Mickelberg v The Queen

[1990] HCATrans 253

A/Jr -!.) AUSTRALIA ~ ~ .) .>).)~)'$~(.~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P35 of 1989

B e t w e e n -

PETER MICKELBERG

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 1990, AT 10.44 AM

Copyright in the High Court of Australia

Mickelberg 1 24/10/90

MR M.J. McCUSKER, QC:  May it please Your Honours, I appear

with my learned friend, MR P.K. SEARLE, for the

applicant. (instructed by Lawton Gillon)

MR J.R. MCKECHNIE, OC: If Your Honours please, with my

learned friend MRS M.A. YEATS, I represent the

Crown. (instructed by the State Crown Solicitor)

MASON CJ:	Mr Mccusker?
MR McCUSKER:	May it please Your Honours, I provided your Honours with an outline or summary of the
applicant's argument in this matter. Your Honours, there is some additional material beyond that which
has been already provided to Your Honours in the appeal books by way of supplementary appeal books
which I may need to refer to in the course of my
submissions.  I foreshadow that would ask for leave
to tender further supplementary material.
MASON CJ:	Your first task is to persuade us that we ought

to grant special leave to appeal.

MR McCUSKER:	I accept that, Your Honour.
MASON CJ:	And perhaps you might embark upon that task,

initially and only in the event, so to speak, that

you succeed in obtaining a grant of special leave

to appeal or persuade us that we ought to hear more

of the case without determining the question will

we need to consider your application to file

further appeal books.

MR McCUSKER:  I understand, Your Honour. Your Honour, the

major special leave point is referred to in

paragraph 1 of the summary of argument and it is

the point which is made in paragraph 4 of the

affidavit, or supplementary affidavit, in support

of the application for special leave which appears

in volume VI, pages 1632 to 1534. In essence,

Your Honours, it concerns the application and,

indeed, the meaning of what was said in Darby's

this Court, in Darby's case, to be no longer the	case when the so-called old rule was declared by
common law of Australia.

Prior to Darby's case the law, as it was

understood, was that where there was an acquittal

of a person charged as a co-conspirator and the
conviction of the other co-conspirator, that

conviction could not stand consistently with the

acquittal of the other co-accused. In Darby's case

where the facts were that there were two alleged

co-conspirators tried jointly both were convicted

one Thomas on appeal successfully had the

conviction quashed on the ground that although

there was some evidence of a conspiracy of some

Mickelberg 2 24/10/90

sort in which he had participated there was no

evidence that the conspiracy was of a nature

alleged.

Following that Darby sought to appeal on the

ground that the quashing of the conviction of

Thomas rendered his conviction inconsistent and

should not stand. The evidence in Darby's case as

against Darby and as summarised by the High Court

was that there was, indeed, very substantial

evidence as against Darby, that he was party to a

conspiracy with Thomas the specific conspiracy

being armed robbery and quite in contrast with the

evidence as against Thomas there was evidence

described as confessional evidence, or evidence of

admissions, as against Darby of that conspiracy.

The court there said that it was not, as a matter

of law, an inflexible rule that the conviction of

one alleged co-conspirator could not stand

consistently with the acquittal of the other

alleged co-conspirator and that question fell for
determination by reference to all the circumstances
of the case and according to the justice of the
case.

Your Honours, the case of Peter Mickelberg has had a somewhat lengthy history. In February 1983

the applicant, Peter Mickelberg, was tried jointly
with his brothers Raymond and Brian, on a number of

charges including a charge of conspiracy to defraud

the Mint. The other charges were charges of a

substantive nature they included: obtaining gold

by false pretenses which were acts done in

furtherance of the conspiracy; three separate

charges of obtaining gold by false pretenses;

arson and breaking and entering; also acts said to

have been done, or offences committed, in

furtherance of a conspiracy, the arson and the
breaking and entering having been done, as it was
alleged in the Crown case, for the purpose of

obtaining cheques which were ultimately used in the

fraud. ·

Now, all three brothers, as they were, were

convicted of the charge of conspiracy and in the
case of Peter and his brother Raymond they were
convicted of all of the substantive charges; in
the case of Brian he was convicted of the charges
of false pretenses but not of the other substantive

charges. There was a question raised in relation

to Brian of the date at which he entered the

alleged conspiracy.

On appeal by Brian all his convictions were

quashed and that is recorded and the reasons for
the quashing in Brian Mickelberg v R, (1984)

WAR 191, which is No 14 in the bundle of

Mickelberg 24/10/90

authorities which I understand have been supplied

to this Court. They have not been supplied I will

arrange for them to be now supplied. There is a

set of three volumes, Your Honours, for each member

of the bench. The case of Brian Mickelberg, as I

said Your Honours, is No 14 in the first volume.

The applicant Peter Mickelberg unsuccessfully

appealed against a conviction for the substantive

offences of arson and break and entering and later

sought, unsuccessfully, an extension of time or leave to appeal to the Court of Criminal Appeal against the other offences. Subsequently, as some

of Your Honours are, I think, well aware there was

a petition by the applicant and the

Attorney-General referred the whole of the applicant's case to the Court of Criminal Appeal

pursuant to section 21 of the Criminal Code. The

Court of Criminal Appeal heard substantial further

evidence as a result of that reference; the Code

required that the reference be heard, or dealt

with, as on appeal; the Court of Criminal Appeal

dismissed the applicant's appeal in

November 1987 - - -

MASON CJ:  We are familiar with the history of it

Mr Mccusker.

<MR McCUSKER:  May it please Your Honour. Your Honours, on

the application for special leave which then
followed the applicant's application for special

leave on that occasion was allowed and the appeal

allowed in part. The matter was then referred back

to the Court of Criminal Appeal for the
determination in accordance with the judgment of
the Court of two questions, which were essentially

whether the verdict was unsafe and unsatisfactory

having regard to all the evidence and what was said

to be, I think by Your Honour Mr Justice Deane, the

related question of whether the verdict of guilty

as against Peter Mickelberg could stand

consistently with the acquittal of Brian Mickelberg

charge of conspiring with his brothers Brian and on the charge of conspiracy to defraud that being a Raymond.

Your Honours, in Darby's case there was no

question of the court on appeal considering whether

the jury might have found as against Darby that he

was guilty on the evidence of some other

conspiracy, that is other than that alleged and for

which he was tried and convicted. This case, in

that respect, is quite different because in this

case the charge which Peter Mickelberg faced was a
charge of conspiring with his two brothers and in

the case of Brian Brian's involvement in the

Mickelberg 4 24/10/90

conspiracy was an important feature of the Crown

case.

McHUGH J: But it is only a matter of particulars is it not,

the names of the people. Take the so-called xxxx

cases where conspirators may never know each other,

they come and go at different times. Take the

abortion cases you might have 50 people charged

with conspiracy. You could not seriously contend

that because one of them is acquitted that the

other 49 are entitled to an acquittal as well could

you?

MR McCUSKER:  The degree depends, of course, Your Honour, on

the nature of the charge and the way that the

charge is framed and the essence of it and

Gerakiteys, for example, that was the result that
there was a quashing of the convictions in
Gerakiteys. But, as I say, it depends on the

nature of the charge. Here, there was not a charge

as against Peter Mickelberg that he conspired with

his brothers and divers others nor was there an

alternative count put to the jury, or alternative

count that he face of conspiring simply with

Raymond Mickelberg and in examining this question

of whether the verdict of guilty can stand

consistently with the acquittal of Brian, it is the

applicant's submission that all of the

circumstances need to be considered and not simply

confining as, with respect, the Court of Criminal

Appeal did itself to an examination of the relative

strength of the case as against Peter Mickelberg.

One problem with that approach, and there are

examination of the strength of the case as against several problems, but one problem is that that charge".

The Court of Criminal Appeal did not consider,

on the reference back to it, the question of

whether there was sufficient evidence for a

conviction as against Peter of conspiring with his

brothers Raymond and Brian. It confined itself to	an examination of the question of whether there was
sufficient evidence on which he might have been
convicted as he was not on a charge of conspiring solely with Raymond. That is the first problem
this gives rise to.

