Chung v The Queen

[2007] NSWCCA 231

Reported Decision: (2007) 25 ACLC 1,132

New South Wales

Court of Criminal Appeal

CITATION:	Francisco CHUNG v Regina [2007] NSWCCA 231
HEARING DATE(S):	5 July 2007
JUDGMENT DATE:	2 August 2007
JUDGMENT OF:	Spigelman CJ at 1; Hislop J at 65; Harrison J at 66
DECISION:	1 Grant leave to appeal; 2 Appeal dismissed.
CATCHWORDS:	SENTENCING - Dishonesty offences - Appellant convicted of conspiracy to cheat and defraud - Appellant not convicted of substantive offence – guilty plea – whether offence nonexistent because statute has overridden common law – effect of Corporations Act 2001 (Cth) s 184(2) and Criminal Code Act 1995 (Cth) Div 11.5 – no intention to displace common law - CRIMINAL LAW – Practice and Procedure - Prosecution – Powers of the prosecution – discretion to select appropriate charge – principle of non interference by courts
LEGISLATION CITED:	Constitution s109 Corporations Act 2001 (Cth) s5E, s 9, s 184(2), s 184(3), s 185a), s 1308A, s 1311(2) Crimes Act 1912 (Cth) s 29D, s 86, s 86A Criminal Appeal Act 1912 s 5F Criminal Code Act 1998 (Cth) Div 11.5 (1), Div 11.5(7A), Div 11.6(1), Div 135.4
CASES CITED:	Chow v DPP (1992) 28 NSWLR 593 Felton v Mulligan (1971) 124 CLR 367 Maxwell v The Queen (1996) 184 CLR 501 Peters v The Queen (1998) 192 CLR 493 R v El-Kotob (2002) 4 VR 546 R v McCready (1985) 20 A Crim R 32 The Queen v Hoar (1981) 148 CLR 32 Weininger v The Queen (2003) 212 CLR 629
PARTIES:	Francisco Chung (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/1166
COUNSEL:	G D Wendler (Appellant) W Dawe QC (Respondent)
SOLICITORS:	K S Van Houten, Van Houten Solicitors (Appellant) K Frearson, S C Kavanagh Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/21/0264
LOWER COURT JUDICIAL OFFICER:	Coorey DCJ
LOWER COURT DATE OF DECISION:	30 March 2007

- 12 -

2007/1166

SPIGELMAN CJ
HISLOP J
HARRISON J

Thursday 2 August 2007

Francisco CHUNG v REGINA

Judgment

1 SPIGELMAN CJ: The Applicant pleaded guilty to one count of conspiracy to cheat and defraud. He was an employee of Westpac who transferred a software template to external parties, which enabled them to access specific accounts and transfer funds from them. Those persons used the access so provided to defraud Westpac and its customers of more than US$3.5 million and A$1.1 million.

2 After plea, but prior to sentence, the Applicant challenged the jurisdiction of the District Court to hear and determine the matter. The challenge was based on the proposition that the common law offence of conspiracy to cheat and defraud has been “repealed” by s184(2) and (3) of the Corporations Act 2001 (Cth) in combination with provisions of the Criminal Code Act 1998 (Cth). The Applicant contends that these provisions of Commonwealth acts constitute an implied “repeal” of the common law offence of conspiracy to cheat and defraud with respect to, relevantly, employees of a corporation, presumably, although the scope of the “repeal” was never identified, where the target of the fraud is the corporation which employs them.

3 The Applicant contends, that he has pleaded guilty to an offence that does not exist. The practical import of his contention, if correct, is that the penalty for the common law offence is at large, whereas the statutory offence carries a maximum penalty of five years imprisonment and/or a fine of up to $200,000.

4 The issue is one of statutory interpretation as to whether or not the Commonwealth statute overrides or displaces the common law. The language of “repeal”, employed by the Applicant, should be confined to statutes.

5 Alternatively, the Applicant contends that it is an abuse of process to proceed with a conspiracy charge when legislation covers the field of the Applicant’s criminality. He submits it is an abuse of prosecutorial discretion to charge common law conspiracy which exposes the Applicant to punishment at large, when the statutory offence has a maximum penalty of five years.

