

the acts and declarations for that matter for which

you infer the agreement and if at the end you have

established consensus and participation then you

have established the case against a particular

defendant; if you have not established either

one of those things then the case falls.

MR GRIFFIN:  Your Honour, the cases do seem to show that

one cannot prove that a person is a party to a

conspiracy merely by reference to the acts and

declarations of co-conspirators.

DAWSON J:  I know they say that but what is the reason for

it?

MR GRIFFIN:  I suppose the reason is the possible

unreliability of what a co-conspirator has said

about a particular party.

DAWSON J:  Why is it any more unreliable than any other fact?

(Continued on page 73)

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MR GRIFFIN: Although in essence we submit that it does have

the reliability of res gestae-type evidence, it

does allow the possibility of a person to be

convicted, for example, in the course of a bank robberv because one of the robbers mentions his name. ·The courts seem to have guarded against

convictions purely on that sort of basis. "We

were sent here by X" - or - - -

DAWSON J:	That then is hearsay evidence.
MR GRIFFIN:	Yes.

DAWSON J: Is the rule restricted to hearsay evidence?

MR GRIFFIN: 

The co-conspirators' rule?

DAWSON J: 

The prima facie rule, yes.

MR GRIFFIN: 

No.

DAWSON J: 

Then why is it not?

MR GRIFFIN: 

Because although it is difficult to conceive

of an act of someone which, by itself, implicates
the accused, it is possible that that could be
the case.

DAWSON J: 

Of course, as the evidence is led in order to

do that.

MR GRIFFIN:  Yes.

DAWSON J: There is no reason, is there?

MR GRIFFIN:	Only the one that I have advanced.
DAWSON J:	And that only applies to hearsay.

MR GRIFFIN: In terms it seems to apply - - -

DAWSON J:  And only to hearsay strictly so called, not

statements which are part of the res gestae?

MR GRIFFIN:  Yes.

DAWSON J: Well, it has a very limited operation, does

it not?

MR GRIFFIN:  Yes. Your Honours, in SOREY, the passage 1s

at page 775.

DEANE J:  But if he says, "I'm sent here by X", do you

say that is ever admissible of the truth of the

statement?

MR GRIFFIN: If either part of the res gestae or if 1n

furtherance of the conspiracy, yes.

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DAWSON J: It is certainly admissible as a fact that he said

it and if X does something it is a fact in the context of which what X does must be assessed.

T2 MR GRIFFIN: Yes.

DEANE J: On what basis is it admissible as the truth

of the statement as distinct from as a fact in

carrying out the conspiracy?

MR GRIFFIN:  On the basis that there being - this is what

the authorities seem to indicate - that on the

basis of there being reasonable independent evidence

of X being a party to the conspiracy, that statement

having been made in furtherance of the conspiracy

is admissible for the truth of the statement.

DEANE J: Is there anything in this Court that confirms

that?

MR GRIFFIN:  I do not believe so, directly. There is a

recent case of BUTERA where the evidence was not -or the

question of the extent of the co-conspirators' rule was

not in issue but two judges in the passages - - -

DEANE J:  Do not let me take you out of your course, Mr Griffin.

MR GRIFFIN: If the Court pleases. The passage in SORBY is

at page 775, line 10:

Evidence of acts and statements of an individual

actor said to have been done and made in
combination with other persons may, of course,

be given in proof of the fact of combination

and of a particular accused's participation

in it.

And that then is confirmed on page 776 at line 40.

In the Western Australian case of MICKELBERG the

appellant, Brian Mickelberg, and five others had

been charged with conspiring to fabricate a gold

nugget known as the Yellow Rose of Texas. The

nugget was in the shape of the State of Texas and

those charged were said to have put it into that

shape in order to sell it for a large price. There

was found at the house of Raymond Mickelberg, one

of the co-conspirators, documentation which was
in Raymond Mickelberg's handwriting and the

documentation is set out at pages 4 to 5 of the

judgment of Mr Justice Pidgeon and the references

to Bin the documentation were references to the

appellant and they implicated him in the fraudulent

scheme by showing that he had received part of

the proceeds.

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Now, ultimately, the Full Court by a majority

of two to one, with Mr Justice Pidgeon dissenting

on this point, held the document inadmissible but

on the ground that it was not shown to have been

created in furtherance of the conspiracy. None

of the members of the Court suggested that the

document as an act of a co-conspirator was not

available for use to connect B. Mickelberg, the

relevant appellant, with the conspiracy.

Mr Justice Kennedy appears to have contemplated

its use for that purpose so long as the co-conspirators'

rule was satisfied - that appears at page 4 of

his judgment and Mr Justice Pidgeon, having held

that the document was produced in furtherance of

the conspiracy held that it was admissible and

he expressly approved the prima facie test in

MINUZZO and the rest of the reasoning in MINUZZO

and we would refer Your Honours to his judgment

at page 10 and again at page 16, without reading

it.

Your Honours, Canadian authority is very supportive

of the MINUZZO approach both in respect of the

use to be made of co-conspiratori acts and declarations

and in respect of the two-stage approach. The

most recent significant consideration of the matter

was by the Supreme Court of Canada in the case

of CARTER and, at this point, I wish only to take issue of participation. Justice McIntyre read the judgment of the Court and if I could take

Your Honours to page 389, approximately point 7,

he said:

The conspirators' exception to the

hearsay rule may be applied to afford

evidence of the accused's membership through

acts and declarations of fellow members

of the conspiracy performed and made in
pursuance of the objects of the

conspiracy.

And then again at page 392, again at about point 6 - - -

DEANE J:  We have a different report.

MR GRIFFIN:  I am sorry, Your Honours. The report that we

have is in the Dominion Law Reports and -

DEANE J:  We have got the Canadian Criminal Cases.

MR GRIFFIN: Yes. In the report I have the passages,

Your Honours, are at - - -

MASON CJ: It is not a long judgment, we ought to be able

to identify it.

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WILSON J:  Could you back to the first passage you cited,

Mr Griffin, so we can find it.

MR GRIFFIN:  Yes. Your Honours, it is at about the middle

of the judgment and it is in a paragraph which

begins "There are many expositions of the conspirators'

exception to the hearsay rule".

TOOHEY J: It is 572.

MR GRIFFIN:  572. Thank you, Your Honour. And in the middle

of that paragraph is the sentence that I just read:

The conspirators' exception to the hearsay

rule may be applied to afford evidence of

the accused's membership through acts and

declarations of fellow members of the conspiracy

performed and made in pursuance of the objects

of the conspiracy.

And the other passage, Your Honours, is three pages

later, it is in a very long - - -

DAWSON J:  I do not understand that. He is talking in one

breath about the hearsay rule and then he is talking

about acts in the same breath.

MR GRIFFIN: In the American authorities the co-conspirators'

rule is described as an exception to the hearsay

rule.

DAWSON J: Well, can you justify that?

MR GRIFFIN: 

On the footing that in so far as declarations

are concerned it needs to be seen to be such for
the - - -

DAWSON J: 

Not if the declarations are part of the res gestae

which -

MR GRIFFIN:	No, not if they are part of the res gestae.
DAWSON J: Which was said by this Court to be so in TRIPODI's

case.

MR GRIFFIN:  Yes. Your Honours, the other passage is at

about three pages later in a very long paragraph

which begins, "The trial judge must bear in mind"

and the passage is about a page later:

This evidenc~ taken with the other evidence,

may be sufficient to satisfy the jury beyond
a reasonable doubt that the accused was a

member of the conspiracy and that he is

accordingly guilty.

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WILSON J: It is on page 575 - at the bottom.

MR GRIFFIN: Thank you, Your Honour. In the United States

there are a number of decisions to the same effect.