DAWSON J:  Why do you say that? I mean Brian did not

disappear from the conspiracy. You say in your

submissions that Brian's acquittal means that the

conspiracy alleged did not exist but what if the jury were just in a reasonable doubt in the case against Brian?

Mickelberg	24/10/90
MR McCUSKER:	Your Honour, what I am saying, with respect,

is that the approach taken by the Court of Criminal

Appeal on the reference back to it was not to

consider whether there was sufficient evidence on

which to convict Peter of a charge of conspiring

with Raymond and Brian it is conclusion - - -

DAWSON J:  I know you say that, maybe you will demonstrate

that, but really it is a question of the case

against Peter and the strength of that and as I
understood it the conspiracy remained the same, the
conspiracy of the three brothers, even though

Brian, one of the brothers, in the end was

acquitted on all charges and that is perfectly, in

the light of Darby's case, a permissible approach.

MR McCUSKER: It could be, Your Honour, yes, I accept that,

for example, if the Court of Criminal Appeal on the

reference back to it had concluded that there was,

to take Darby's case as analogy, evidence that

Peter had admitted to being party to conspiracy with Brian and Raymond then despite the acquittal of Brian the conviction could then stand

consistently with the principles in Darby's case,

but that is not the approach taken by the Court of

Criminal Appeal for the reason, in our submission, that there simply was not any evidence before the
Court as against Peter on which he could have been convicted of a conspiracy with Brian and Raymond.

The Court of Criminal Appeal examined the narrower

question of whether there was evidence on which the

jury could have convicted him of a conspiracy with

Raymond. They did not conclude that there was

evidence sufficient to support a conviction on the

charge of conspiracy with Raymond and Brian

and -

BRENNAN J:  Mr Mccusker, just so we can understand what the

special leave point is, am I right in thinking that there was a conspiracy charged which was identified

in two ways: one was a conspiracy to do certain

things, namely, to effect the Mint swindle and the second was that the parties to the conspiracy were (a), (b) and (c). Your argument is that though the

conviction of Peter might be supportable if the

conspiracy is identified merely as a conspiracy to

swindle the Mint, if one takes it as of the essence

of the conspiracy charged that there were three

parties

MR McCUSKER: Yes.

BRENNAN J: there is evidence only of a conspiracy between

two. Well, now, where does that lead to a special

leave point?

Mickelberg 6 24/10/90

MR McCUSKER:  Your Honour, it leads to a special leave point

because it involves an important question as to the

application of the principles stated in Darby's

case. The Court of Criminal Appeal, in our

respectful submission, took Darby's case to mean

that it will be sufficient if there is on a

conspiracy charge sufficient evidence to support a
conviction on a conspiracy, not necessarily the

conspiracy charge faced by the applicant.

I said there were several problems, another

problem in considering the justice of the case is

this: support on the charge that he faced at the

end of the day the judge had directed the jury that

on that charge there was no evidence on which they

could convict Brian of the alleged conspiracy and
directed an acquittal that left Peter,

hypothetically, and Raymond facing the jury. One

can only hypothesize or speculate as to whether the

jury, in that event, would have gone ahead and
convicted Peter and Raymond XXXX Peter of the

alleged conspiracy.

It is speculation, that was not the charge

which the jury tried him on, they tried him and

found him guilty of a charge with his two brothers

and in order to examine the justice of the case it

is important to appreciate the extent to which

Brian's involvement was seen to be an important

element of the conspiracy in the course of the

trial. Now, had the jury - we are entering the

realm of speculation the important point involved
here is whether in such a circumstance the

conviction should stand or whether it should be

said either the conviction cannot stand and should

be quashed or the conviction cannot stand should be

quashed and a new trial ordered in respect of the

alternative count which never put and on which he

was never tried.

BRENNAN J: In order to separate circumstances of this case

from the proposition of law that might be inherent

in your submissions, is the proposition of law

this: that if a count of conspiracy is laid as a

conspiracy to affect a given unlawful object, be a
conspiracy between three or more nominated persons,
the acquittal of any of those nominated persons

together with the absence of any evidence against

one of the remaining accused that that acquitted

nominated person was a member of the conspiracy

entitles all members of the conspiracy to an

acquittal?

MR McCUSKER: Well, not quite, Your Honour, because one

would have to look at the cases against each of the

alleged conspirators separately - - -

Mickelberg 7 24/10/90

BRENNAN J:  Of course.

MR McCUSKER: So, with (a), (b) and (c) if (c) is acquitted

the question then would be looking at (b)'s case

was there nevertheless evidence by way as in

Darby's case confession, that he had conspired with

(a) and (c).

BRENNAN J:  Does that not take you directly to Gerakiteys

case where it is necessary by reference to the
terms of the indictment to identify the substance

of the conspiracy that is charged. Sometimes the

substance may be that the conspiracy is identified

by reference to the parties to it. On other

occasions it may be identified by reference to the

unlawful object of conspiracy.

MR McCUSKER:  It does on this point, Your Honour, that there

is, as I say, a separate issue arising here. If

one is looking at all the circumstances in order to

determine the justice of the case those
circumstances, obviously, vary from case to case
but in this case, getting away from the pure issue

of law and to the particular facts, in this case as

we have demonstrated in the summary which is

attached to this outline there was considerable

evidence as to the alleged involvement of Brian in

the conspiracy. The gold which was stolen,

defrauded from the Mint, the gold was on Duvnjak's
evidence transported to Jandakot airport,

Brian - - -

BRENNAN J:  I can appreciate that there are problems that

you wish to add xxxx on the merits of the case, my

question was directed to identifying the question
of law and if I understand your answer correctly
there is no novel proposition of law that you wish

to agitate which has not already been covered by a

combination of Darby's case and Gerakiteys.

MR McCUSKER:  No, with respect, that is not quite so.

Darby's case dealt with a particular situation

where the alleged conspiracy was the conspiracy of

which both were convicted one was acquitted and the

question was whether the conviction on that
conspiracy could stand. That fell to be determined

by reference to the justice of the case. Where we

have as here three co-conspirators and one is

acquitted the question that is raised, and we

submit a novel question, particularly having regard

to the approach taken by the Court of Criminal

Appeal, an important question, is whether in those circumstances it is sufficient to determine that

the jury could have, had the matter been put to
them, found Peter guilty - found one of the two

left - guilty of the alleged conspiracy,

notwithstanding that there was no evidence before

Mickelberg 8 24/10/90

the Court that he conspired with both of his

brothers.

DEANE J: Is not your real point this, that if you have a

conviction of a conspiracy of three people where

one is subsequently acquitted and the question

arises whether you can sustain it as a conviction,

conspiracy between two people, the first question

must be what evidence was admitted at the trial on

the basis that the third party was a conspirator

which would not have been admitted on a trial of a

charge of which the appellate court is now

convicting as it were -

MR MCCUSKER:  Yes, Your Honour.

DEANE J: Is that the beginning and the end of it?

MR McCUSKER:	No, it is one of what we say are two problems emerging from this case. That is one and that
calls for an examination which the Court of
Criminal Appeal did not undertake.

DEANE J: What you say here is, a great deal of evidence of

what Brian was alleged to have said was admitted

and received in evidence on the basis he was a

conspirator - - -

MR McCUSKER: That is so.

DEANE J: And it was obviously completely admissible on the

charge, again on what you say I have not followed

it through, the Court of Criminal Appeal has held

he could have been convicted.

MR MCCUSKER: That is so.

McHUGH J:  But did the Court of Criminal Appeal hold that he

could have been convicted of conspiracy with the

one brother?

MR MCCUSKER: With Raymond, yes, I think that is the xxxx

DEANE J: As I follow it, that is what you said was the

whole approach of the Court of Criminal XXXX.	I
have not observed it myself but - - -

MR McCUSKER:  That was the conclusion of the Court of

Criminal Appeal in the joint judgment. There was

no conclusion that there was evidence as against

Peter that he conspired with Raymond and Brian.

