Nirta v The Queen

[1983] FCA 360

Re: DOMENICO NIRTA; ANTONIO GIORGI; STEFANO PELLE
And: THE QUEEN
Re: THE QUEEN
And: STEFANO PELLE; ANTONIO GIORGI; DOMENICO NIRTA; GIOVANNI MAMMOLITI;
FILIPPO PIZZATA; DOMENICO CONDEMI (1983) 79 FLR 190
Nos. ACT G46, G65, G68, G73, G75, G76, G77, G78, G79, G80 of 1983
Criminal Law and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Gallop(2) and Jenkinson(3) JJ.

CATCHWORDS

Criminal Law - Conspiracy to commit an offence against a law of the Commonwealth - Having cannabis in possession for the purpose of supply - Form of Indictment - Directions to jury concerning possession and complicity.

Crimes Act 1914 - secns. 5, 86.

Poisons and Narcotic Drugs Ordinance 1978 (A.C.T.) - s.4(3).

Criminal Law and Procedure - Conspiracy to commit an offence against a law of the Commonwealth - Having cannabis in possession for the purpose of supply - Form of indictment - Directions to jury concerning possession and complicity - Crimes Act 1914(Cth), ss 5, 86 - Poisons and Narcotic Drugs Ordinance 1978 (ACT), s 4(3).

HEADNOTE

The six appellants were charged on indictment with conspiracy to possess cannabis for the purpose of supplying it to other persons.

The Crown also stated early in the trial that by the terms of the second indictment the Crown was intending to allege an offence against s 86(1)(a) of the Crimes Act 1914 (Cth).

The factual situation relied upon by the Crown was that the six accused had done work in or in connection with the preparation of an area in remote bushland for the planting of cannabis seed. Others, not named and not known, may also have been involved. A large amount of seed was found on the site at the time police intervened. There was no cannabis then growing, and no seed sown and no direct evidence as to what was intended to be done, or by whom, when a crop, if any, had developed. The seed was not, for the purposes of the case, treated as cannabis.

At the end of the Crown case there were submissions on behalf of various accused that a prima facie case had not been established.

The trial judge ruled against the submission and the trial proceeded and the jury returned a verdict of guilty in respect of each accused.

The accused appealed. The substantial submission made by them was that the information did not disclose an offence known to the law. It was submitted that the law does not provide for an offence of conspiracy to commit an offence constituted by a state of affairs rather than by the commission of an act or omission.

Held: (1) The terms of the indictment were inappropriate to a charge of conspiracy to commit an offence against a law of the Commonwealth contrary to s 86(1)(a) of the Crimes Act.

(2) A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act or to do a lawful act by unlawful means. So long as such a desire rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself and the act of each of the parties is punishable if for a criminal object or for the use of criminal means.

Mulcahy v. The Queen (1868) LR 3 HL 306; R v. Meyrick (1929) 21 Cr App Rep 94 and DPP v. Nock (1978) AC 979, applied.

(3) The gist of the crime of conspiracy is the agreement of two or more persons to effect an improper purpose. The crime is committed whenever two or more persons agree to do something which they know to be unlawful or immoral, whether as an end in itself or as a means of securing some object lawful or unlawful.

Independent Oil Industries Ltd v. The Shell Co of Australia Ltd (1937) 37 SR (NSW) 394.

(4) The terms of the summing up were such that a jury might be led to suppose that if an accused who helped to prepare ground for a crop of cannabis plants believed that the expected crop will come into the possession of some other person, who will have possession of it for the purpose of supply, the accused is guilty of the conspiracy charged. Such a direction is likely to have misled the jury about what were the constituent elements of the offence charged.

(5) Accused persons are entitled to and should be furnished with the precise particulars of the overt acts relied upon by the Crown to establish the conspiracy charged so that there may be clearly defined issues before the court and the jury.

R v. Weaver (1931) 45 CLR 321, applied.

(6) A count in conspiracy must comply with the general rule of charging one offence only.

R v. Molloy (1921) 2 KB 364; R v. Disney (1933) 2 KB 138, applied.

(7) The appeals against convictions allowed; the appeals against sentences dismissed; the verdicts, convictions and sentences quashed and no new trial ordered.

Per Gallop J - An indictment alleging conspiracy has become an increasingly important weapon in the Prosecutor's armoury. It can create a serious danger of unfairness to the accused and has evoked widespread criticism from courts and commentators.