We refer to THE UNITED STATES V GOODING, a decision

of the United States Supreme Court in 1827.

Justice Story wrote the judgment of the court.

Gooding was charged with being involved in the

slave trade.	The relevant evidence is recorded
at the middle of page 468 of the report.	A witness

gave evidence of having inquired of the master

of the vessel, one Captain Hill, as to who would

pay the crew in the event of disaster and:

Captain Hill replied, "Uncle John" -

which was a reference to Gooding. The evidence

was held to be admissible. Plainly, it was directed

to the issue of Gooding's participation in the

adventure and we take Your Honours to a passage

at page 469 and it is at about point 2:

So, in cases of conspiracy and riot, when

once the conspiracy or combination is established,

the act of one conspirator, in the prosecution

of the enterprise, is considered the act of

all and is evidence against all. Each is

deemed to consent to, or command, what is

done by any other in furtherance of the common

object. Upon the facts of the present case,

the master was just as much a guilty prjncipal

as the owner, and just as much within the purview of the act by the illegal fitment.

The evidence here offered was not the

mere declarations of the master upon other

occasions totally disconnected with the objects

of the voyage. These declarations were connected

with acts in furtherance of the objects of

the voyage, and within the general scope of

his authority as conductor of the enterprise.

The American authorities make it clear, also, that
the evidence can be used for all purposes.	We

refer Your Honours to MARQUEZ, a decision of the

US Court of Appeals, where the relevant evidence

was again a letter implicating a co-conspirator
which was called the "Firpo letter" and Justice Smith,

speaking for the court, said this at page 239 -

it is the right-hand column, in the middle of the

page:

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MR GRIFFIN (continuing):

Finally, appellants urge that this letter cou1d not be considered by the jury in consirlering rhe

question of membership. We have rejected this

argument repeatedly. Independent evidence of

membership is needed to ground the judge's

decision to admit hearsay declarations by
co-conspirators, but once admitted, the

declarations are available on all issues.

There is South African authority to the same

effect. We refer Your Honours to the decision in

MAYET, a decision of the appellate division of the

Supreme Court of South Africa. One Jones had,

in attempting to persuade two men to commit a murder,

identified his principal as Mayet. The evidence is

described at page 493, G in the judgment of

.Tustice Schreiner, with whom the other judges concurred.

DEANE J:	Do these cases treat the existence of independent
evidence as being a question for the judge, or for the jury?
MR GRIFFIN:	Some for the judge and some for the jury. I am - - -
DEANE J:	The ones you are referring us to seem to me to be
quite contrary to this two stage approach, the first
on a probability onus, the second on a beyond
reasonable doubt onus.

MR GRIFFIN: Yes. Your Honour, I was going to come to that

point directly.

DEANE J:	I see.
MR GRIFFIN:	The other passage where the facts are dealt

with is at page 495, points A and B. The passage

to which we take the Court is the passage in which

the evidence was held to be admissible, having quoted

Phipson, and this is at page 494, a passage which

says: 

"on charges of conspiracy, the acts and

declarations of each conspirator in
furtherance of the common object are
admissible against the rest: and it

is immaterial whether rhe existence nf the

conspiracy, or the uarticipation of the

defendants be proved first, though either
element is nugatory without the other."

A littler further down His Honour said:

Words that are said as part of the carrying

out of a purpose stand on the same footing as

acts done; they differ from a mere narrative.

All the evidence of acts, and of words that,

being executive, are indistinguishable from

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acts, must be looked at in order to ascertain

whether there was a conspiracv, and, if so,

who were the conspirarors. If all the evidence

brings the court to a conviction that the

existence of the conspiracy and the identity

of the conspir~tors are prov~d, the law doe~

not find an insuperable difficulty in the

logical objection that some of the evidence

could only be used if the eventual conclusion

were established.

DAWSON J: This, of course, was not a case of conspiracy,

was it?

MR GRIFFIN:  No. But although the rule, of course, is stated

as the co-conspirators rule, TRIPODI's case does

make it plain that it is of general application.

DAWSON J:  Yes, but the difference is when it is not a

charge of conspiracy you have to establish prima facie

some agreement in order to make the evidence admissible.

(Continued on page 80)

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MR GRIFFIN:	Yes.
DAWSON J:	With conspiracy it is different, because you have the charge there and the evidence is obviously relevant as
going to prove the charge and that is the distinction,
of course, that the joint judgment makes in TRIPODI's case.
MR GRIFFIN:	Yes.

DAWSON J: There is no suggestion of the so-called co-conspirators'

rule in the first part of that judgment where the

judgment is speaking about the conspiracy. The

suggestion is only made in relation to a charge of

specific events - larceny in that case, was not it?

MR GRIFFIN:	Yes.
DAWSON J:	Where it was sought to prove some sort of concensus to

being in evidence which would otherwise be inadmissible.

MR GRIFFIN:  Yes. Your Honours, in many cases, no adverse

comment has been made as to the admission of use of

evidence of declarations of co-conspirators to prove

participation. We refer Your Honours to the authorities

in paragraph (b) at page 3 of the synopsis. In those

cases one finds the general statement that such

evidence is admissible with no further elaboration.

Indeed, it is true to say that the law seems to have

been content to proceed on the basis for a very long

time that the statements in text, which are all simply

put in terms of the evidence being admissible, are

correct, and that there is no further need for any

elaboration as to whether the evidence goes to the

nature and extent of the conspiracy or to the question

of participation.

It is our submission that the Queensland cases,

such as FINN AND NIBLOCK, and the judgment under

appeal, are the first authorities to highlight and

emphasize the distinction between evidence going to

the nature and extent of the conspiracy on the one hand,

and evidence going to participation on the other.

That in itself requires a complicated direction

which the jury may not be able to understand.	It
requires the jury to be told that the acts and
declarations of	co-conspirators go to the

nature and extent of the conspiracy, but not to the

accused's participation in it. We submit that that

distinction would be unintelligible to most jurors.

DAWSON J: It would be unintelligible to me.

MR GRIFFIN:	Yes, but that is the effect of FINN AND NIBLOCK. Now, I will not take Your Honours to the four cases
listed at the top of page 3 of the synopsis. I
simply say that an examination of the cases will

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reveal that the evidence in question in each of

those cases was evidence which could only go in the

circumstances to the issue of participation. As to

BUCKTON, the New Zealand case, the brief statement

of the facts by Mr Justice Somers at page 262,

lines 37 to 50, makes it quite clear that the

evidence in question was the taped conversations

of co-conspirators which implicated Buckton. That

statement makes it plain that the evidence was being

tendered to prove Buckton's participation.

(Continued on page 82)

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.MR GRIFFIN (continuing):  And in the discussion by

Mr Justice Somers which follows on page 263,

especially lines 20 to 32, it is clear that

the evidence or the admissibility of this

evidence against Buckton was being considered
as an exception to the hearsay rule.

In TRIPODI's case, the relevant evidence appears to have been evidence by a motor mechanic

and a painter as to instructions that they had been

given by co-conspirators in the absence of TRIPODI,
although it is not entirely clear, but in holding
the evidence to be admissible, this Court found it
unnecessary to identify any basis for the admission
of the evidence and, at both pages 6 and 7, the

Court simply spoke in terms of the evidence being

admissible.

DAWSON J:  Some clue is given in argument where Sir Owen Dixon

says, "Some conversations are just as much acts.	They
are not narratives of past tense . They are not
admissions.	They are simply directions and are

admissible on that basis."

.MR GRIFFIN:  Yes, Your Honour. Now, as Your Honour has said,

the agency rationale and the res gestae rationale are

referred to in the passage on page 6 and it is our submission that those rationales for the admission

of this type of evidence support the proposition that

the evidence, once received, is received for all

purposes on the footing that an agent's acts and

declarations within the scope of the agency are

plainly admissible against the principle and,

where statements are admitted pursuant to the
res ,gestae doctrine, then they are admitted on the

basis, again, of them being an exception to the

hearsay rule and they go to prove the truth of the

statements.