McHUGH J: But a court could be satisfied beyond reasonable

doubt that (a) was guilty of a conspiracy with (b)

and (c) even though it was not satisfied, beyond

reasonable doubt, that (c) was guilty of a

conspiracy with (a) and (b).

Mickelberg 9 24/10/90

MR McCUSKER: Certainly, Your Honour, I accept that because

there may be a confession by (a) but no evidence as

against the evidence that they were parties to the

conspiracy.

McHUGH J: But the important point is that in determining

whether you have proved the case beyond reasonable

doubt against (a), it is not a necessary part of

the reasoning process that you also be convinced

beyond reasonable that (c) was a party to that

conspiracy.

MR McCUSKER:  No, no, that is accepted.

McHUGH J: Well, it is quite possible is it not that a judge

might think on the balance of probabilities that

(c) was a party to a conspiracy just standing alone

and that is still sufficient for the judge to hold,

beyond reasonable, or the jury to hold beyond

reasonable doubt, that (a) was guilty of

conspiracy.

MR McCUSKER:  In a given case that may be so, Your Honour,

yes. By way of example, could I take Your Honours

to page 1622, xxxx of our claim volume VI, where

His Honour Mr Justice Wallace, refers to the subservience, this is at line D, referring to

various aspects of the evidence:

including his subservience -

His Honour said -

to Raymond Mickelberg, which take the

admissions made out of the area of a bare

consciousness of guilt.

Incidentally, the subservience point stems directly from the oral omissions so called. There is no

independent evidence of such subservience.

Throughout the applicant's questioning by the

police, he deferred -

and so on, over the page -

to the point where it was open to the jury to

infer the applicant's participation in

Raymond's conspiracy and therefore to make the

case against Raymond now proved, relevant

against the applicant.

McHUGH J: That is in His Honour's judgment.

MR MCCUSKER:  Yes.

McHUGH J: But what about in the majority judgment?

Mickelberg 10 24/10/90

MR McCUSKER: In the joint judgment -

McHUGH J: Joint judgment, 1596, in D he said:

it cannot be said that the jury must have

entertained a reasonable doubt about Peter's

guilt on the charges against him.

MR McCUSKER:  Your Honour, the difficult with that, if that

is meant to imply, as indeed it may, a conclusion

that there was evidence as against Peter of a
conspiracy with Brian and Raymond is that none of
the evidence which is canvassed points to the
existence of such a conspiracy, that is involving

Brian.

BRENNAN J: But how did the gold get away from Jandakot

airport?

MR McCUSKER:  Your Honour, I do not know. But the

question - - -

BRENNAN J: Well, one argument in the Crown's case was that

it was flown out was it not?

MR McCUSKER: That is right, but that was

BRENNAN J:	And Brian was the pilot?
MR MCCUSKER:	Yes.
BRENNAN J:	And that is the allegation?

MR McCUSKER: That is the hypothesis that is put

forward. - - -

BRENNAN J:  The hypothesis.

MR McCUSKER: Yes. This is a circumstantial case - - -

BRENNAN J: Yes.

MR McCUSKER:  And, of course, the jury were invited to

consider the hypothesis and the hypothesis - the

whole thrust of the prosecution cases, here we have

three brothers and when the gold gets to Jandakot

who is a pilot, Brian; who works at Jandakot,

Brian, 100 metres away from where the gold was said

to be dropped and who lives there, Brian. Now, all

of that evidence is related very much to a conspiracy involving Brian but there is no evidence, and that is very important evidence

Your Honour, if -

BRENNAN J:  And then Peter is alleged to know where the gold

is?

Mickelberg 11 24/10/90

MR McCUSKER:  Peter is alleged to know where the gold is,

yes.

BRENNAN J:  Though he clearly was not the one who

transported it from Jandakot?

MR McCUSKER: Well, there is certainly not the slightly shred

of evidence that he did, no. The allegation that

he knew where the gold was is based again entirely

on an inference said to be open from old admissions

allegedly made to the police.

BRENNAN J: Yes. What I am concerned to discover is whether

it is right to say that there was nothing in the

facts as evaluated by the Court of Criminal Appeal

which, as it were, fails to link in any material

respect, Peter to Brian.

MR McCUSKER:  Other than the fact that he is his brother

as against Brian which would not have been introduced, I would not think, in the trial had it been of Raymond and Peter alone as, for example,

there is nothing. There are other aspects of the tendered

the evidence that Brian engaged some time before

the swindle in the purchase of gold bullion - a

very substantial amount of gold bullion - from the

Mint by the use of a bank cheque. Now, since the

use of a bank cheque and the method of obtaining
the gold from the Mint in the swindle itself, was
an important aspect and knowledge of how it
operated was considered to be important. There,
again, we have evidence which was introduced for

the purpose of persuading the jury and, in our

submission, was likely to have persuaded the jury

of the existence of the conspiracy as alleged.

It is pure speculation, particularly in a

circumstantial case, to opine what the jury might

have found in a different case.

McHUGH J: Yes, but that is the point. If you look at 1595

it is quite plain, is it not, that the

Chief Justice Mr Justice Seaman took the view that

despite Brian's acquittal, Peter's conviction of

conspiracy on the charge could still stand and that
charge was conspiring with his two brothers. Now,

there is no error at all there is there? The most

you can argue is that they got the evidence wrong.

MR McCUSKER: Well, they got the evidence wrong that is one

later argument which when I come to, but the first

question is, "Did they make a proper examination of
the circumstances of the case in order to make a

determination in terms of Darby according to the

justice of the case", and that is where we come

Mickelberg 12 24/10/90

back to what His Honour Mr Justice Deane put to me

earlier. We have evidence - - -

McHUGH J:  Mr Mccusker, if you look at 1584 where

Their Honours pose the relevant question, looking

at below Cit does not seem to me to support the

view that they did not at least approach the proper

question.

MR McCUSKER:  Yes, I accept that, Your Honour, I think that

is so, with respect, but certainly in the case of

Mr Justice Wallace he seems to have taken a

different approach. But if one then looks at the

evidence that was canvassed by the Court of

Criminal Appeal in the joint judgment of the
Chief Justice and Justice Seaman, the evidence that

is referred to is not 10, it is not even 10, to

establish existence of such a conspiracy as against

Peter conspiring with Brian and the further matter

that I think Your Honour Mr Justice Deane was

raising with me earlier, appears in summary at

page 1586, where the case as against Brian is put,

the association

BRENNAN J: Well, now, where does that leave to a special

leave point

His association with Jandakot Airport and his

occupation as a pilot -

and there is further material: the ownership of

the orange Porsche, a Porsche which was seen in the

vicinity of Conti Estate Agency where the arson

took place. All these matters were relied upon by

the prosecution to establish the alleged
conspiracy.

Your Honours, whilst it may arguably be the case, we submit not, that there existed some

evidence sufficient for the jury to convict Peter

on a conspiracy with his brother Raymond, one

searches in vain for any evidence on which a jury

could have convicted Peter on a conspiracy with

Brian and Raymond. Put it this way: suppose at

the end of the trial - as I was putting before -
the trial judge had said to the jury, "I direct you
to acquit Brian of the alleged conspiracy.", the

question then is: was the jury then inevitably or

most likely - to put it lower - going to proceed to

convict Peter of that conspiracy?

McHUGH J:  They may well have and they would be entitled to.

The jury does not have to be convinced beyond a

reasonable doubt of every fact in the case. They

have only got to be convinced beyond reasonable

doubt of the guilt of the accused on the charge he

is on.

Mickelberg 13 24/10/90

MR McCUSKER:	Yes, that is so, Your Honour, but there must be evidence on which they could find that there was
a conspiracy with Raymond and with Brian.