6 Coorey DCJ rejected the Applicant’s submissions. The Applicant seeks leave to appeal pursuant to s5F of the Criminal Appeal Act 1912.

The Statute

7 Although reliance is placed only on subs (2) and (3) of s184, I will set out the section in full:

“184(1) A director or other officer of a corporation commits an offence if they:
(a) are reckless; or
(b) are intentionally dishonest;
and fail to exercise their powers and discharge their duties:
(c) in good faith in the best interests of the corporation; or
(d) for a proper purpose.
(2) A director, other officer or employee of a corporation commits an offence if they use their position dishonestly:
(a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or
(b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.
(3) A person who obtains information because they are, or have been, a director or other officer or employee of a corporation commits an offence if they use the information dishonestly:
(a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or
(b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.”

8 It is also pertinent to note s185 which, relevantly, states:

“185 Sections 180 to 184:
(a) have effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of their office or employment in relation to a corporation; and
(b) do not prevent the commencement of civil proceedings for a breach of duty or in respect of a liability referred to in paragraph (a).”

9 Reference was also made to s5E of the Corporations Act which relevantly provides:

“5E(1) The Corporations legislation is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2) Without limiting subsection (1), the Corporations legislation is not intended to exclude or limit the concurrent operation of a law of a State or Territory that:
(a) imposes additional obligations or liabilities (whether criminal or civil) on:
(i) a director or other officer of a company or other corporation; or
(ii) a company or other body; or
…
(3) Without limiting subsection (2), a reference in that subsection to a law of a State or Territory imposing obligations or liabilities, or conferring powers, includes a reference to a law of a State or Territory imposing obligations or liabilities, or conferring powers, by reference to the State or Territory in which a company is taken to be registered.
(4) This section does not apply to the law of the State or Territory if there is a direct inconsistency between the Corporations legislation and that law.
(5) If:
(a) an act or omission of a person is both an offence against the Corporations legislation and an offence under the law of a State or Territory; and
(b) the person is convicted of either of those offences;
the person is not liable to be convicted of the other of those offences.”

10 With respect to the application of s5E, an issue has arisen as to whether or not the reference to “any law of the State” encompasses the common law when, as was established by High Court authority at the time of the enactment of this section, there was only a single common law of Australia. No such issue arises with respect to the reference “any rule of law” in s185(a).

11 However, the formulation “law of a State” in s5E is the subject of definition in s9 of the Act which provides:

“law of a State … means a law of, or in force in, the State …”

12 The Applicant refers to s1311 of the Corporations Act, which provides:

“(2) Subject to section 1312, a person who is guilty of an offence against this Act, … is punishable, on conviction, by a penalty not exceeding the penalty applicable to the offence.”

13 Schedule 3 of the Act provides that the maximum penalty for a contravention of s184 is five years imprisonment or 2,000 penalty units.

14 Section 1308A of the Corporations Act provides:

“Subject to this Act, Chapter 2 of the Criminal Code applies to all offences against this Act.”

15 The Applicant relies on Div 11.5 and Div 11.6 in Ch 2 of the Commonwealth Criminal Code as follows:

“11.5 Conspiracy
(1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.
(2) For the person to be guilty:
(a) the person must have entered into an agreement with one or more other persons; and
(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
(2A) Subsection (2) has effect subject to subsection (7A).
(3) A person may be found guilty of conspiracy to commit an offence even if:
(a) committing the offence is impossible; or
(b) the only other party to the agreement is a body corporate; or
(c) each other party to the agreement is at least one of the following:
(i) a person who is not criminally responsible;
(ii) a person for whose benefit or protection the offence exists; or
(d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy.
(4) A person cannot be found guilty of conspiracy to commit an offence if:
(a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or
(b) he or she is a person for whose benefit or protection the offence exists.
(5) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person:
(a) withdrew from the agreement; and
(b) took all reasonable steps to prevent the commission of the offence.
(6) A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.
(7) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(7A) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
(8) Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given.”
11.6(1) A reference in a law of the Commonwealth to an offence against a law of the Commonwealth (including this Code) includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to such an offence.