IEANE J:	There is a logical problem about that though, is
there not?  I mean, if you are tendering the statement
to prove the agency, there is something slightly mad
to say the basis on which you can use the statement to prove the agency is that the agency exists.

.MR GRIFFIN: Yes, that is right. Well, this is why we submit

the threshold stage is necessary because one cannot

decide it all at the one point. This is the criticism,

and I will come to it in a moment,that

Glanville Williams' mode of the statement in ORTON's

case but, prior to coming to that, might I say this:

that so far as declarations are concerned, the rule

for which we contend brings in declarations made in

furtherance of the conspiracy.

DAWSON J: Now, TRIPODI's case does not suggest the rule that

you are contending for, does it?

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MR GRIFFIN:  It does not suggest it but it is not against

us.

DAWSON J: Well, it is in the sense that at the top of page 7

it is said:

Reasonable evidence of the preconcert must be

adduced before evidence of acts or words of

one of the parties in furtherance of the

common purpose -

et cetera.

MR GRIFFIN:	Yes.
DAWSON J:	But that is referring not to conspiracy but to where

a specific crime is charged and you trying to bring

in the acts of others because of preconcert. Well,

naturally, you would have to prove some preconcert in

order to establish the admissibility so that, in that

sense, TRIPODI's case is against you, is it not?

(Continued on page 84)

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MR GRIFFIN:  We submit not. What TRIPODI's case says, in

our submission, is that you will have - it refers

in particular to the situation dealt with in the

COAL VEND case - the situation in which A, B and C are

seen to be doing various things and from those acts,

by way of circumstantial proof, that it can be

concluded that they were acting in combination.

It does not say anything, either expressly or implicitly, against the existence of the broader rule stated in Phipson, for example, and in dealing

with or directing itself to the type of

situation where there is circumstantial proof of a

combination, the statements are made that appear on

pages 7 and 8.

There, dealing with that type of case, the agency

rationale and the res gestae rationale are called in

aid, but we submit that that is as far as TRIPODI

needed to go and that is as far as it did go.

We submit that the notion of declarations in

furtherance of a conspiracy brings in a broader range

of evidence as the cases show than the res gestae

doctrine would. In TRIPODI there was reference to

the res gestae doctrine because the evidence in

question could be admitted pursuant to that doctrine, but the case does not say that there is not a broader

principle that declarations of co-conspirators can be

admitted even though the res gestae doctrine would

not justify their admission. The rationale behind

the rule stated in terms of a co-conspirators rule,

so far as declarations are concerned, is, however, the

same as the rationale for the acceptance of statements

pursuant to the res gestae doctrine, namely the element

of spontaneity, involvement, pressure, those

justifications that are given in RATTEN's case and

ANDREWS' case, for accepting statements into evidence

that are made as part of the res gestae.

There have been references to the probative

value of declarations of co-conspirators, putting it
in those terms, and we will refer Your Honours to

Wigmore's Evidence in Trials at Cormnon Law, volume 4,

at page 160, where this statement appears:	Moreover, as a matter of probative
value, the admissions of a person
having virtually the same interests
involved and the motive and means
for obtaining knowledge will in general
be likely to be equally worthy of
consideration.

On the same point we refer Your Honours to, without

reading from it, the United States decision of to in the synopsis to the fact that evidence in that category is trustworthy. Your Honours, may we pass to the - - -

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DAWSON J:  So that what that means is that should one

co-conspirator have said, "I am guilty, I conspired",

that admission is said to be an admission on behalf

of all the other co-conspirators that they also

conspired?

MR GRIFFIN:  It would have to be in a different form,

with respect, from "I have conspired", and if it went

further and said, "I have conspired with X and Y" - - -

DAWSON J:	Yes, all right.
MR GRIFFIN:	That would be taken as an admission and

admissible against X and Y, subject to two conditions;

one that the statement is made in furtherance of

the conspiracy. If it cannot be so classified,

then it cannot be admitted.

(Continued on page 86)

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DAWSON J: If it is made in furtherance of the conspiracy

you do not need to get to classified as an

exception to the hearsay rule, or do you?

MR GRIFFIN:  Only if you are prepared to invoke the res

gestae doctrine.

DAWSON J:  You see, the point is an admission of that sort

will never be in furtherance of the conspiracy,
will it?

MR GRIFFIN:	Not in precisely that form but if one can imagine a slightly different statement which would
be, a statement made in the course of a bank robbery, for instance, relating to someone not in the bank - - -
DAWSON J:	But if the statement is admissible because it
is in furtherance of the conspiracy it is not
admissible as to the truth of the statement.
MR GRIFFIN:	In our submission, according to the authorities,

it is. That is the eventual result that one

reaches if the statement is in furtherance of
the conspirancy and there is reasonable evidence,
or prima facie evidence of the involvement of the

person to whom it relates.

DAWSON J:  So you narrow the rule down as having only

application where you want to rely on the truth

of something that is saidi

MR GRIFFIN:  Yes.

DAWSON J: And it does not have to be in furtherance

of a conspiracy by one -

MR GRIFFIN: It has to be in furtherance of a conspiracy

for the rule to apply. That is the effect of the

authorities. Otherwise, if it is a mere narrative

statement it is not admissible.	The other condition
is the one to which we now turn, namely, that

there has to be some evidence of the involvement

of the person against whom it is tendered.

Your Honours, it is submitted that no matter

how the ambit of the rule under consideration is

expressed, there must be a threshold stage. The

only real question is, "What is the standard of proof

involved and is the jury involved in it?", and the

best way to state the reason why there must be

a threshold stage is to quote what Glanville Williams

said in the Criminal Law, The General Part, Second

Edition, at page 681, dealing with the direction

to the jury made by Mr Justice Cussen in ORTON's

case and he said:

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The trouble with this rule is that,

on a narrow interpretation, it is useless,

while on a wide interpretation it runs

counter to the spirit of the law of

evidence. The narrower interpretation may

be exemplified by the following direction

to the jury by an Australian judge:

"Each accused is entitled at the outset

to have the evidence properlX admissible

against him considered alone' -

and just stopping there, that is precisely what

the judge did in the present case, in our submission.

He told the jury at the outset to consider the

case by reference to the evidence properly admissible

against him considered alone -

"and it is only when after such evidence so

considered you find him to be a party to the

conspiracy, if any, that the acts of the other

conspirators can be used against him."

This obviously involves a circular

argument, for it is only when the jury have
decided that the defendant is guilty that

the evidence may be used to confirm that

conclusion. There must be something more

to the rule than this, if it is a rule at

a 11.

The same point was made in very clear terms in

the Victorian case of ZAMPAGLIONE, if I could take

Your Honours to page 306 in the judgment of

Chief Justice Young and Mr Justice Murray, at
about point 2 or 3:

(Continued on page 88)

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MR GRIFFIN (continuing):

It is not the law that the Crown cannot

rely upon evidence of facts -

acts-"facts"is probably a misprint -

and declarations of others unless and until

evidence strictly admissiblP against the
accused proves that that accused was a party

to the conspiracy alleged in a presentment;

if that were the law, it would never be

necessary to rely upon the evidence of the

acts and declarations of othe. s.

The same point is made in the New Zealand case of BUCKTON and in the decision of the Supreme

Court of Canada in CARTER to which ve have already

referred. At this point we can take Ys, Honours

to pages 389 to 390. This passage appears at

page 389 at about point 8, just shortly after

the first passage that I identified earlier in

the report, Your Honours.

