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.:

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

VINCENT, J.A.:

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.

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

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.

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP Reference No 1 of 2001

Details

AGLC: Director of Public Prosecutions Reference No 1 of 2001 [2002] VSCA 89
Case: [2002] VSCA 89
Decision Date: 29 May 2002

CaseChat Overview and Summary

In the case of DPP Reference No 1 of 2001, the respondents were charged with various drug-related offences. They were acquitted following a no case submission. The Director of Public Prosecutions sought to appeal the decision on the grounds that the trial judge erred in law by allowing a non-co-conspirator witness to give evidence of statements made by one of the respondents. The High Court was asked to determine whether the trial judge’s admission of such evidence was in accordance with the principles established in Ahern v The Queen.

The court considered the principles established in Ahern v The Queen and concluded that the trial judge did not err in allowing the witness to testify. The court held that the witness did not need to be a co-conspirator or identified on presentment to provide evidence of statements made by a co-conspirator. The court found that the principles in Ahern v The Queen do not require the witness to be a co-conspirator or identified on presentment, and that the trial judge was correct in admitting the evidence. The court further held that the admission of such evidence did not infringe upon the respondent’s right to a fair trial.

The High Court dismissed the appeal and affirmed the decision of the trial judge. The court held that the trial judge did not err in law by allowing the non-co-conspirator witness to give evidence of statements made by one of the respondents. The court found that the principles in Ahern v The Queen do not require the witness to be a co-conspirator or identified on presentment, and that the trial judge was correct in admitting the evidence. The court further held that the admission of such evidence did not infringe upon the respondent’s right to a fair trial. The appeal was dismissed, and the acquittal of the respondents was upheld.

Orders