Mickelberg v The Queen

This matter came before the High Court of Australia on an application for special leave to appeal by the applicant, Peter Mickelberg, represented by Mr M.J. McCusker, QC, and Mr P.K. Searle. The Crown was represented by Mr J.R. McKechnie, OC, and Mrs M.A. Yeats. The core of the dispute concerned the application and meaning of the principle established in *Darby's case* concerning the consistency of convictions and acquittals of co-conspirators.

The primary legal issue before the High Court was whether the applicant's conviction could stand given the acquittal of his co-conspirators, specifically in light of the High Court's decision in *Darby's case*. The applicant argued that the principle established in *Darby's case* was no longer the law of Australia, or alternatively, that its application in his circumstances was incorrect. This involved a consideration of the "old rule" which suggested that a conviction of one co-conspirator could not stand alongside the acquittal of another.

The court was required to determine the legal effect of *Darby's case*, which held that it was not an inflexible rule that a conviction of one alleged co-conspirator must be quashed if another co-conspirator was acquitted. Instead, *Darby's case* established that such a question falls to be determined by reference to all the circumstances of the case and according to the justice of the case. The applicant's history involved a joint trial in February 1983 with his brothers, Raymond and Brian, on charges including conspiracy to defraud the Mint, as well as substantive charges such as obtaining gold by false pretenses, arson, and breaking and entering.

The applicant sought special leave to appeal on the grounds that the conviction of one co-conspirator could not stand consistently with the acquittal of another, a principle that *Darby's case* had clarified was not an inflexible rule. The applicant's argument focused on the application and meaning of *Darby's case* in the context of his own conviction and the acquittals of his co-accused.