WILSON J:  You are on to CARTER now, are you?

MR GRIFFIN: Back to CARTER, yes, Your Honour. It is

immediately after the first quotation that I gave

Your Honours earlier and it reads:

The exception, however, depends on the

preliminary fact of membership in the same

conspiracy. Membership must therefore

be proven before the exception is operative.

Since membership is the gist of the offence,

however, once that is proven the hearsay

exception appears to be unnecessary.

It is only if the preliminary proof of membership is on a standard less than the ordinary standard in criminal cases

that this exception can be brought into

operation without, at the same time, disposing

of the final issue in the matter. Once

the membership has been established on a

lesser burden, then the hearsay evidence

made admissible by the application of the
exception may be considered by the trier
of fact on the issue of proof of the offence

beyond a reasonable doubt.

MASON CJ:  I notice, by the way, at the foot of that page

that the Canadian procedure differs from the

United States procedure where the first stage

is - question is determined by the trial judge

who gives a direction to the jury and his determination,

apparently, is in the nature of a voir dire

determination.

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MR GRIFFIN:  Your Honours, the position in Canada has changed.

In MINUZZO, there is a reference to a case of BARON in which the preliminary decision, so the court held, was to be made by the jury. In the passage on the next page -

MASON CJ: This is in CARTER again, is it?

MR GRIFFIN: Sorry, in CARTER, yes. Perhaps I misled the

Court in relation to BARON but in this decision in CARTER it is stated that the matter ought to

be determined -

MASON CJ: It seems that CARTER decided not to follow the

American approach.

MR GRIFFIN:  Yes. The position in America seems to vary

from jurisdiction to jurisdiction. We do have

a Louisiana case in 1984 to which we refer the

Court - - -

MASON CJ:  I do not think there is any need to dredge up

every decision in the United States.

(Continued on page 90)

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MR GRIFFIN (continuing):  No, but that does appear to be

the position, Your Honour, that it varies from

jurisdiction to jurisdiction. The case in which

DAWSON J: That is generally true of all propositions of

law in the United States.

MR GRIFFIN:  The case in question is the STATE V BENNETT, number 13 on our list of authorities with respect ' -

to this issue. Your Honours, seeing that Your Honours

have CARTER out at this point, could we take you to

the approval by the tort of what Justice Martin

had said in the case of HOBART, which is just about

three-quarters of a page after the passage that I

have just read. The judge said:

Faced with the inherent difficulty posed

by the coincidence of the preliminary fact upon

which the admissibility against an accused of

of acts and declarations of alleged co-conspirators

depends, and the ultimate issue, some American

Courts have evolved a somewhat different approach,

which is exemplified in ..... CARBO V UNITED STATES.

Under this approach the Judge determines

the admissibility of the declarations of alleged

co-conspirators in furtherance of the conspiracy.

The Judge admits the declarations as evidence

if he is satisfied that, accepting the

independent evidence as credible, a prima facie

case (that is, one which would support a finding

that the accused was a participant in the

conspiracy) has been made out. Thereafter,

it is the jury's function to determine whether

the evidence, including the declarations, is

credible and convincing beyond a reasonable

doubt. As I understand the rule, once the Judge

decides that a prima facie case has been made

out by independent evidence (evidence other than

the declarations of alleged co-conspirators), the

independent evidence and the hearsay declarations

of alleged co-conspirators are submitted to the

jury on an equal footing, without any direction

that the jury must find from the independent

evidence that the accused was a party to the

conspirAcy before using the declarations of

alleged co-conspirators against him.

The approach in CARBO V UNITED STATES,

supra, has the apparent advantage of greatly

simplifying the Judge's charge. That advantage

may, however, be more apparent than real and may

only serve to conceal the underlying and

intractable problem.

Moreover, the perceived simplicity of the

CARBO approach is, in my view, counterbalanced

C2Tl0/1/JM	90	20/4/88
Ahern

by the fact that the jury is deprived of the

assistance of the Judge in sorting out the

evidence directly admissible against an
accused and consequently, are left free to

connect the accused with the conspiracy

by hearsay evidence.

Although the rule adopted in CARBO does

not prevent the Judge from separating the

evidence directly admissible against the accused

from the acts and declarations of alleged

co-conspirators, such an exercise is meaningless

where the evidence directly admissible against

an accused and the hearsay acts and declarations

of alleged co-conspirators go to the jury

on the same basis; such a separation is contrary

to the entire approach in that case.

It is true, of course, that under the rule

propounded in CARBO V UNITED STATES, supra, the

accused has the protection that the Judge has

already determined that there is sufficient

independent evidence to support a finding by

the jury that the accused was a party to the

conspiracy. The jury may, none the less, find

the independent evidence sparse and quite

unconvincing, and use a hearsay declaration of

apparently devastating force to connect the

accused with the conspiracy.

DAWSON J:  What is a hearsay act?

MR GRIFFIN: That, as opposed to the hearsay declaration?

DAWSON J:  Yes.

MR GRIFFIN: There is certainly a great logical difficulty

about classifying acts as exceptions to the hearsay

rule.

(Continued on page 92)

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DAWSON J:  They seem to speak about them, do not they?

MR GRIFFIN:  Yes. So, Your Honours, that case is clearly

authority for the proposition that the matter ought
to be left to the jury. There are other authorities
in support of that proposition. There is case of

PUGH, the Queensland case which, interestingly enough, gives little support to FINN AND NIBLOCK, but gives a great deal of support, if one looks at

it, to MINUZZO. In PUGH the evidence in question

was apparently the withdrawal of some money from

a joint bank account maintained by the appellant

and one Wilson-Pogmore. It was held that that

evidence was admissible, and if I can take

Your Honours to the passage at page 258, where

Mr Justice W.B. Campbell, as he then was, at

points E and F, said:

It seems to me that the separate acts of

an individual, on a conspiracy charge, may be

proved for the purpose of showing the existence

of an agreement made by him with another.

This . is, in general, the only way in which the

agreement or concert can be established.	But
once a jury is satisfied

and we emphasise the words, "jury is satisfied,"

that a person is a party to the conspiracy
then the acts of another person, whom they are

also satisfied is a party to it, can be used against the first person if the jury consider

that such acts are done in furtherance of the

cormnon aim.

The other cases which seem to regard it as a jury

matter are ORTON, to which we have referred; OLIVER,

which is referred to on our list of authorities;

BENNETT, to which we have referred; and ROGERS. one

of the American authorities, a decision of states that the matter ought to involve the jury.

DEANE J:  Mr Griffin, can I take you right back to something

that Mr Justice Dawson rejected?

MR GRIFFIN:  Yes.

DEANE J: That is this: what is wrong with the simple

proposition that the independent evidence must

·establish beyond reasonable doubt the existence of an

arrangement and, that having been established, the
evidence of acts and declarations of parties to the

arrangement is admissible to identify precisely what

the terms of the arrangement were?

MR GRIFFIN:  Well, what is wrong with that, we would submit, is

that it really is impossible to determine the first

question without determining who the parties are.

C2Tll/l/VH	92	20/4/88
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DEANE J:	Why?	I mean, take this case: the independent

evidence plainly established that the-applicant was a
party to an arrangement with a number of people

relating to activities and dealings with the shares

and so on, of certain companies.

MR GRIFFIN:  Yes.

DEANE J: That having been established beyond reasonable doubt,

the next step would be that the evidence of what
they all did in relation to those companies was

admissible to show what the arrangement was and

whether it ended at the pre-treatment dumping stage

or whether it went on.

MR GRIFFIN: Yes. In other words, both issues being determined

on the beyond reasonable doubt basis.

DEANE J:	Yes.
MR GRIFFIN:	Yes.