DAWSON J:  Why? I do not understand that. I mean, assume

that the jury came to the conclusion that there was

a conspiracy to get this gold to the airport and to
get it out of the airport in some way, even by
flying it out, and that someone was going to fly it

out, it was alleged by the Crown that it was Brian

that was going to do this, it was a matter of

inference, the jury may not be satisfied that it

was Brian that it was someone else and nevertheless

you have got the conspiracy.	What is the
difficulty?

MR McCUSKER:  The difficulty with that proposition,

Your Honour, is that Peter has never been tried on

that basis.

DAWSON J: Yes, he is. He is tried for a conspiracy to

defraud the Mint of this gold and part of that

fraud is to dispose of the gold and that involves

these facts. Brian may or may not be involved in

those facts but nevertheless they may be proved

against Peter.

MR McCUSKER: That may be so, hypothetically, Your Honour,

but when one comes to consider - - -

DAWSON J:	No, it is a matter of inference.
MR McCUSKER:	Yes.
DAWSON J:	You may not be able to draw the inference from

the facts that Brian was involved in this way but

you can draw the inference on all the facts that

Peter and Raymond were involved in this way.

MR McCUSKER: Well, "in this way" implying - involved.a

conspiracy with Brian as I take Your Honour?

DAWSON J: Yes, but a conspiracy to do the things which the

Crown alleged.

MR McCUSKER:  Yes. If Your Honours consider the judgments

and the facts or the evidence that was traversed by

the Court of Criminal Appeal in the joint judgment

and the separate judgment of Justice Wallace, my

submission, with respect - - -

DAWSON J:  What is the exercise? Are we looking to see what

evidence the Court of Criminal Appeal improperly

took into account?

MR MCCUSKER: That is so.

Mickelberg 14 24/10/90

DAWSON J: Well, if we can point to that then we will get to

the nub of it.

MR McCUSKER:  In my submission, nowhere in the evidence

which they properly took into account is there any

evidence from which it can be said, as in Darby's

case, that clearly the jury would have convicted

Peter and Raymond of a conspiracy with Brian.

DAWSON J: But that is not the point, of conspiracy with

someone, because it would appear on the facts that

someone else had to be involved in getting the gold

away but it does not have to be Brian.

MR McCUSKER:  On the facts, Your Honour, there is no reason

why there had to be someone else. There could have

been a sole perpetrator of this fraud from

beginning to end.

DAWSON J: There could have been a lot of things but let us

assume that the jury decided it was proved beyond

reasonable doubt that Raymond and Peter conspired

to get the gold to the airport in the manner in

which the Crown alleged, is it not just a matter of

inference that there was also an arrangement that

someone else would get the gold away from the

airport, irresistible inference?

MR McCUSKER:  The starting point, as I understand it from

Ahern's case, is that there must be clear evidence

that a combination did exist. The basis upon which

the Court of Criminal Appeal has concluded that
there was a combination - which is the starting

point - is, in my submission, quite tenuous because

the court referred to the evidence of Mr Hunt.

Mr Hunt was the bullion officer of the Mint who

said that two different people, using different

names, had telephoned him and that their voices

sounded different. That is really the basis upon

which, in the end, the conclusion has been reached,

apart from any speculation, that there was more

than one person involved in the conspiracy.

The question of transporting the gold from the

airport does not necessarily require involvement of

some other participant. So, on one hypothesis,

there could have been a fraud, a substantive

offence, committed by one person only, namely

Raymond. There is nothing in the evidence which

points, even strongly, much less conclusively, to

the existence of a combination.

That is the starting point. What

Their Honours then considered was the question of

whether there was reasonable evidence of Peter's

participation in the alleged conspiracy. But the

starting point of proving that there was a

Mickelberg 15 24/10/90

combination is not established on the evidence that

was before the court.

The jury may have been prepared to accept that there was a combination, whilst looking at the

alleged participation of Brian in the conspiracy,

but once Brian's participation is taken away - the

important element being that he was a pilot at

Jandakot Airport - if that is taken away as the participation of a conspirator and one looks at what is left there is nothing more than unsigned,

oral confessions not of participation in the

offence but of matters which might have shown, as

this Court said previously, some knowledge of the

matter.

DAWSON J:  I do not understand - you have the advantage of

me, you have lived with the evidence for a long

time - why you say that there was no evidence of a

combination, looking at just the behaviour of

Raymond and Peter?

MR McCUSKER:  The behaviour of Peter - I am not quite sure

which part of the behaviour you are looking at,

Your Honour, but there was evidence that Peter, if

accepted that it was Peter who purchased a vehicle,
a second-hand 1965 Ford Falcon sometime before the

swindle, and there was evidence that that vehicle

was seen near Barker House where the gold was

transported to on the day of the swindle, outside

in the parking area. There was no evidence that

it was Peter who was the young man seen near the

vehicle or in the vehicle on that day. There was

speculation that the vehicle was used in some way,

never clearly explained, for the purpose of the

swindle.

DAWSON J: But his presence or the presence of the vehicle

was unexplained there - - -

MR McCUSKER:  The presence of the vehicle was

unexplained - - -

DAWSON J:  - - - except in terms of having something to do

with the gold being transported there.

MR McCUSKER:  There is simply no evidence that it was used

for that purpose.

DAWSON J: It was there.

MR McCUSKER: It was there, yes.

DAWSON J:  It was a coincidence. Then the vehicle is

disposed of later?

MR MCCUSKER: That is so.

Mickelberg 16 24/10/90

DAWSON J:	By burning?
MR McCUSKER:	Yes, that is so, but there is no evidence whatsoever that Peter was the young man who was
seen in the vehicle on that day.

DAWSON J: Perhaps. And then there is the evidence of - I

hesitate to call them confessions - the interview

from which one can draw general inferences because

of the equivocal nature of some of the answers -

quite a number of the answers - such as, "I would

tell you all but Raymond" - these are not the words

- "but I am frightened of Raymond.". And that

being so, I would have thought that there is clear

evidence of a combination between those two.

MR McCUSKER: That is equally referable, Your Honour, to

evidence of knowledge - this is after the event -

of where the gold is. That does not point to - it

is certainly not a confession of participation in

the swindle itself nor of a conspiracy. It is, at
the highest, evidence of some knowledge at that

point of where the gold is.

DAWSON J: It is evidence of a combination of some sort and

the parameters of the combination may not be

established at that point but then that is enough

to take you to the next step.

MR McCUSKER:  The next step being the question of whether

there was reasonable evidence as to who were the

participants.

DAWSON J:  Who were the participants, yes, and the extent of

their participation.

MR McCUSKER:  Yes, Your Honour, but going back to the first

point: what was allegedly said by Peter to the

police officers in circumstances which we say is a

separate ground give rise to serious consideration of whether or not a warning should be given to the jury about the receipt of such evidence.

DAWSON J: That is another point.
MR McCUSKER:	That is another point but taking what he said:

at its highest it goes no more than to prove the existence at that point of some knowledge on the

part of Peter.

DAWSON J:  Of some sort of combination.

MR McCUSKER:  Not necessarily, with respect. And, indeed,

if it be some sort of combination, those so-called

admissions can equally point to knowledge of where

the gold was without there being any combination

whatever.

Mickelberg	17	24/10/90
DAWSON J:	I do not see that.	I mean, once you connect

Peter with the car, in respect of which the

admissions were made, for example, with respect to

the burning, and the events which took place at

that time - the transport of the gold and so on -

you have got enough or the jury may have thought

you had got enough, let us put it that way.

MR McCUSKER:	They may have thought, Your Honour, but we do come back to the question of speculating on what
the jury may have done in those circumstances.

DAWSON J: Well, let me put it this way: the evidence was

sufficient for the jury to come to a conclusion

that there was a combination between Peter and

Raymond.

MR McCUSKER:  But may I come back to the earlier point, Your

Honour, that the jury was looking at the totality of the evidence before it; it was looking at

evidence as against Brian; of Brian's

participation; the fact that he was a pilot; the

fact that there was gold bullion.