16 For present purposes the most relevant combination is that of s184(2) of the Corporations Act and Div 11.5(1) of the Criminal Code. Div 11.5(1) relates back to s184(2) to create an offence of conspiring to commit s184(2), carrying with it the same penalty as s184(2). Section 184(3), on which the Applicant also relied, distinguishing use of information from use of position, does not really add anything for present purposes. It is convenient to refer to s184(2) below.

17 The Applicant contends that, by the combined operation of s184(2) and (3); 1311(2); the Schedule of the Corporations Act, and Ch 2 of the Criminal Code, particularly Divs 11.5(1), (7A) and 11.6(1), the common law offence of conspiracy to cheat and defraud has been implicitly repealed insofar as it concerns or relates to directors, officers and employees of a corporation who dishonestly use their position, or use information, to, relevantly, “gain an advantage for someone else”. Insofar as any inconsistency is required, the Applicant relies on the fact that penalty is at large for the common law conspiracy, but there is a maximum penalty under s184(2) and (3) and, by force of Div 11.5 of the Criminal Code, for conspiracy to contravene s184.

Is the Common Law Offence Displaced?

18 Plainly a valid Commonwealth statute may override or displace the common law and, accordingly, a common law offence may cease to exist either completely or with respect to a particular sphere of activity. The Applicant’s submissions in this respect were phrased in terms of whether s184, in combination with other provisions “implicitly repealed the common law offence of conspiracy to cheat and defraud” with respect to an undefined sphere of activity but, it was submitted, sufficient to “encompass the criminality of the Applicant”.

19 The Applicant’s submissions did not rise above the proposition that, in the circumstances, the Applicant could have been charged with offences under s184 and, perhaps, with conspiracy to commit an offence under s184, by reason of the combined effect of the sections of the Corporations Act and of the Criminal Code that I have set out above. That is not an adequate basis for concluding that Parliament intended to cover the relevant field – whatever that may be – when enacting either Act.

20 With respect to the Corporations Act itself, in my opinion, it is extremely unlikely that Parliament intended by implication to override one of the most well known offences of the common law. None of the drafters of the provisions of the Corporations Act could possibly have been unaware of the existence of the offence of conspiracy to defraud. Section 184 reflects provisions that have been present in Australian corporations legislation, as modified from time to time, for almost fifty years. The applicability of the criminal law to those provisions has been considered from time to time. When these provisions were re-enacted in 2001, for the first time as a Commonwealth act, pursuant in part to a reference of power from the States, there was no suggestion that the criminal law application of these provisions had changed in any respect.

21 These provisions of the Corporations Act are particular examples of a large number of statutory offences involving dishonesty under both State and Commonwealth law. The interaction between substantive offences, especially fraud offences, and charges of conspiracy, especially conspiracy to defraud, has been the subject of a considerable body of judicial decision and legal commentary over many years. (A range of provisions is considered in Alex Steel, “From ‘Hard Labour’ to Spies v The Queen: Prosecuting Corporate Officers under the Crimes Act” (2001) 75 ALJ 479.) It is not likely that such a matter was intended to be resolved implicitly by Parliament at the time of the enactment of the Corporations Act.

22 My conclusion is reinforced by the particular provisions of the Act which clearly indicate that Parliament did not intend to cover the field with respect to the liability of directors and employees of corporations, save in the case of direct inconsistency.

23 As par 5E(2)(a) of the Corporations Act provides, the Act did not exclude or limit the concurrent operation of the law of a State, including expressly liabilities under the criminal law of the State. No doubt one of the principal objectives of s5E was to ensure that there would be no inconsistency under s109 of The Constitution, save in the case of a direct inconsistency as provided for in s5E(4). In the s109 context the words “law of the State” means a statute or subordinate legislation. (As indicated by Walsh J in the course of argument in Felton v Mulligan (1971) 124 CLR 367 at 370.) However, s9 of the Corporations Act contains a particular definition of “law of the State” which extends beyond the terminology of “a law of the State” to encompass a “law in force in the State”. This definition indicates that s5E was not concerned only with s109 inconsistency.

24 In my opinion, the common law offence of conspiracy to defraud is a “law in force” in New South Wales within the meaning of s9. Accordingly, this offence is preserved by express statutory provision. The Corporations Act, like its State based predecessors, was not intended to be a complete, code-like, set of provisions designed to protect corporations from fraud by the range of persons to whom s184 relates.