(Continued on page 94)

C2Tll/2/VH	9 3	20/4/88
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DEANE J:	But it just seems to me that a jury would have some
chance of understanding that simple approach.

MR GRIFFIN:  Yes. One cannot tell whether an act is in furtherance

of the conspiracy unless one knows the pur~ose of

the conspiracy, however, Your Honour. There is a

certain logical difficulty about separating out that

first issue.

DEANE J: Well, except -

MR GRIFFIN:  And that is really what this Court said in the

COAL VEND case, at pa~e 402:

Once the combination·and its purposes are

nroverl, the acts of any partv to it in furt~erance

~f those purposes are attributable to all, as

beine within t~e scope and in execution of their

comrnon agreement.

DEANE J:  But that is a final question. I mean, if you prove

beyond reasonable doubt the existence of an arrangement, you have then the basis which you can go to what people

did and it may well be that it will be an issue whether,

as here, the essential issue was whether what was done

at a particular stage was pursuant to the arrangement.

MR GRIFFIN:  Yes. What Your Honour is suggesting also is

inconsistent with what was said in TRIPODI's case

because what was said there, the term used was "once

reasonable evidence of preconcert" is introduced,

that is inconsistent with the notion of that preconcert

being proved beyond reasonable doubt. ·

DAWSON J: Yes, but that was not used in relation to conspiracy.
MR GRIFFIN: Well, that is certainly open to that construction.

DAWSON J: It is plainly not.

MR GRIFFIN:  Our submission is that what the Court said was that it

was relevant to conspiracy and, in fact, was saying

that there was no special rule relating to conspiracy.

The rule relates to all connnon purpose cases.

DAWSON J:  But you cannot - I mean, if you look at the bottom

of page 6:

When that is so -

that is, when it is a conspiracy -

Evidence may readily be let in of what each

party to the conspiracy alleged may do or say

in furtherance of the connnon purpose. But

when a substantive crime, not a conspiracy -

is alleged, then you have to prove some preconcert.

C2Tl2/l/SH	94	20/4/88
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MR GRIFFIN:  Yes.

DAWSON J: Well, it can only be read one way.

MR GRIFFIN:  Yes. Certainly there is a lot to be said for

that approach to it. Your Honours, to conclude,

there are other - it does not seem to be necessary
to deal in any depth with the test being a prima facie

test, the one stated in the authorities, but there are

many authorities that support the proposition that it

is a prima facie test. There is the decision in GUNN

AND HOWDEN, the New South Wales decision. There is -

if I could take Your Honours to that briefly. The

relevant passage is on page 342, in the middle of the

page, Chief Justice Street said:

It is laid down by the authorities that the fact

of a conspiracy must be established, prima facie,

at least, before the acts and declarations of one

can be used in evidence against the others -

The South Australian case of CORAK AND PALMER states a prima facie test. Stephen's Digest of the Law of

Evidence, 12th edition, 1936, states a prima facie

test. So, there is a good deal of support for the

proposition that the threshold question is to be

determined on a prima facie basis.

(Continued on page 96)

C2Tl2/2/SH	95	20/4/88
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MR GRIFFIN (continuing):  So it is our submission that

there is very strong authority supporting all

aspects of the decision in MINUZZO AND WILLIAMS.

We have not taken Your Honours to the actual decision because we have sought to support it and

all the propositions that we have put are really
propositions that are to be found in that case.

And in particular, relevant to the present case,

it is apparent that the case establishes the simple
proposition that the acts and declarations of

co-conspirators are admissible against the accused

and the authority does not support the Queensland
notion of the distinction between evidence going
to the nature and extent of the conspiracy and
evidence going to participation but that the evidence

is admissible for all purposes.

And particularly, if that decision in MINUZZO

is correct, then it is evident that the direction

given here by the trial judge was perfectly

correct and it had the effect that it ensured that

the acts of co-conspirators, of which there was evidence as I indicated yesterday, was not used

in any way by the jury	to connect the applicant
with the conspiracy.	The threshold stage having

been passed, however, the jury was entitled to

consider what the applicant had done in the light

of all of the evidence.

DAWSON J:  Mr Griffin, there was no hearsay involved in this

case, was there?

MR GRIFFIN: There was no hearsay, no, Your Honour. There

was not any hearsay declaration of a devastating

kind, to use that Canadian judge's expression,

or, indeed, of any other kind. None of the alleged

co-conspirators had made any statement to the effect

that the applicant was in the know or anything

of that kind at all. And the evidence did show,

as the schedule that I took Your Honours to

yesterday revealed, that there was a certain

concurrence of time, place and circumstance in

relation to the acts of the applicant and Maher

and Donnelly.

That schedule shows that at the very time

when the companies were being introduced into the

system by the applicant they were being dumped

by Maher, sometimes in the very process of the

purchase where there was a direct sale to the straw

purchaser. In other instances, as the schedule

shows, the shares were transferred by the applicant

to the Maher company on one day and on the very

same day Maher dumped the shares on the straws.

In fact, if one looks at that schedule, one sees

that it is invariably the case that the dumping

C2Tl3/l/ND	96	20/4/88
Ahern

occurred almost immediately after the acquisition

stage and, of course, as I have said, in the case

of the direct sales, the acquisition was itself

the dumping. It was the one transaction and that

part of the transaction was the transaction in

which the appellant was particularly involved. Contrary to what our learned friend said

yesterday, the trial judge did not exclude the

possibility of the evidence as to what the

co-conspirators did from utilization by the jury

on a concurrence of time, place and circumstance

basis. What he said was that that factor, in the

circumstances of the case, would not be enough
taken alone to demonstrate the applicant's complicity.

The relevant passage is at page 403, starting at line 56:

If, as seems likely, you were to find on

comparing the accused's actions with the

steps in the scheme alleged, that there is

a concurrence of time, character, direction
and result, then such concurrence, though

it might in itself give rise to suspicion,

would not, without more, be a sufficient

basis for a finding of guilt. That is

because the mere concurrence of time,

character, direction and result in this case

would not be sufficient to eliminate an

hypothesis consistent with innocence. The

inference of guilt would not be the only

inference open on the evidence. The hypothesis

that the accused was an innocent participant
lacking knowledge that there was no

intention to treat the companies would still

be open. To be satisfied of guilt you would

need to go beyond the evidence which tends

to show a concurrence of time, character,

direction and result and consider in addition

other evidence which you find bears on the

accused's knowledge and his state of mind.

(Continued on page 98)

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MR GRIFFIN (continuing):  Your Honours, finally, I did

indicate yesterday that I would give Your Honours

the reference to that letter in which the applicant
said that the tax in relation to the prior year
in one of the Iraci companies, company 107, for

the purposes of the trial, was inevitable.

The reference is at page 144 in volume 1.

Iraci Industries Pty Ltd.

This company acquired the loan in Iraci

Pty Ltd (formerly P.C. Zanen). It seems

inevitable that Iraci Industries Pty Ltd

will be taxed on the profit on this loan.

The loan was approximately $200,000-00¢.

The cost of the loan that is the purchase

price of the shares was $65,000-00¢ so the

taxable income would be approximately

$135,000-00¢.	The tax on this would be
$60,750-00¢.

Your Honours will recall the significance of

that was that Maher, who was the person who was

going to end up with the shares, was getting

$48,000 out of it and he was to, presumably

on the applicant's case, not only deal with or

treat a current year profits of the company

but he also had to deal with inevitable tax in
relation to a prior year in the amount of
$60,750 which exceeded the amount of his share

of the commission.

Those are our submissions unless there 1s

anything further, if the Court pleases.

MASON CJ:  Thank you, Mr Griffin. Yes, Mr Mulholland?