Poulterers' case (1610) 9 Co Rep 55 b; 77 ER 813; R v. Kempley (1944) 44 SR (NSW) 416; R v. Ongley (1940) 57 WN (NSW) 116; R v. Grant (1975) 2 NZLR 165; R v. Heath (1810) Russ & Ry 184; 168 ER 750; Dugdale v. The Queen (1853) 1 E & B 435; 118 ER 499, referred to.

HEARING

Canberra, 1983, November 29; December 2, 7. #DATE 7:12:1983

F J Purnell, for the first appellant.

K Crispin, for the second appellant.

D Buchanan, for the third appellant.

M R Einfeld QC, C F Kilduff and A Gillespie-Jones, for the fourth appellant.

D A Palmer and G Walker, for the fifth and sixth appellants.

R S Hulme QC and J Adams, for the Crown.

Cur adv vult

Solicitors for the first appellant: J G McMahon & Co.

Solicitor for the second appellant: W G Pierce.

Solicitors for the third appellant: MacPhillamy Cummins & Gibson.

Solicitors for the fourth appellant: Elthringtons.

Solicitor for the fifth and sixth appellants: G M Wheeler, Legal Aid Office.

Solicitor for the Crown: T A Sherman, Acting Commonwealth Crown Solicitor.

MPS

ORDER

1. The appeals against conviction be allowed.

2. The appeals against sentence be dismissed.

3. The verdicts, convictions and sentences be quashed.

4. If any party seeks further orders, notice be given to the Registrar of the Federal Court and all other parties before 4.00 p.m. on 5 December 1983.

JUDGE1

The Court has already made orders in this matter, allowing the appeals against conviction and quashing the verdicts, convictions and sentences of the Supreme Court. We now give our reasons.

I agree in substance with the reasons of Gallop J. and Jenkinson J., and will add only a few comments.

It seems to me that by attempting to establish a conspiracy, instead of relying upon such specific charges as it could, the Crown created for itself almost insuperable difficulties. These were reflected in the changing ways its case was from time to time presented. These changes must have led to confusion at the trial, and in an attempt to grapple with the Crown case, the learned Judge fell into error. A fundamental problem was that the conspiracy alleged related to a crop which had to be sewn and which had to grow, before someone with the necessary intent could have possession of it. I think it must be doubtful whether a conspirary under s.86(1)(a) of the Crimes Act 1914 ("the Act"), relating to the offence under s.4(3) of the Poisons and Narcotic Drugs Ordinance 1978 ("the Ordinance"), can exist in those circumstances, but it is unnecessary to decide the question.

It is a curious fact that the accused were never charged with the offence which was and is relied upon to support their conviction. It was in relation to the form of the charge that confusion first arose. As framed, it may be taken to allege a conspiracy at common law; certainly it does not allege a breach of s.86(1)(a) of the Act, which deals with conspiracies to commit an offence against a law of the Commonwealth. The Crown in fact relied only upon s.86(1)(a) of the Act, but did so without securing an amendment to the information. The summing-up itself did not clarify the situation.

There was debate at the outset as to the form of the information, and the words "for some person or persons" originally appearing immediately before "to have in possession" were deleted. This left uncertain what was being alleged in relation to possession, and this uncertainty remained throughout the case, nurtured by a Crown ambivalence. The learned Judge in his charge referred to possession by one or more of the conspirators or, inconsistently, by the accused or "someone else".

What has concerned me as much as anything in this case is the readiness with which the jury could, consistently with what it was told, move from proved acts of the accused, which could be assumed to be preliminary, to a conclusion that the workmen had a purpose, namely the commission of an offence under s.4(3) of the Ordinance, and then to a finding that there was a conspiracy between them to that end. When a conspiracy is sought to be proved by inference, great care must be taken in pointing out the steps, and the possibility of innocent hypotheses.

A similar situation developed in relation to aiding and abetting. The Crown at various stages relied upon s.5 of the Act, and confused with this was a notion that a conspiracy to assist by doing preparatory work established a conspiracy to have in possession for the purposes of supply, contrary to s.4(3) of the Ordinance. Apart from other considerations affecting this line of reasoning, there is no place for any such "deemed" agreement. A reference to aiding and abetting and "assisting" appeared in the summing-up, but the Crown now says this was surplusage.

JUDGE2

Having heard together appeals by 6 convicted persons against their convictions and appeals in each case by the Crown against the leniency of the sentences imposed, the court made orders on 2 December 1983 allowing all appeals against conviction and quashing the verdicts, convictions and sentences imposed. The court further ordered that the appeals by the Crown against the leniency of the sentences be dismissed as it became unnecessary to embark upon those appeals. At the same time the court intimated that it would give reasons later.