25 Counsel for the Applicants sought to invoke s5E(4) by submitting that there was a “direct inconsistency” between s184 and the common law offence on the basis that it imposes a maximum penalty of five years whereas the penalty for the common law offence is at large. The maximum penalty, by reason of the provisions I have referred to above, applies to a conspiracy to contravene s184 as and from the later time that the Criminal Code applied to Corporations Act offences.

26 In my opinion, there is no inconsistency within the meaning of s5E(4). Alternative maximum sentences are not a relevant inconsistency, particularly where, as will often be the case, a single conspiracy charge may encompass more than one substantive offence.

27 There are numerous statutory dishonesty offences. Conduct contravening one of these offences may also constitute overt acts of an offence of conspiracy to defraud. Indeed, it may well have been the case in the present situation, that there was more than one contravention of the statutory provision, each of which was an overt act of the conspiracy to defraud. In any event there is no inconsistency.

28 For these reasons, the Applicant’s contentions insofar as they are based on the Corporations Act should be rejected.

29 The same result may follow under s185, which indicates that, relevantly, s184 has effect in addition to “any rule of law”. That phrase is perfectly capable of extending to liabilities arising at common law, including criminal liabilities. There is a reference to civil proceedings in s185(b), but it does not appear to me that the use of the conjunctive “and” between pars (a) and (b) is such as to suggest that the whole of s185 is directed to civil liabilities only. However, this has not been the subject of detailed submissions in this Court and I do not need to decide the case on this basis.

30 Even if I were wrong in my above conclusion, with respect to the direct application of s9, the combined effect of s5E, in the light of the extended definition of “law of the State” in s9, together with s185(a), would lead to the conclusion that the Parliament of the Commonwealth did not intend that the liabilities created under the Corporations Act, including the criminal offences created by that Act, should operate to the exclusion of liabilities, including criminal liabilities, created under other statutes or at common law. It would be sufficient for present purposes to rely on the general intention of Parliament reflected in these sections, without concluding that s5E(2) is directly applicable to the circumstances of the present case.

31 In my opinion, these provisions reaffirm the unlikelihood that Parliament would override so well known a common law offence by implication. The Court received no submissions indicating that anything in the history or scope and purpose of the Corporations Act suggested any such intention.

The Effect of the Criminal Code

32 The Applicant relies on the combined effect of the Commonwealth Criminal Code and the Corporations Act. That raises more difficult issues, few of which have been the subject of submissions, but which must be dealt with.

33 The issue is whether the Commonwealth Parliament intended to displace the common law offence of conspiracy to defraud a corporation in a pertinent respect. Although this respect was only generally delineated, I proceed on the basis that some form of precise delineation would be possible.

34 The Commonwealth Criminal Code (the “CCC”) enacted in 1995 was applied to all Commonwealth offences from 15 December 2001. Chapter 2 of the Criminal Code, relevantly Div 11.5 in Pt 2.4, applies to Corporations Act offences after that date.

35 Chapter 2 has its origins in a Report of the Criminal Law Officers Committee, (later the Model Criminal Code Officers Committee “MCCOC”) of December 1992 entitled Model Criminal Code: Chapters 1 and 2 General Principles of Criminal Responsibility (the “MCCOC Chapter 2 Report”). It is particularly important to keep in mind that the scope and purpose of the Model Criminal Code (the “MCC”) is quite distinct from that of the CCC. The MCC is intended to be a model capable of adoption by any jurisdiction. The CCC represents the adoption by the Commonwealth of the MCC within its jurisdiction which, relevantly, extends to making laws with respect to corporations. The MCC was, and remains, a work in progress with new chapters appearing from time to time.

36 At the time of the MCCOC Report the position for the Commonwealth was that the Crimes Act 1912 (Cth) made separate provision for conspiracy to, inter alia, commit a Commonwealth offence, (s86) and conspiracy to defraud the Commonwealth (s86A) and did so even though defrauding the Commonwealth was itself an offence (s29D).