MR MULHOLLAND:	Your Honours, can we say at the outset that whilst it is, in our submission, quite important
that the law in this area is settled because
of the differing views in relation to the law
in different jurisdictions, the relevance of
the law to the facts of this case is difficult
to discern in view of the concession that the
body of evidenc~ which appears at page 412 of
volume 3 and to which reference has been made,
which was put to the jury as being able to be used by them at the second stage was of no probative
value in determining knowledge of Ahern.
In other words, even if His Honour's directions represent the law, and we will be submitting
to the contrary, directions should not be given
as some sort of standard formula irrespective
of the facts of a particular case and irrespective of the relevance of the evidence in question.

C2Tl4/l/SDL	98	20/4/88
Ahern

There is, in our submission, an inconsistency

1n our friend's submission, that the direction

of His Honour was correct whilst at the same

time maintaining that the evidence in issue was

so obviously irrelevant and obviously so unable

to be used for the purpose of establishing that

Ahern was a party to the conspiracy that the

jury could not have been misled.

If nothing was to be gained by a direction of that sort in the circumstances of this case, then why is it that the prosecution did not say

so at the trial.

Your Honours, on the list is a reference

to the case of ERNST, a decision in Victoria

of Mr Justice McGarvie, (1984) VR 593. That

decision was given before MINUZZO and SOREY although
not referred to in either case. His Honour's

statement in that case at page 597, lines 6 to 8,

is one which, in our submission, has much to

commend it, and that is that:

If a statement of a legal principle is

illogical, there is good reason to doubt

whether it is -

really a principle of the common law.

And that provides a good starting point.

(Continued on page 100)

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MR MULHOLLAND (continuing): It might be an appropriate time

to hand up to Your Honours our outline.

MASON CJ:	Yes.
MR MULHOLLAND:	Your Honours, the point made in paragraph 4 of the outline in relation to principal and agent is
probably not very much different from that raised by
Your Honour Justice Deane with our friend. We, for
our part, could not disagree with the suggestion that if you determine an agreement or arrangement from evidence admissible against the accused, according to the ordinary rules, then he becomes responsible
for any activities of others, even though in his
absence, providing that it is recognized that
the authority is proved beyond a reasonable doubt.
Indeed, there must, in our submission, be the conduct of the principal that one needs to look at
in order to establish whether or not he is responsible for what the agent has done, and there needs, of
course, to be a connection between the principal and
the agent.

Your cannot work from the agent up; it is really

a matter of working from what the principal has said

and done down. Just on that point, although not on

our list, can we refer Your Honours to a decision of

this Court in CRABTREE-VICKERS PTY LTD V

AUSTRALIAN DIRECT MAIL ADVERTISING AND ADDRESSING

COMPANY PTY LTD, (1975) 133 CLR 72, and particularly

Your Honour the Chief Justice and Justices Gibbs and Jacobs,	in the judgment of the Court, consisting of
at page 78, commencing at point 5, and extending to
the end of the page.

It is clear that the reasoning in MINUZZO was

plainly influenced by the Canadian cases, which we will

corre to shortly. Those cases, however, can be seen to differ quite substantially from the law in Australia.

Indeed, the prima facie connection,being required to be

a decision of the trial judge as distinct from a

decision of the jury,goes back to the time of the

QUEEN' s case in the early 19th century, and again, we

will come to that shortly.

Reference was made to CLARKE AND JOHNSTONE,

another Victorian case, (1986) VR 643, the relevant

passages being at page 654, line 22 to page 657, line 17,

and the law as explained in the judgment of the

Full Court of Victoria was, in our submission, all but identical to the law as explained in FINN AND NIBLOCK.

In particular it was said that the acts and declarations

of co-conspirators are admissible and are available to

be used in relation to proof of the existence and

nature of the conspiracy.

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MR MULHOLLAND (continuing):  But the issue in that case was,

of course, whether	or not the accused was a party
to the agreement.	Although it was not a charge of
conspiracy, it was	said specifically that the same
test existed.

Before coming, Your Honours, to MINUZZO, can

we make two points in relation to, in the first

place the COAL VEND case and secondly, TRIPODI.

So far as the COAL VEND case is concerned, that went no further than saying that the acts and

declarations of alleged co-conspirators in the

absence of the accused and not authorized or adopted

by him was admissible to establish the existence and

nature of the conspiracy. And the particular pages

which are relevant are at pages 399 to 402, but it

was an admissibility point and at all stages of the

argument there is the question as to first of all,

whether it is admissible or not, and secondly ;:is

tn thP USP, if admis~ible, that it can be put.

In TRIPODI's case, in our submission, the point was even more narrow. Again it is an

admissibility case, and there is nothing, in our

submission, which goes beyond saying that the

evidence may be used to establish the existence and

nature of the consoiracy. Inneen, it seems to be

more narrow than that hec~usP in that case the use

was confined to the proof of combination and we

refer particularly to page 6 point 5 in the passage there

to page 7 point 2.

There is, in our submission, good reason,

quite apart from the question of principle,for

saving that the prima facie connection should not

be made by trial judge and in this regard we rely
particularly upon what His Honour Justice Matthews

said in the Court of Criminal Appeal in Queensland.
His Honour said really two things, that despite

the respect that he had for the intelligence of jurors

it would certainly not be easy to follow prima facie,

and secondly, the application of a two-stage test

would be likely to confuse them.

Prima facie is generally recognized as being

a question of law and it conveys usually to a lawyer

this: could a reasonable jury properly instructed

in relation to the law be satisified in relation to

~ particul~r matter. And put r.hat way it can, in our

submission, be seen as quite inappropriate for a

jury to be using the formula and asking itself that

question.

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MR MULHOLLAND:  Coming to MINUZZO, the judgment

of the Chief Justice of Victoria

up to which on this particular matter starts

page 429, line 24, and down to page 430, line 41,

involves, in our submission, saying no more than

that the evidence of conduct of a number of persons
alleged to be co-conspirators which supports an

inference which is relevant to the offence charged

may be used for the purpose of supporting that

inference, notwithstanding that some of the acts take

place in the absence of the accused and, more

particularly, that if the conduct of alleged

co-conspirators logically supports an inference of

agreement or combination, then it may be received for

that purpose, although the accused was not present

when the conduct occurred.

The attention up to that point is directed to

the admissibility for the purpose of proving what

is variously described in the Chief Justice's judgment

as a combination or agreement, that is to say it

is directed to the existence of the conspiracy.

In the next passage His Honour goes on - this is at

page 430, line 42:

But such evidence may also be received

upon another basis or used for another purpose as well. Evidence of the acts

and declarations of one alleged

co-conspirator, even though not done or
made in the presence of another
co-conspirator,may be received against the

other alleged co-conspirators provided

only that the acts or declarations are

in furtherance of the common purpose.

That may be regarded as being perfectly consistent

with FINN AND NIBLOCK, provided that this important

qualification is given to it, that in the statement

just read of the Chief Justice, is taken as saying

that the fact that the acts and declarations are done

in furtherance of the common purpose provides an

independent basis of receipt. It is our submission

that it is only the acts and declarations done in

furtherance of the common purpose which may be

received on any basis and that the acts and declarations

spoken of as being admissible to establish the fact
of combination or agreement, or conspiracy, are only

acts or declarations apparently done in furtherance

of the common purpose. His Honour goes on from there,

although not at that point, to say that such acts

and declarations may be used to show the nature or

terms or extent of the combination, and that,

Your Honours, appears at the foot of page 432 and the

top of page 433. The Chief Justice of Victoria there

says, commencing at line 42:

In some cases it may be convenient to

give the jury a copy of the overt acts

C2Tl7/l/HS	102 MR MULHOLLAND, QC	20/4/88
Ahern

alleged by the Crown a~ainst each

accused after eliminating from them

such acts as have not been supported

by any evidence. The jury might

then be told that if upon a consideration

of the evidence of those acts and other

admissible evidence such as a statement

from the dock or answers given to police

questions, they concluded that there was

prima facie evidence of an association or

understanding between the particular

accused and one or more of the others to

combine together to carry out a common

plan to achieve an unlawful purpose,

they might then consider the acts and

declarations of the others in furtherance

of the common plan, for the purpose of

determining exactly what the plan was and

whether they were satisfied beyond

reasonable doubt of the guilt of the

particular accused.