DAWSON J: Leaving Brian completely out of it for the

moment.

MR McCUSKER:  Yes, well, then we come to a question of being

tried by the Court of Criminal Appeal, with

respect, and not by a jury.

DAWSON J:  No, the jury obviously did come to the conclusion

that there was a combination.

MR McCUSKER:  But they came to a conclusion which was

clearly wrong.

DAWSON J:  And then, having done that, they were entitled

to - and there there was reasonable evidence that

Raymond and Peter were participants in that

combination. Having come ta that conclusion the

jury were then entitled to take the acts of at

least Raymond and Peter into account in determining

what the nature of the participation was; all of

this without Brian.

MR McCUSKER:  Yes, but we do not know, Your Honour, whether

the jury - it is an inscrutable verdict - may have

also taken into account, before reaching its final

conclusion as against Peter, the evidence that was

introduced because of Brian's alleged participation

and his relationship to Peter.

DAWSON J:  Now what - - -

McHUGH J: They are entitled to take that into account, are

they not, on the charge against him? I mean, in

Mickelberg 18 24/10/90

determining whether he was guilty beyond reasonable

doubt they were entitled to take - of the charge as

pleaded and particularized, the jury were entitled

to take into account that Brian operated from

premises at Jandakot Airport; that in 1980 Brian

and therefore he was available in Perth at the

and Peter had purchased gold from the Mint; that

relevant time; and that gold was taken by the

couriers out to Jandakot Airport. All those

factors are admissible on a charge against Peter.

DAWSON J: But if I may add, they have come to the

conclusion against Brian, "Well, we don't think

that proves the case against him. He probably was

involved in this way but the Crown hasn't proved

its case beyond reasonable doubt. But when we add

those facts to the facts which are established

against Raymond and Peter, the picture is

different."

MR McCUSKER: Again, Your Honour, I accept that that is a

possibility but, in my submission, Peter was

entitled to be tried by a jury on the charge which

the Court of Criminal Appeal now says he -

McHUGH J:  But he was tried by the jury on the same charge

that the Court of Criminal Appeal said was not

unsafe and unsatisfactory.

MR McCUSKER:  But if one examines the evidence in relation

to his involvement in a conspiracy with Brian, the

evidence, apart from speculation, does not exist.

There is no confessional evidence for a start of

any involvement in a conspiracy with Brian. The

whole approach that the jury was invited to take

was: here are three brothers; each had their part

to play; Brian had a Porsche which was used either

by him or someone else; seen, it was suggested to
the jury, outside the place where the arson took
place; Brian had the necessary knowledge from

experience in buying gold bullion; and Brian, of

course, was a pilot who lived near and worked near
the place where the gold was dropped.	Now, if you

take that out of the picture, in terms of there

being no conspiracy of which Brian was a part, you

are left with a quite different picture presented

to the jury and it is not suggested - - -

McHUGH J: But you said "of which Brian was not a part" but

it is a question of proof. It seems to me that the

fact that Brian was acquitted has got nothing

whatever to do with your point, whether it is good

or bad.	Your point would be good even if Brian had
never appealed against his conviction.	Your point

would be that there is just no evidence to prove

the conspiracy which the Crown alleged.

Mickelberg 19 24/10/90

MR McCUSKER:  And that, of course, is our second point,

Your Honour.

McHUGH J: But the fact is that what the jury have got to be

satisfied beyond reasonable doubt is that there is

a conspiracy between the three brothers so far as

your client is concerned, even though they were

unable to be convinced beyond reasonable doubt of

that conspiracy when they considered the evidence

against Brian?

MR McCUSKER:  Your Honour, the starting point of this is

that Darby's case changed what was considered to be

the old rule which had some considerable and
important effect or application so far as the

administration of the criminal justice system is

concerned. In his dissenting judgment,

Mr Justice Murphy put it that a verdict of

acquittal must mean something. And there is a

certain strangeness - if we can put it as low as

that - about a person being convicted of a

conspiracy with Brian and Raymond here when Brian

has been acquitted of that same conspiracy.

DAWSON J:	I do not find it strange at all.
McHUGH J:	I do not find it strange, at all.  I mean, just

to take the case that you concede:  if Peter had

admitted that he was a party to the conspiracy and

Brian had not and there was no other evidence

against Brian, what would be strange about
convicting Peter of a conspiracy to which he admits

to?

MR McCUSKER:  If that were the case, and we accept that that

is the exception perhaps that arises from Darby's

case, but where there is no such clear evidence of

an admission of the conspiracy alleged which was

the point in Darby's case, we then come back to a

trial by the Court of Criminal Appeal of the charge

that is now a different charge, effectively.

If I can put it another way, the Court of

Criminal Appeal here has said, "Well, there's

evidence of some combination and we think that

there was sufficient evidence on which the jury

could have convicted him of conspiracy."

DEANE J: But do you not have to spell it out in a series of

propositions and then come to the specific? I

mean, if in one trial the jury has convicted three

people of conspiracy with one another and the Court

of Appeal subsequently holds there was no evidence

against one of them, it must give rise to a

question about the safeness of the verdict against

the others.

Mickelberg 20 24/10/90

The next question must be: was there evidence

on which the jury could have convicted the other

two acting on the basis that the third was going to be acquitted? Then the next question must be: if

there was such evidence, how was the trial

affected? Or if there was not such evidence, how

was the trial affected by the admission of evidence

which was only admissible on the basis there was a

conspiracy between the three? From there one comes

to the next point, I suppose: can one sustain it
as conspiracy between two even though that was

never charged and the trial was not conducted on

that basis?

MR McCUSKER:	That is so. And coming to the penultimate proposition, Your Honour, that is the question of
how the trial was affected by the charge being
against Brian, I have already referred Your Honours to the considerable evidence which was considered
to be of importance by the prosecution and put to
the jury of Brian's participation in the conspiracy
and his importance to the conspiracy.

DEANE J: Except that has a problem in relation to quite a

deal of it, has it not, in that the jury would, one

presumes, have been instructed it was not

admissible against Peter.

MR McCUSKER: That is so, in fact, I think the direction

that was given was a direction to the effect that

unless they were satisfied beyond reasonable doubt of involvement of Peter in the conspiracy - taking his case - then they could not use, as against him,

evidence admissible as against Raymond and -

DEANE J:  No, I did not have that in mind. Was not a large

part of it evidence which even assuming all three

were involved in the conspiracy would not have been

admissible against Peter in the sense that it was

subsequent statements made by Brian.

MR McCUSKER:  Yes, yes that is so. Yes, all of the

out-of-court admissions, or so-called admissions,

by Brian, and indeed Raymond, were not admissibles

against Peter.

DEANE J: That seems to be the bulk of the evidence you

refer to in that attachment.

MR McCUSKER:  In terms of number of pages, yes, Your Honour,

but in terms of the importance of Brian's

involvement we have simply enumerated the evidence

that was pressed as to Brian being a pilot;

working at Jandakot; having therefore the facility

to fly the plane and the gold away; living near

Jandakot; all of this was pressed in, indeed,

evidence in-chief - - -

Mickelberg 21 24/10/90

DAWSON J:  Why is that inadmissible against Peter and

Raymond?

MR McCUSKER: Well, Your Honour, in the absence of some

evidence - - -

DAWSON J: Well, they are attempting to prove the fact; it

is objective evidence. I can understand you saying

what is inadmissible is evidence which would only

be admissible on the basis that there was an agency

- a conspiracy - that is one thing, that is the

admissions - put them on one side - but the Crown

is quite free to call evidence that there was a

third brother who had the capacity to do what they

alleged was done. Why could it not?