37 In 1995, when the Commonwealth enacted Chapter 2 of the MCC as the CCC, it allowed for the subsequent commencement of the CCC, which was not to occur for five years, subsequently extended by 18 months, by enacting its provisions in the Crimes Act. That was done by repealing both s86 and s86A and enacting Div 11.5 of the CCC as a new s86 under the Crimes Act, until the CCC took effect. By reason of the continued existence of s29D, the new s86 applied to make a conspiracy to defraud the Commonwealth an offence by the combined effect of s86 and s29D.

38 It is significant that at this time, indeed at all subsequent times, there was no suggestion that the Commonwealth intended to exercise the full scope of its constitutional powers in this respect.

39 Although there is no express reference to what was proposed to be done with conspiracy to defraud in the MCCOC Chapter 2 Report, it appears from subsequent references that this was to be considered in Chapter 3. This occurred in the report entitled Model Criminal Code Chapter 3 Theft, Fraud, Bribery and Related Offences December 1995, with respect to which there was a delayed special report entitled Model Criminal Code Chapter 3 Conspiracy to Defraud May 1997.

40 In the latter, the Committee indicated its agenda in the following passage at 27, when discussing a report of the UK Law Commission:

“The Law Commission also reached the conclusion that conspiracy to defraud should be retained, at least pending its review of dishonesty offences generally, although it proposes continued reliance on the common law. To rely on the common law would not be consistent with the nature of the MCC project, nor would it deal with the uncertain and extremely wide ambit of the offence suggested in some of the cases. MCCOC proposed to codify the offence, to limit its scope to economic gains and losses, and agreements to influence the exercise of a public duty.”

41 The draft legislation for an offence of conspiracy to defraud, in substance, reproduced a substantial part of the scope of the common law of conspiracy to defraud. That, of course, is quite consistent with the role of the MCC as a model to be adopted by any Australian jurisdiction. However, at that time, the Commonwealth had not, as indicated above, exercised any part of its constitutional powers with respect to conspiracy to defraud, save where the Commonwealth itself was the victim. This did not change.

42 The MCCOC Report on Conspiracy to Defraud was the subject of critical comment by Toohey and Gaudron JJ in Peters v The Queen (1998) 192 CLR 493 at [23]-[30]. These comments were acted upon when the Commonwealth implemented the Report on Theft etc, including an offence of conspiracy to defraud. See Revised Explanatory Memorandum, Criminal Code Amended (Theft, Fraud, Bribery and Related Offences Bill 2000 (Cth) par [201]. The Explanatory Memorandum said the Act purported to implement the MCCOC Report. (See e.g. at [200]-[201].)

43 The Act proceeded by invoking a narrow basis of Commonwealth power. The offences were included in Chapter 7 entitled “The Proper Administration of Government”. As the Chapter heading suggests, a victim of the offences adopted from the MCCOC Report on Theft etc and Conspiracy to Defraud must be “a Commonwealth entity” i.e. a public authority. (See e.g. Div 135.4(1)(b) and the Dictionary definition of a Commonwealth entity.) This is completely consistent with the prior legislative history.

44 Nothing in this legislative scheme suggests that the Commonwealth Parliament was intending to invoke the full range of its constitutional powers with respect to fraudulent conspiracies. Specifically, nothing suggests that it intended to exhaustively state the law of conspiracy to defraud persons with respect to whom the Commonwealth has power to pass legislation, relevantly corporations, but also aliens, the people of a race, let alone migrants, pensioners, bankrupts, divorcees, etc.

45 Furthermore, as I have indicated, nothing in the text, scope and purpose of the Corporations Act suggests that any such intention was formed at the time that that Act was passed. Nor is there anything to suggest such an intention when the Corporations Act was subsequently amended, so that the Commonwealth Criminal Code applied to Corporations Act offences.

46 For these reasons, the Applicant’s contention that he has pleaded guilty to an offence that does not exist, should be rejected.

The Abuse of Process Issue

47 The fact that particular conduct may constitute the Commission of more than one criminal offence is not an unusual situation. It is only in exceptional circumstances that the prosecutorial choice in laying a charge would constitute an abuse of process. However, in my opinion, the fact relied upon by the Applicant, namely the difference between the maximum penalties applicable to alternative charges, is a perfectly legitimate basis for the exercise of prosecutorial choice.