(Continued on page 104)

C2Tl7/2/HS	103
Ahern
MR MULHOLLAND (continuing):	Can we go from there back,

Your Honours, to page 431 because it is here that

His Honour raises the three classes. He says:

An accused person is entitled to have

his case considered upon the evidence

admissible against him. In a conspiracy case

such as the present there are three classes

of evidence to be considered, namely (a)

evidence of the acts and declarations of

the accused whose case is being considered,

Your Honours, before leaving the point of agency,

can we just refer briefly to O'CONNELL's case, at

pages 602 and 693, where this makes the same point,

connnencing at the foot of the page in the right-hand

column:

That all the defendants, as members of this

body, were combined together for a connnon

purpose, has not been denied upon this trial

by any of them. They glory in their being

to effect the repeal of the Union.

leading members of the National Repeal combination

The matter in difference between them and

or non-existence of a combination to which	the Attorney General is not the existence_
they are parties; but it is as to the legality
or criminality of that combination.

(Continued on page 116)

C2T24/l/VH	115
Ahern

MR MULHOLLAND (continuing):  Your Honours, can we come to

FINN AND NIBLOCK which establishes these propositions,

in our submission. Firstly, the only acts and declarations of alleged co-conspirators in the absence of an accused not shown to have been directed
or authorized by him which are admissible against the

accused are those which are done in furtherance of

a conspiracy; secondly, the reason why they are

admissible explains why only those acts and

declarations are admissible, that is that it is only

such acts and declarations which may logically

support an inference that there was a conspiracy

and as to its nature and terms; thirdly, such

evidence may be used to establish the existence of

the conspiracy, its nature and terms of which it is

logically probative, but not that a particular

accused was a party to a conspiracy, not being

logically probative of that issue.

Rather than take Your Honour's time reading

at length from the judgment, can we refer Your Honours

to particular passages, firstly at page 214,

lines 26 to 36, page 215, lines 29 to 39, page 216, particularly at lines 26 to 39, but in referring to that page can we also draw Your Honour's attention

to the passage which is at lines 13 to 19 which is
in these terms:

Participation by the accused in the alleged conspiracy can therefore be established

only by evidence of his own acts or

admissions and not by the acts or

admissions of others, except to the

extent that they are shown to have been

authorized or adopted by the accused

himself. Until such participation is

established, the acts of others are

available only to show the existence of

an agreement and its nature or terms.

Your Honour the Chief Justice asked me at one point

how the trial judge in this case came to not follow

Queensland authority. The point is that in that

paragraph His Honour read "until" as meaning that

the whole of the judgment was consistent with MINUZZO,

His Honour contemplating the sort of test in

MINUZZO.

(Continued on page 117)

C2T25/l/HS	116
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MR MULHOLLAND (continuing): We simply submit that it is

clear, indeed from the same paragraph, that that

is not what His Honour is saying and it is abundantly

clear from the rest of the case. In anv case it

could not be right because once the participation

is established you do not need the acts and

declarations of the co-conspirators. Then the

passage at page 219, lines 3 to 8 and 25 to 37.

The proviso was applied in that case with two exceptions;

neither appellant was able to point to particular

evidence as being inadmissible for the purpose

of showing his part in the conspiracy.	As to the
two pieces of evidence:	in relation to the first

it was held that His Honour correctly directed

the jury as to the limited use which could be made

of it - that is at page 221, lines 20 to 25

and in relation to the second piece of evidence,

it represented only a few lines in a trial

covering 17 sitting days and a total of 900

pages of transcript. It was not referred

to in the summing up, and no redirection was

sought -

that is at page 221, lines 41 to 45.

The approach in FINN AND NIBLOCK in relation

to the purpose for which the evidence can be used

being to establish the conspiracy and its nature

is, conceptually, more difficult in the two-man

conspiracy than a conspiracy involving more than

two. But His Honour Mr Justice McPherson held

that there was no reason in logic why it should

not also be done in a two-man conspiracy that the
jury be first of all asked to :look at whether or

not the agreement was proved and then come to the

question as to whether or not the particular

accused was a member of the conspiracy.

And, finally, Your Honours, may we refer to the unreported Queensland case of MOORE. Again, we do not propose to take Your Honours to it but

to refer to - or give reference to the relevant
pages.	They are at page 6 to page 11 of

Mr Justice McPherson's judgment, that judgment

being agreed in by the other two members of the court, Senior Puisne Judge Mr Justice Kelly and

Mr Justice Macrossan. Although Mr Justice Macrossan

delivered a separate judgment, he specifically

agreed with the reasons and the sort of problems

that a slavish application of the direction which

was given in this case can be seen from

pages 10 and 11 of that judgment, where the

declarations of the alleged co-conspirator were

allowed to be used against Moore.

C2T26/l/AC	117	20/4/88
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Your Honours will see without me referring

to them, they appear from half-way down the page

and there are three of them - three statements.

His Honour goes on to say - on page 11:

that the statement in question was not to

be regarded as evidence of the truth of the

assertion involved in it but only as original

evidence from which the fact of the conspiracy

or its purpose might be inferred.

Those are our submissions, Your Honour.

MASON CJ:  Thank you, Mr Mulholland.

(Continued on page 119)

C2T26/2/AC	118	20/4/88
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DEANE J:	Mr Mulholland, before you sit down, can I take you
for a moment to page 101 of the appeal book, which
is the chart that Mr Griffin referred to? It is something that is puzzling me about the situation
if one were to reach the proviso point here, and
this is, if what happened pursuant to the arrangement
between your client and Maher was that $261,565,
representing the assets of HQ Estates,was
distributed as dividends down the line without making
allowance for the presumptive debt of the Commissioner
of Taxation on the 200,000 that had been earned and
without taking steps to protect the commissioner in
relation to that presumptive debt, what does it
matter whether your client knew what was ultimately
happening? Is it not enough that he took no steps
to ensure that the presumptive creditor was protected
when he was a party to depriving the company of all
its assets?
J:.1R MULHOLLAND:	Your Honour, the money ended up not only going

to the Waymouth Trust, or a share of it, but also

going to what can be classed as the vendor shareholders.

DEANE J: Yes, except we are told they did not know that your

client's company was getting the 21,690 and one is

led to think that they probably did not know - - -

J:.1R MULHOLLAND:	Your Honour, they did not care.
DEANE J:	- - - the details of all these steps down.
J:.1R MULHOLLAND:	Your Honour, the position of the vendor

shareholders v~ry 1ar 0 ely was that from their

point of view it did not matter to them. They believed

that there would be some treatment, some loss, which

by the time that the end of the financial year was

reached would mean that there would be no tax payable.

DEANE J:	But the extent of their knowledge and the extent of
their involvement may be a different question, but
what I am asking you is this: why, if your client
was an active party in stripping a company of its
assets where there was a presumptive debt owing to
the Conunissioner of Taxation for which no provision or protection at all was made, is it necessary to go beyond saying, "and he did nothing to ensure
that the company would have funds to pay that debt."?
J:.1R MULHOLLAND:	Your Honour, it only would become a debt if

the same position existed at the end of the financial

year.