MR McCUSKER:	As against Peter, Your Honour?
DAWSON J: Yes.
McHUGH J: As against all of them.	Supposing Brian had a

separate trial. Why was not evidence admissible

against Peter in a joint trial just between Peter

and Raymond, that Brian operated from premises at

Jandakot Airport; that he and Peter had purchased gold in 1980; that Brian had taken a week's leave

from Port Hedland; that the gold was taken out to

Jandakot Airport; and that a Porsche owned by

Brian had been used or seen near the scene of one

of the arsons; all of that was surely admissible

in proof of a charge of conspiracy, that is a joint

conspiracy of the three brothers even though Brian

was not standing trial with the other two.

MR McCUSKER:  That may be so, Your Honour. The fact is that

in this case there was a joint trial and the jury's

conclusion was based on, in the end, the totality
of the evidence that there was a conspiracy such as
that put forward as a hypothesis by the

prosecution.

McHUGH J:  The trial judge would have told the jury that

they could not use Brian's admissions to the police

against the other two.

MR McCUSKER: 

Yes, that is certainly the case, but they

nevertheless have a prosecution case presented on
the basis that their brother is a party to the
conspiracy and he is the one who, on the
hypothesis, has flown the gold away some where and

he is the one of two of the brothers who had

experience - Peter was not - in buying gold from

the Mint with a bank cheque.  Now, if the jury had

been told at the end of the trial, "Brian should be

acquitted, there is no evidence as against him that

he was a part of this conspiracy", it may be the
case, Your Honour, that the jury would have

Mickelberg 22 24/10/90

convicted Peter but it is, I repeat, speculation as

to what the jury in this trial would have done

faced with that. It may have been that they

thought that Brian's participation was such an

important ingredient in the alleged conspiracy that

once he fell out they reconsidered the question of

whether there was a conspiracy at all.

McHUGH J: Well, just getting to the question of the real

substance of it - leave aside the names - what the

Crown was saying here was that there was a

conspiracy with Raymond and another person as well.

Now, let it be assumed that there is not enough

evidence to convict Brian of being the third

person, there was certainly enough evidence, was

there not, to suggest that there was another person

involved.

MR McCUSKER:	No, Your Honour, the evidence on that is really equivocal, it is quite neutral. There was
some evidence of Hunt, as I have said, the man from
the Mint that there were two people recalled giving
no doubt false names, Mr Fryer and someone else,
and he assumed, he said, that there were two
different people. It is merely an assumption but
there is nothing in the circumstances that point,
necessarily, to there being more than one person
involved from beginning to end.

DAWSON J: That is what I was challenging before. There was

certainly evidence that involved Peter.

MR McCUSKER: Well, that is a different question.

DAWSON J: It is not a different question, it is the same

question.

MR McCUSKER:	There is evidence that Peter purchased the vehicle which was seen later, on the day of the
swindle, outside Barker House. There is no
evidence that the man who was there was Peter.
DAWSON J: There is no direct evidence that there was more

than one man involved, save that the man says there

were two different voices.

MR MCCUSKER:  Yes.

DAWSON J: But there is a wealth of evidence in which one

can infer that at least two were involved.

MR McCUSKER: Well, Your Honour, the man who was seen

outside Barker House is not identified as Peter.

There is no identification evidence - - -

DAWSON J: True, but taking the whole of the evidence

against Peter, in particular the interview with the

Mickelberg 23 24/10/90

police, one is left with the impression he was

involved in some way.

MR MCCUSKER:  One of the ways, Your Honour, looking at that

evidence of interview, was simply that at the time

he was interviewed he knew or believed he knew

where the gold was.

DAWSON J:  Not at all. It does not explain why the car

which he bought, giving false information to the

vendors, was observed there and was subsequently

disposed of in a way which would indicate a guilt

of some sort.

MR MCCUSKER: Well, yes, Your Honour, that is so but equally

it is not conclusive like - - -

DAWSON J:	Of course it is not conclusive, but I am saying on the totality of the evidence there is a strong inference that Peter was involved in some way.
Now, that by itself does not explain the extent of
his participation but then once you establish that
you can take the next step.

MR McCUSKER: That being to introduce as against him

evidence solely admissible against Raymond?

DAWSON J:	No, then once you have said that he was a party to the combination, first of all you establish the
combination and that evidence establishes a
combination, or the jury can find that it did, then
you are entitled to look to his participation in
the combination and once there is reasonable
evidence of his participation, and the evidence
establishes that, you are entitled to take into account the acts of his co-conspirators, and that
would include in this case, Raymond, and, the
Crown would allege, Brian, but of course you say
they did not prove anything against Brian. Well,
all right, if that is so then Brian is excluded but
it does not exclude Peter and Raymond.

MR McCUSKER:

The first question, though, Your Honour, is

whether there was clear proof of the existence of a

combination. There have been cases, for example,

where the clear evidence exists because a number of

people have been involved in the robbery and so you

know there is more than one person. Here, from

beginning to end, there was no clear evidence that

there was more than one person involved.

DAWSON J: There is no direct evidence but combination is

almost inevitably a matter of inference; that is,

circumstantial evidence and there was

circumstantial evidence here.

Mickelberg 24 24/10/90

MR McCUSKER: Well, the evidence of what Peter said to the

police officers, in my submission, is quite

equivocal as to his being a party to any

combination.

DAWSON J: Well, you said that but that does not seem - I am

just speaking for myself - to be so because he was

involved in acts prior to the theft of the gold or

contemporaneous with it which, when combined with

the admissions which he made to the police, leads

to certain inferences.

MR McCUSKER: Well, Your Honour, you see there being no

evidence that he was the man with the car outside

Barker House and there being no evidence that the

car was used in any specified way for the purpose

of the swindle, it is our submission that that area of evidence is entirely neutral. The fact that the

car was subsequently burned - - -

DAWSON J: And, it is not - I mean, one does not want to go

through the evidence in detail - it just was not a

car; it was a car equipped to carry a CB radio and

the evidence is that the CB radio was used to co-

ordinate events on the day and so on.	It is pretty
strong evidence.

MR McCUSKER:	Yes. Well, Your Honour, on the question of the CB radio, of course, with no evidence that this
car was uniquely fitted with a CB radio at that
time; there may well have been many other cars with CB radios so it is simply a fact that it had a
radio.
DAWSON J: Of course.	It is a combination of a whole lot of

events.

MASON CJ:  Mr Mccusker, no doubt as a result of questions

put to you we seem to have wandered far away from

discussion of those points that might merit the

grant of special leave. Now, can we come back to

that aspect of the case and can we secure from you

will involve identifying what you say was the error	say warrant the grant of special leave and that some recapitulation of the precise points that you
of law or errors of law committed by the Court of
Criminal Appeal and identifying the propositions of
law for which you contend. Now, can you do that
for us?

MR McCUSKER:  I will endeavour to, Your Honour. The

proposition of law is that when considering the

justice of the case the Court should do more; that

is, for the purpose of determining whether the

conviction can stand consistently with the

acquittal of the other alleged co-conspirator.	The
Court must do more than simply determine whether

Mickelberg 25 24/10/90

there was sufficient evidence on which a jury might

have convicted the remaining co-conspirators of the
offence charged. That is the first proposition.

Second, what the Court must do in considering the justice of the case is to not determe whether

it might have convicted but whether the jury

inevitably would have convicted as in Darby's case

because of the existence of clear confessional

evidence.

It is not sufficient to speculate - this is

the third proposition allied to the second - on the

possibility that the jury, faced with that
different circumstance, that is, the acquittal of

Brian, might have convicted the remaining co-conspirators and by way of illustration of that,

suppose Brian had been tried first on a separate

trial of conspiracy which was a suggestion that I

think the Court in Darby's case thought was

appropriate, where the cases were substantially

different, or significant differences, and Brian

had been acquitted of that charge and the other two

had then been tried at a separate trial on the same

charge of conspiring with Brian, the question of

whether the jury would have convicted them on that same charge must be considered in the light of the

acquittal. That would be an added factor.

The acquittal, it is our submission, must have some significance and, as a matter of common sense,

a jury would be unlikely to convict a person of
conspiring with a man who was acquitted of the same

alleged conspiratorial agreement.