48 The charging of conspiracy where a substantive offence has been committed is the subject of guidance by courts of the highest authority. Although the practice has been discouraged, it has never been suggested that it is an abuse of process to proceed on a conspiracy charge where a substantive offence carrying a maximum penalty could have been lain.

49 In written submissions to this Court, counsel for the Applicant referred to the most frequently cited Australian authority on this issue, being The Queen v Hoar (1981) 148 CLR 32, where the joint judgment of the High Court, as quoted in the Applicant’s submission, said at 38:

“Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence is being committed.”

50 However, the Applicant’s written submissions did not contain the balance of that sentence in the High Court judgment which was “… and there is a sufficient and effective charge that this offence has been committed”.

51 The reasoning in the joint judgment in Hoar was the subject of detailed consideration by Vincent JA in R v El-Kotob (2002) 4 VR 546; [2002] VSCA 109 where his Honour said:

“[42] No member of the High Court in Hoar suggested that substantive charges must always be laid in preference to a charge of conspiracy or that there may not be circumstances in which a presentment could properly contain both a count of conspiracy and counts relating to substantive offences. However, where "a sufficient and effective charge" relating to a substantive offence was available, it was considered to be inappropriate to lay a charge of conspiracy. Although the attributes of such a charge were not identified, it would seem to be reasonably apparent that their Honours contemplated the availability of a charge or charges that properly reflected the real criminality involved in the conduct and enabled, upon conviction, the making of an appropriate punitive response to it.
[43] Often criminal activities pursued as a consequence or in the implementation of an unlawful agreement are regarded not only as overt acts demonstrating the commission of the crime of conspiracy but are punished as incidents of it. In those cases the most serious features of the offenders' conduct may be perceived as being related to the development of the criminal design rather than its implementation. That was the manner in which the Federal Court dealt with the situation in Hoar . The specific statutory offences encompassed by the overt acts almost certainly did not represent the total criminality encompassed by the conspiracy. This situation may be contrasted with that presented in a case where the offenders had engaged in planned bank robberies. The commission of the substantive offence in that case can be seen to possess a much higher degree of criminality of itself. The conspiracy is subsumed by the substantive offence. However, there may well be cases where, in order that the full extent and character of the criminality involved may be properly reflected in both the convictions recorded against the respective participants and any further penalties imposed upon them, a distinction is appropriately made between the conspiracy and the consequent but nevertheless separate substantive offences so that convictions are recorded on both. What must be avoided, as I understand the judgments in Hoar , is not necessarily the joinder of counts but the presentation of the individual before the court on inappropriate counts and the potential for undue complexity with its risks of unfairness.”

52 In the present case the only matter relied upon as indicating any kind of abuse was the different maximum penalties that could apply. That, in my opinion, is a matter upon which a legitimate prosecutorial choice could reasonably be made on the basis that the maximum provided for in the Corporations Law is not adequate to reflect the criminality of the offending in the present case. Accordingly, to use the language of the joint judgment in Hoar, a charge under the substantive offence is not “sufficient and effective”.

53 The authorities on the charging of conspiracy, in lieu of substantive offences, which are many, frequently refer to the elements of unfairness that may arise from the imprecision of the charge, the vagueness of the case and the scope of admissible evidence. It is difficult to see how weight could be given to such considerations in the context of a plea of guilty, as in the present case.

54 In any event, the issue of what is a “sufficient and effective charge”, to use the terminology in Hoar, is a matter that goes directly to the exercise of the prosecutorial discretion, with which the courts are reluctant to intervene.

55 As Gaudron and Gummow JJ noted in Maxwell v The Queen (1996) 184 CLR 501 at 534, this reluctance reflects, in part, the public interest in maintaining the independence and impartiality of the judiciary:

“It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.”

56 With respect to the proposition in this quotation referring to “decisions as to the particular charge to be laid or prosecuted”, their Honours referred to two cases as authority.

