DPP Reference No 1 of 2001

[2002] VSCA 89

SUPREME COURT OF VICTORIA

COURT OF APPEAL

DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO.1 OF 2001

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JUDGES:	PHILLIPS, C.J., ORMISTON and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 May 2002
DATE OF JUDGMENT:	29 May 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 89

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Criminal law - Conspiracy - No case submission - Acquittal - Witness can give evidence of statements made by co-conspirator - Ahern v. The Queen (1988) 165 C.L.R. 87 - No requirement that witness be co-conspirator or identified on presentment.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. with Ms K.E. Judd	Ms K. Robertson, Solicitor for Public Prosecutions
For the Acquitted Person	Mr O.P. Holdenson, Q.C.	Valos Black & Associates

PHILLIPS, C.J.:

1. I shall ask Vincent, J.A. to give the first judgment in this matter.

VINCENT, J.A.: 

1. At the completion of the Crown case in a trial at which the acquitted person was presented on a count of conspiracy, alleging that he had entered into an agreement with a person named Strampic to make false documents, namely bank cheques and Victorian drivers' licences, a submission that there was no case to answer was advanced on his behalf.

1. After hearing argument on this application, the trial judge, who was mindful of the relevant principles, acceded to it and directed an acquittal.  In this context, I observe that he referred specifically to the tests set out in Attorney-General's Reference No. 1[1], The Queen v.Towers[2] and the decision of the High Court in Doney v. The Queen[3].

   [1][1983] 2 V.R. 410

   [2](1984) 14 A.Crim.R. 12

   [3](1990) 171 C.L.R. 207

1. There is no need for present purposes to set out in any detail the evidentiary background of the matter or indeed the nature of the Crown case advanced against the acquitted person.  It is sufficient, I think, to state that his Honour formed the view that, independent of the evidence of a man called Sujster who the prosecutor described in his opening to the jury as "involved in this particular conspiracy", no reasonable jury could return a verdict of guilty.  I should point out that Sujster was neither alleged to be a co-conspirator in the presentment nor, at least directly, asserted to be so in the presentation of the prosecution case.

1. His Honour also concluded that the evidence of this person was hearsay and inadmissible.

1. It was this finding that has given rise to the reference to this Court by the Director of Public Prosecutions of the following questions: 

"A.Was the learned trial judge correct in ruling that the evidence of Sujster, as to what was said to him by Strampic in furtherance of the conspiracy between Strampic and the accused, could only be admissible if -

i.Sujster was a co-conspirator named in the presentment, or

ii.Sujster was a co-conspirator?

B.Is it a condition precedent to the admissibility of the evidence of a person of what was said to him by an accused in the furtherance of a conspiracy that the person giving evidence must be named as a co-conspirator in the presentment or at the very least be a co-conspirator?"

1. The relevant portion of his Honour's remarks, although I should add this was not the only point in which the evidence of Sujster was addressed, which deals with this evidence reads: 

"The presentment does not allege any agreement between the accused, Mr Strampic and Mr Sujster.  Agreement is the foundation of conspiracy.  Here, the presentment alleges an agreement only between the accused and Mr Strampic, and that was the way the prosecution case was presented to the jury.  If Mr Sujster is not a party to the agreement between the accused and Mr Strampic, that is, a co-conspirator of them, then his evidence of statements made by Mr Strampic concerning the existence of the agreement alleged in Count 1 and of the accused's participation in it is hearsay and inadmissible."[4]

[4]Transcript p.347

1. Mr McArdle, Q.C. who appears as senior counsel for the Director, has submitted that his Honour fell into error in two significant respects in this passage.  First, it was contended, the judge appeared to be of the view that, in order that evidence of an act or declaration of an alleged co-conspirator, performed or made in furtherance of the relevant conspiracy, may be admissible against the person charged in accordance with the principles laid down by the High Court in Ahern v. The Queen[5], the person giving the evidence must also be a conspirator, and second, that that person be so identified in the presentment. 

   [5](1988) 165 C.L.R. 87

1. I need say no more than that if his Honour was intending to convey either of those notions then he would have been incorrect.  No extensive exposition of the law is required to recognise that in a case in which it is alleged that A conspired with B, if the prerequisites set out by the High Court are satisfied, evidence of statements made by B to C who may be totally unconnected with the alleged conspiracy or could even be the intended victim of it can be admitted against A.  There has never been a requirement that C be a co-conspirator or that he or she be designated as such in the presentment, although that may well be the case.  Considered in this context, C is simply a witness who can give the evidence of the relevant and admissible acts and declarations.  It would be strange indeed if an innocent bank teller to whom a demand for money was made could not give evidence of it in the trial of an alleged offender who had not personally made the demand on the sole basis that he, the teller, was not a party to the agreement to rob the bank.

1. Not surprisingly, I would suggest, neither of these propositions has been the subject of any controversy in this Court.

1. However, I am by no means confident that his Honour's expressions were intended to convey the meanings ascribed to them by the Director.  It must be remembered that his remarks were made in the context of a no case submission and against the background of the arguments and evidence upon which it rested.  Mr  Holdenson, who appeared in the court below, has assured this Court that no such contentions were made and he described the judge's remarks, if they could be perceived as possessing those meanings, as "coming from left field"

1. I think that it is more likely that his Honour's reference to the absence of Sujster's name on the presentment was made to reinforce the point that at no stage was Sujster asserted by the prosecution to be a party to the relevant conspiracy.  His further remarks were intended to convey his conclusion that none of the evidence that this witness had given concerning the actions and declarations of Strampic went to the issues of the existence of the particular conspiracy alleged in the presentment or the participation of the acquitted person in it.  Whether or not the judge was correct in this assessment of the situation does not arise in this proceeding.

1. If his Honour's remarks constituted a rolled-up response to the arguments advanced before him in the fashion that I have indicated, albeit not expressed with precision, then no question of law would arise.

1. As they are attended by doubt as to their meaning, in any event, I am of the view that this Court should decline to address further the points of law raised in this reference

PHILLIPS, C.J.: 

1. I agree.

ORMISTON, J.A.: 

1. I agree that for the reasons stated by Vincent, J.A. it is not appropriate to answer the questions posed.

PHILLIPS, C.J.: 

1. My present view, and I seek the assistance of counsel on behalf of the Court, is there is no point in adding anything to the judgment pronounced.  Is any form of order appropriate?

(Discussion ensued) 

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