MASON CJ: But, when the essence of the charge is swindling

the Mint, what materiality does the acquittal of

Brian have when you are left still with two

conspirators?

MR McCUSKER:	Your Honour, with great respect, the essence of the charge is not swindling the Mint; that is
the substantive charge. The essence of this charge
being conspiracy is an agreement and the evil which
is said to be involved in a conspiracy is the
combination and the extent of it as well as its
nature.

Now, the allegation here was a combination of

three persons and the nature of it, as I have

already adumbrated, was that as one of the persons, combination in the face of the acquittal of Brian,

in my submission, is no longer as a matter of, at

least, ordinary understanding - - -

Mickelberg 26 24/10/90

MASON CJ: But, in a sense, the object of the conspiracy,

the swindling of the Mint, was complete by the time

that Brian's activity would have taken place, so

why is his participation as a conspirator essential

to the conspiracy charge?

MR McCUSKER:	It is not essential but it is an important aspect of the conspiracy charge as presented to the
jury.  One can think of a different conspiracy
charge where his participation would be of no
importance but that was not the way that the jury
had the case presented to it.
BRENNAN J:	Mr Mccusker, your opening propositions referred to the justice of the case.
MR McCUSKER:	Yes.

BRENNAN J: Is that a phrase which is taken from the

judgment of the majority in Darby at page 678?

MR McCUSKER: It is, Your Honour, yes.

BRENNAN J: Well, now, as I read it, that sentence which is

at the bottom of page 678, 148 CLR, simply says

that the determination which the Court then makes

as to the relevant proposition of law is a

determination which:

will focus upon the justice of the case rather

than upon the technical obscurities that now

confound the subject.

MR MCCUSKER:  Yes.

BRENNAN J: Well, is there any proposition of law in Reg v

Darby save that which appears in the antecedent

sentence; namely, that:

the conviction of a conspirator whether tried
together with or separately from an alleged

co-conspirator may stand notwithstanding that

the latter is or may be acquitted unless in

all the circumstances of the case his

conviction is inconsistent with the acquittal

of the other person.

MR McCUSKER:  No, there is not, Your Honour.

BRENNAN J: But, that is the proposition.

MR McCUSKER:  It is a question of the working out that the

manner in which that determination is to take

place.

BRENNAN J: Very well. Then, the way in which it is to take

place is this:  in application to the present case,

Mickelberg 27 24/10/90

there is no necessary inconsistency between the

acquittal of Brian and the conviction of Peter.	No
necessary inconsistency; the two can stand together. Darby's case says so.

MR MCCUSKER: In theory, yes.

BRENNAN J: In theory.

MR MCCUSKER:  Yes.

BRENNAN J: So, the question is whether or not the

conviction of Peter is in all the circumstances

inconsistent with the acquittal of Brian.

MR MCCUSKER:  Yes.

BRENNAN J: That depends, in the first instance, upon

identifying what the conspiracy is that is charged.

If the conspiracy is a conspiracy to swindle the

Mint, then where is there any reason to suspect

that there is some necessary inconsistency between

the acquittal of one of those who is charged as a

party to that conspiracy and the conviction of

another?

MR McCUSKER:  It depends, Your Honour, on the emphasis one

gives to the ingredient of conspiracy. If it is

simply looked at a conspiracy no matter with whom,

to swindle the Mint, then I accept Your Honour's

proposition with respect, but if the importance of

conspiracy, the essence of it, lies in the

combination and the parties to that combination,

then the acquittal of Brian means that the

combination as alleged did not exist.

BRENNAN J: Well, that depends on whether the parties to the

combination are essential to the identification of

the conspiracy charged. Now, in this case there is

clear evidence that Raymond was involved at least

to the extent of producing the WABS cheques and so

forth. There is evidence which the Court of

Criminal Appeal has construed as involving Peter in

the ways which are indicated at page 1565 and the

following pages.

Now, given those two factors together, and I

am asking you to assume for this purpose that the

Court of Criminal Appeal draws the correct

inferences, there is then established, is there

not, a conspiracy at least between those two to

swindle the Mint, and it is a conspiracy which

involves in all likelihood a third person, namely,

the person who is to take the gold away.

MR MCCUSKER: That is a possibility, Your Honour, but we are

here looking at hypotheses. There is no evidence

Mickelberg 28 24/10/90

that there had to be a third person, or even a

second person to take the gold away. But the Crown

case put to the jury was that there was such a

person and it fitted logically, Brian fitted

logically into that third person's shoes. The jury

may have felt comfortable with the finding that

there was a conspiracy involving all three.

BRENNAN J: But you are going now to what the jury may or

may not have done.

MR McCUSKER:	Yes.
BRENNAN J:	My question to you is based on the issue of inconsistency in an acquittal, and where is it that
one finds an inconsistency between the acquittal of
Brian and the conviction of Peter, if you identify
the conspiracy as a conspiracy to swindle the Mint
consisting, so far as the overt acts are concerned,
in the actions done by Raymond that are proved, the actions which the Court of Criminal Appeal say were
established as against Peter, and the fact that
gold was taken away from Jandakot by somebody?
MR McCUSKER:	I appreciate that in what he said

Justice Murphy was dissenting in Darby's case, but

he did describe it as, I think, in somewhat

colourful terms as being an outrage on the legal

system, or words to that effect, when it was

suggested, as he put it, that you could have a
conviction of (a) conspiring with (b)
notwithstanding that (b) is acquitted of that same

conspiracy.

Now, where, as it were, the modification of

that approach is that, "Well, there is no problem

if (a) has, in fact, admitted his part in that

alleged conspiracy", why should not (a)'s

conviction stand? But once we have as here no

admission of a partner conspiracy, we are looking at the position where Peter has been convicted of conspiring with Brian and with Raymond, Brian is

will not put it any higher than that - that Peter	acquitted; so that we then have the anomaly - I
is convicted of a conspiracy with a man who is acquitted of the same conspiracy. That may occur and be understandable where Peter has admitted the conspiracy, but otherwise we are simply looking at
what a jury might have found on the evidence had
that been the case put to them.

BRENNAN J:  I construe that answer, Mr Mccusker, as relating

to the circumstances of the evidence in this case

and its probative force which was not the matter

which I was directing your attention to, and

further, to the question of the identification of a

conspiracy as being conspiracy identified by

Mickelberg 29 24/10/90

reference to the parties to it, whereas, my
question was postulated on the basis that the

conspiracy was identified by reference to the

purpose of the conspiracy, the conspiracy being at

least between Peter and Raymond.

MR McCUSKER: Well, if that is the sole definition of "a

conspiracy", that is, a conspiracy between Peter

and Raymond, then yes, I accept Your Honour's - - -

BRENNAN J:  I am not saying they were the only parties to

it, but the conspiracy is identified as "a

conspiracy to swindle the Mint", and it is known

that there are at least two participants in it,

namely Peter and Raymond.

MR McCUSKER:  Yes but, Your Honour, that was not this

situation. This is a case which we say calls for
consideration of special leave where there are

three identified parties, allegedly identified, and there is no allegation of divers others. It is not

that situation.

BRENNAN J:  What your case is then is that the nature of

this charge was that the conspiracy was identified

not simply by reference to its purpose, but by

reference to the parties?

MR MCCUSKER:  The parties.

BRENNAN J: And unless one can find in the evidence before

the jury evidence admissible against each of the

conspirators that all other conspirators were

parties, there must be an acquittal?

MR McCUSKER:  Or putting it slightly differently,

Your Honour, if one of those alleged parties is

acquitted, then absent the circumstance that the

other convicted parties have admitted the alleged

conspiracy, their convictions cannot stand

consistently with the acquittal of the third party.

That is the proposition.

BRENNAN J: 

I understand the submission.