57 One was the decision of Kirby P in Chow v DPP (1992) 28 NSWLR 593 where his Honour said at 604-605:

“It is the function of prosecutors, not of judges, to determine whether a person will be prosecuted for a criminal offence and, if so, upon what offence. The judge is, at least ordinarily, bound by the charge which the prosecutor elects to bring: see R v Brown (1989) 17 NSWLR 472 at 477f. Under our criminal justice system, the judge has no right to require the prosecutor to proceed on a ‘higher’ rather than a ‘lesser’ charge. Necessarily, the prosecutor will often have a great deal of material (some of it inadmissible) which will be weighed in electing whether or not to prosecute and if so for what offence. The judiciary is not well placed to supervise such decisions. They belong, in any case, by statute, tradition and the principled demarcation of the prosecutorial and judicial functions, not to the judiciary but to the prosecution.”

58 Kirby P made similar observations in Weininger v The Queen (2003) 212 CLR 629 at [80]:

“ … In several cases this Court has insisted upon respect for the prerogatives of the prosecution. The primacy of the prosecutor in determining the accusations that will be placed before a court, and in deciding whether or not to accept a plea of guilty to a lesser offence, is clear law in this country. This delineation of functions arises from a recognition of the different roles of prosecutors and courts in our system of criminal justice. It is not for courts to determine what the accusation will be but whether the accusation, as made, is established according to law in a trial lawfully conducted.”

59 The second authority referred to by Gaudron and Gummow JJ in Maxwell supra, is of particular relevance for the present case. This was the judgment of Young CJ in R v McCready (1985) 20 A Crim R 32 where at 39 his Honour said:

“ … [I]t is I think clear that it is for the Crown to decide upon what offences an accused person is brought to trial by way of presentment or indictment, and, although the Court unquestionably has power to prevent an abuse of its process, it is not for the Court to decide, speaking generally, upon what offence the Crown should proceed. There are, of course, many statements in the books by judges and courts of the highest standing that it is undesirable to join charges of conspiracy with charges of substantive offences, that the charge of conspiracy should be sparingly employed, that at times a charge of conspiracy by reason of the evidence admissible to prove it may put an accused person at a considerable disadvantage. But all those observations stop short of denying to the Crown the right to indict or present for trial upon such charges as the Crown thinks fit.”

60 Of significance for the present case is what his Honour went on to say at 40:

“Mr Lewis contended, as I have indicated, that the process adopted by the Crown was worse than unfair: it was an abuse of process because it charged a conspiracy when it should have charged substantive counts, but I do not think that that proposition can be made out. Before a court could interfere with a charge presented by the Crown on the grounds that it was an abuse of process, there would have to be some very strong evidence or basis for thinking that the Crown was indeed seeking to achieve an ulterior purpose by the procedure adopted. That would indeed be an abuse of process. It may not be the only abuse of process, but the mere choice of one section rather than another under which to prosecute, even though the section charged carries a higher penalty than the alternative section that might have been used, is not in my view an indication of an abuse of process. Mr Winneke contended that substantive counts were in fact not open in this case, but I find it unnecessary to consider that submission for it seems to me that the reasons which I have already given are sufficient to meet the contention that there was an abuse of process in the present case.”

61 His Honour’s reasoning that a choice made because one offence carries a higher penalty than another is not an indication of an abuse of process, should be followed by this Court.

62 In any event, the proposition that the Applicant would be subject only to a single charge under s184 of the Corporations Code or under Div 11.5 of the Criminal Code, and, accordingly, be exposed to a maximum penalty of five years imprisonment, is not correct. On the limited facts of the case before this Court, the Applicant transferred the relevant computer records with respect to eight different clients of the bank. It was probably open to the Crown to charge the Applicant with multiple contraventions of s184(2)(a) of the Corporations Code, and, possibly, multiple conspiracies to contravene s184. The sentence to be imposed would take into account the principle of totality, but it is by no means clear that charging of substantive offences would lead to a lesser sentence than proceeding upon the common law conspiracy charge alone. In my opinion, the Applicant has not made out the factual basis for its submission.

63 For the above reasons the alternative submission should be rejected.

Conclusion

64 The orders I propose are:

1 Grant leave to appeal.

2 Appeal dismissed.

65 HISLOP J: I agree with the Chief Justice.

66 HARRISON J: I agree with the Chief Justice.

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