DEANE J: But, I mean the position is the company had earned

$200,000 which,unless something happened, a $100,000-odd

would be payable income tax. Well, now if the people

concerned stripped the company of all its assets

C2T27/l/JM	119	20/4/88
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without doing anything to avoid or provide for the

liability to the commissioner, why is not that

a criminal conspiracy?

MR MULHOLLAND:  Because the explanation given by Ahern was

that he saw the purchaser -and therP waR a lot of

evidence about this -as part of the Maher organization

and that the Maher organization was going to attend
to that. So, at the end of the financial year it

would not result in the necessity to protect the

commissioner becuase there would be no debt which

arose.

(Continued on page 121)

C2T27/2/JM	120	20/4/88
Ahern

DEANE J: So, is the proposition this: that if the people

in control of a company take all its assets without

taking steps to protect creditors and presumptive

creditors, it is not a criminal conspiracy if they

think that somebody might do something sometime in

the future to avoid the liability to the creditors?

MR MULHOLLAND:  Well, that was not the question in this case,

Your Honour.

DEANE J:  It seems to me to be a pretty close description of

your client's actions as you put them.

MR MULHOLLAND:  Your Honour, a solicitor, I should add, was also

acting in this transaction, and had the same belief.

Mr Ahern has not been tried on the basis of what

Your Honour is now putting to me.	He was tried on
an entirely different basis.

DEANE J:	But if one comes to provide the proviso in a case
where what has been· suggested is that wrong directions were given about knowledge, may it not be relevant if
one's impression is that knowledge was quite unnecessary
to prove guilt of the criminal conspiracy alleged?
MR MULHOLLAND:	Your,.-Honour, in our submission, knowledge,

in the sense of proving him to be a knowing participant,

would always be necessary in a conspiracy to defraud,

because it is a question of proving deliberate dishonesty.

DEANE J:	I do not want to take time; I was speaking in shorthand.
I meant there is no doubt that your client had
knowledge that the company was being stripped of its assets; that no protection was being made in respect of the prospective creditor, the Commissioner of
'J:axation.
MR MULHOLLAND:	Yes.
DEANE J:	Now, the knowledge I was referring to was the knowledge
that, in fact, nothing was subsequently done to protect the ,:ommissioner or to avoid his liability.

MR MULHOLLAND:  Yes. Your Honour, whilst not wanting to labour

the point, it was always conceded by the prosecution
throughout the trial that the stripping exercise was

not a fraud. He was never charged with that, Your

Honour, and it was conceded that if the matter stopped

there, then it would not have been a fraud.

DEANE J:	But the agreement to strip must have been the fraud.
There is no fraud on the Commissioner of T:axation in
dumping a company instead of treating it. The fraud was taking all its assets.
MR MULHOLLAND:	With the knowledge, the requisite knowledge; the mental element has to be there as well.
C2T28/l/VH	121
Ahern

DEANE J: Well, that brings us back. Is the mental element

with the knowledge that no steps are being taken

and without arranging for steps, or is the mental

element excluded if the people in control think,

"Something will turn up and Maher will do something

about it"?

MR MULHOLLAND:  That really is a matter, in our submission,

that must, as in relation to every criminal charge,

be determined by the jury. One cannot make an

exception because this is a bottom of the harbour

case and say that Mr Ahern need not have had that

question resolved by the jury. It was for the jury to decide whether or not he had the knowledge, upon the evidence which was relevant to that point.

(Continued on page 123)

C2T28/2/VH	122
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DEANE J: As I say, I do not want to take time. I just thought

I should bring it to your attention, though, because

it is something that is operating in my mind.

MR :MULHOLLAND: Yes. Well, Your Honour, really, if the position

be that the case, were it to be decided on that basis,

it would mean that, really, the applicant has never

had a trial at all. He has never had the point

determined by the jury.

DEANE J: Well, it might mean that if he was the knowing party,

to what appears on 101 without taking steps to protect

the interests of creditors, he should have pleaded

guilty.

MR MULHOLLAND:	Well, yes.
DEANE J:	Because that would involve the conspiracy to defraud the c~nnnissioner which is alleged and with which he
was charged.
MR MULHOLLAND:	Yes, but, of course, that is not what he was

charged with and -

DEANE J: Well, it is not the way the case was conducted and I

fully appreciate the force of what you say.

MR MULHOLLAND:  Your Honour, I cannot take it any further than

to say.that every person is entitled to have a trial

according to law and that what one really needs to do

in this case is put aside entirely the three-month's

trial and the way in which theirosecution conducted

itself and what it conceded and to say, "Well, whatever

is the case there"-and the fact that the Court of

Criminal Appeal did not decide the case on the basis of it being an overwhelming case -'that this Court

will not interfere with the application of the proviso

for that reaso~'and we would submit that if that were

to result, then it would mean that Ahern has not had

a trial according to law.

DEANE J:	Thank you.
MASON CJ: Yes, thank you, Mr Mulholland.

MR GRIFFIN: If the Court pleases. With respect to that last

point, Your Honours, the prosecution made no concessions. The particulars of the conspiracy are set out at pages394

to 395 in volume 3. They are in the summing up by the

learned trial judge and, as he said:

The Crown has particularised the object of the

alleged conspiracy as follows: between

January 1974 and July 1978 the accused Ahern with

Maher, Donnelly and/or Hurley arranged for the

transfer of shares in companies which had profits

for the current financial year and thus a

contingent tax liability at the time of transfer

in order:

C2T29/l/SH	123	20/4/88
Ahern

(a) To make a profit by appropriating for

their own use and benefit part, at least,

of the money in the possession of those

companies that would otherwise be paid or

payable by the companies to the Commonwealth

in respect of income tax for the financial

year in which the shares were so transferred,

and

(b) To deny the companies the capacity to

discharge their obligations to pay income tax in respect of the financial year in which the

shares were so transferred.

Now, what happened in the course of the trial wa.s that a number of witnesses, including many of those

who were called for the prosecution, said that they

were aware of various ways of introducing losses or

otherwise treating companies. They were aware of

the existence of various schemes, some of which had

been given the imprimatur of the courts and, on that

footing, the trial judge held that the mere removal of the companies' funds in the event that there was

in existence a belief that such a scheme would be

introduced; that, in that circumstance, the accused
could not be said to have acted dishonestly if the
matter stopped there and that is why he considered

that in the circumstances of the case, knowledge of

the dumping was essential.

Your Honours, just a couple of other points.

MOORE's case is now reported in - - -

(Continued on page 125)

C2T29/2/SH	20/4/88
Ahern	124
MASON CJ:	You do not have a right of reply, do you,

Mr Griffin?

MR GRIFFIN:  Perhaps not, Your Honour. I am in the Court's

hands.

MASON CJ:  Yes, you are replying on your notice of contention.

MR GRIFFIN:  Yes, I am. MOORE's case is (1988) Qd R 252.

So far as the old cases to which my learned friend

referred, we would simply endorse the remark made by

Mr Justice Thomas at page 528 that:

In the vast majority of cases once
such evidence was allowed to go to the
jury it was simply told that it might

use the evidence "against" the accused.

In truth, in none of these cases was

the present question directly raised

or considered.

Finally, it is submitted that MINUZZO is in no

way inconsistent with THE QUEEN's case. The passage

which was referred to is simply, in our submission,

at least so far as there is the reference to the trial

judge bringing the trial to an end in limine,

is simply a direction, or an instruction to trial

judges as to how to treat the case if there is no

case against the accused. It says nothing, in our

submission, about the role that the jury is to play

if the matter proceeds.	Those are our submissions,
if the Court pleases.
The Court will consider its

MASON CJ:  Thank you, Mr Griffin.

decision in this matter.

AT 12.02 PM THE MATTER WAS ADJOURNED SINE DIE

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Ahern