MR McCUSKER: 

And in terms of examining the circumstances,

then one has to consider, one must consider not
only whether there is evidence of admission. If

there were, that would be the end of the matter,

and we would say that Darby's case governs the

situation in that exceptional circumstance. But

where that exceptional circumstance does not exist

in an admission, then a survey of the evidence

confined to the weight of the evidence against
Peter as compared with the acquitted Brian, is not

sufficient.  One must also consider the possibility

of the impact on the trial of the charge being

Mickelberg 30 24/10/90

against Brian also and his ultimate acquittal of

that charge would mean, if the jury were so

directed, that the jury would be told the

allegation of conspiracy involving Brian is one

which you cannot sustain as against Brian, but you

may, if you wish, sustain it on this evidence as

against Peter.

The jury, in my respectful submission, would be likely in that situation to refuse to find the

conspiracy as alleged. It is really a question of speculation that was not what was put to the jury. By their verdict they accepted the hypothesis of

the Crown that there was a conspiracy between all

three.

Could I direct Your Honours' attention on the question of what the charge was. I mentioned it

was not of conspiring together and divers others?

At page 1 volume I the indictment itself appears,

which shows that the charge was simply against the

three of them conspiring together.

Your Honour Mr Justice Dawson raised with me

the question of the oral admissions on which the

Court of Criminal Appeal did place considerable

weight. Your Honour, this Court in

Peter Mickelberg v Reg at page 501, in the joint

judgment of Justices Toohey and Gaudron, the top of

the first column of the report - - -

BRENNAN J: Which volume is that?

MR McCUSKER: 

Volume 1 and report number 1, at the top of

the first column referring to the statements made
by Peter to investigating police officers said:

These statements did not amount to an

admission of guilt of the offence charged or

of any particular participation by Peter in

those offences or in any of them. The

evidence, if accepted, was capable of showing

some knowledge of those offences.

And that is as far as it went. Now, Your Honour,

before the Court of Criminal Appeal there was
considerable weight placed on the so-called

admissions made by Peter to the police officers.

It is our submission that not only should the Court

of Criminal Appeal have considered itself bound by
the finding that was made by this Court as to the
nature or the effect of the so-called admissions,

but also in any event, on analysis of the so-called

admissions by Peter it is clear that they were no
more than equivocal and at best admissions of some

knowledge of the offences as distinct from

participation in a combination.

Mickelberg 31 24/10/90

I think Your Honour Justice Dawson suggested

that that was evidence which pointed to the

existence of a combination and Peter's

participation in it.

DAWSON J: Yes, construed in all the circumstances, not

looking at the admissions or so-called admissions

by themselves.

MR McCUSKER: 

Yes. Well, if one takes those admissions, or

those statements made to police officers, there is
considerable doubt thrown on the admissions by a
number of matters, that is, as to whether the

admissions should be given much, if any, weight.

One aspect is that in the course of the so-called

admissions Peter allegedly .said, "So what, if I was

not at the unit very much" - here referring to a

unit at Rupert Street, Subiaco which was supposed

to be a safe house for the purpose of the swindle.

The objective evidence was that might suggest

that he was impliedly admitting that that was the

purpose for which the unit had been leased, that

is, a safe house, and that he was not there very

much. But the objective evidence shows, and it has

been summarized in a summary which is attached to

the outline of submissions, a summary of transcript

references re grounds of appeal that, in fact,

Peter was in regular occupation of the property at

Rupert Street said to have been not used by him

very much according to the way it was put to him

and implied and acknowledged by him as being the

case; and furthermore, if it were indeed a correct

hypothesis as it was put forward based on those

alleged·oral admissions that it was to be used for

the purpose of the Mint swindle, it was summarized

in the evidence which was referred to in a summary,

it is an extraordinary proposition because Peter

had identified himself to the real estate agent

correctly. He had not used a false name. He had

had the licence and all his relevant papers

transferred to that address under his correct name,

and so on. So there is ample evidence that he was not

disguising the fact that he, Peter Mickelberg, was

living in the unit which was said, nevertheless, to

be as part of the Crown's proposition - which was

said to be for the purpose of a safe house. Your

Honour, this relates to ground 2.2(c) of the draft

grounds of appeal.

BRENNAN J: Are we still dealing with the grounds for

granting special leave as distinct from the appeal?

MR McCUSKER:  Yes, Your Honour, because when this matter was

referred back to the Court of Criminal Appeal it

Mickelberg 32 24/10/90

was referred back on the basis that there were two

substantial issues for determination: one was the question of whether Peter's conviction could stand

consistently with the acquittal of Brian. Related to it was said the question of whether the verdict

was unsafe and unsatisfactory.

In my submission, the Court of Criminal

Appeal's determination of both of those matters is

a matter of importance to be reviewed by this Court

in the interests of justice.

DAWSON J:  Why is the latter one a matter of importance?

You want us to go through the evidence again and

come to a different conclusion. There is nothing

important about that.

MR McCUSKER: Well, where there are palpable errors made by

the Court of Criminal Appeal in its analysis of the

evidence and the question relates to whether the

verdict is unsafe or unsatisfactory, yes, I would

invite this Court - - -

DAWSON J: There is no element of principle in that, is

there?

MR McCUSKER:  The difficulty, Your Honour, is that the two

matters are intertwined. The question of whether

the Court of Criminal Appeal has taken the correct

approach in applying the principle in Darby's case

in determining inconsistency or not is linked up

with the question of what analysis they made of the

evidence.

I would therefore invite Your Honours to

consider the analysis that was made and the

references which appear in the summary of

transcript.

DAWSON J:  You have identified the principle which they

employed and they employed it. That is all there

is to that.

MR McCUSKER:  That is so. They employed a principle which,

in our submission - - -

DAWSON J:  So it is a question of whether they were wrong in

principle or not, that is it?

MR McCUSKER: That is so, yes. Could I just briefly mention

the other point which is raised, Your Honours, by

this application for special leave? That is the

question of whether, in accordance with the views

expressed by this Court in Carr's case, the verdict

was rendered unsafe and unsatisfactory by reason of

the jury being invited to consider without any

warning the evidence of Peter's unsigned oral, out

Mickelberg 33 24/10/90

of court statements, said to have been made to the

police.

The circumstances in which those statements

were made were such as to give rise to real

concern. The circumstances were that Peter, on the

evidence that was given to the court, had

previously, before he was picked up and taken to

Belmont Police Station, had previously been told by

his solicitor - and in fact, he carried a letter

from his solicitor, Mr Cannon, to the effect that

he was aware that he was not obliged to make any

statement to the police and did not propose to do
so. His evidence was that he had not made any

statement to the police, and yet on the evidence of

the police there were these statements which are

now relied upon and were at the trial, as

constituting some form of implied admission, and on

which the Court of Criminal Appeal has placed great

weight.

And in considering the question of whether the

justice of the case means that the conviction may

stand consistently with the acquittal of Brian, the

Court of Criminal Appeal has traversed the

evidence, but in so doing has failed to take into
account the inherently dangerous nature of the

evidence of the unsigned oral statements, the oral

so-called admissions, and has failed to take into

account the possibility that the jury, if properly

warned, would have discounted those admissions as

evidence supporting the continued conviction on

that charge of Peter.

MASON CJ: Mr Mccusker is that all you want to put to us in

support of the application for special leave?

MR McCUSKER: It is, Your Honour, yes.

MASON CJ: That being so, the Court will take a short

adjournment in order to consider the course it will

take in the matter.

AT 12.14 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.38 PM:

MASON CJ: The Court need not trouble you, Mr McKechnie.

What I am about to say reflects the views of the members of the Court other than Justice Deane. Having regard to the interpretation that the Court of Criminal Appeal was entitled to place upon the

counts of conspiracy contained in the indictment,

there is no inconsistency between the conviction of

Mickelberg 34 24/10/90

the applicant, Peter Mickelberg, and the acquittal

of Brian Mickelberg.

That being so, we are not persuaded that there

was any error of law on the part of the Court of

Criminal Appeal. The application for special leave

is therefore refused.

AT 12.39 PM THE MATTER WAS ADJOURNED SINE DIE

Mickelberg 35 24/10/90