The 6 convicted persons were jointly charged but arraigned separately on an indictment containing a single count in the following terms:

"MICHAEL HENRY PEEDOM. a person authorised to prosecute for Her Majesty in this behalf on the 5th day of April 1983 INFORMS THE COURT AND CHARGES that between the 1st day of January 1980 and the 30th day of October 1980 in the Australian Capital Territory STEFANO PELLE, DOMENICO CONDEMI, ANTONIO GEORGI, DOMENICO NIRTA, FILLIP PIZZATA and GIOVANNI MAMOLITI did conspire together and with another person or persons unknown to have in possession, for the purpose of supplying the same to an other person or to other persons, a controlled substance, to wit, cannabis."

Each accused pleaded not guilty. After a very long hearing each accused was convicted on the jury's verdicts.

At the outset of the hearing of the appeal, counsel for the appellant Pelle sought leave to make a preliminary submission not involving any dispute of fact on the basis that if the submission succeeded, the appeals against conviction could not stand and further argument would be unnecessary. This course being agreeable to all parties, the court heard argument on behalf of all convicted persons and argument in answer thereto by the Crown.

The substantial submission made by counsel for Pelle and adopted by counsel for the other convicted persons, was that the information did not disclose an offence known to the law. It was submitted that the law does not provide for an offence of conspiracy to commit an offence constituted by a state of affairs rather than by the commission of an act or omission.

In order to understand the submission it was necessary for the court to consider the terms of an earlier indictment containing two counts, the learned trial judge's ruling in regard to the appropriateness of those counts in the light of the particulars furnished, the terms of the particulars furnished, the withdrawal of the earlier indictment and substitution of the indictment in the terms set out above, the trial judge's ruling on a no prima facie case submission on behalf of each appellant and his summing up.

At the outset of the trial the Crown provided written particulars in relation to the earlier indictment which was later withdrawn, in the following terms:

"The Crown relies, inter alia, on Section 351 of the New South Wales Crimes Act as applicable in the Australian Capital Territory and on Section 5 of the Commonwealth Crimes Act and will contend that the conspiracy was for the accused to be either principals or accessories before the fact to the offence of possession. To make this clearer, the Crown submits that on a charge of a substantive offence or conspiracy to commit a substantive offence, a conviction may be obtained on evidence going no further than establishing that the accused was guilty of aiding and abetting or, as the case may be, conspiracy to aid and abet that substantive offence; similarly in the case of being an accessory before the fact or the other involvement dealt with in the statutory provisions above referred to."

The Crown also advised early in the trial that by the terms of the second indictment the Crown was intending to allege an offence against s.86(1)(a) of the Crimes Act 1914 (the Act). Section 86(1)(a) reads:

"86. (1) A person who conspires with another person -

(a) to commit an offence against a law of the Commonwealth; . . . . shall be guilty of an indictable offence."

In outlining the way in which the Crown case was to be put, the Crown Prosecutor had this to say on the first day of the trial:

"'Assisting' is made an offence by reason of the Crimes Act, section 5, and the Crimes Ordinance (sic), section 351. And conspiracy, as we have laid it, is made an offence under section 86 of the Commonwealth Crimes Act. In that regard, of course, your Honour would be aware of section - I think it is 11A - of the Crimes Act which indicates that nothing in the Crimes Act is intended, as it were, to supplant the existing law, or make anything which was an offence no longer an offence, but provides against double penalty. Yes, 11(1)A."

Counsel for different accused demurred to the indictment originally presented. The ground of demurrer was that, in so far as the second count alleged a conspiracy to aid and abet another person to have possession, it did not allege a conspiracy to commit an offence against a law of the Commonwealth. The trial judge ruled that a count charging a conspiracy to have in possession is sufficiently broad to embrace or encompass aiding and abetting to have in possession. The indictment containing two counts was thereupon withdrawn, or not proceeded with, and an indictment containing a single count in the above terms was presented and the accused arraigned again on that indictment.

The case proceeded on the footing that the conspiracy charged was one under s.86(1)(a) of the Act, namely that the accused had conspired to commit an offence against a law of the Commonwealth. A law of the Commonwealth includes a law of the Territory (s.86(3) of the Act). The offence alleged was that created by s.4(3) of the Poisons and Narcotic Drugs Ordinance 1978 (the Ordinance) which reads:

"(3) A person who has a controlled substance in his possession for the purpose of supplying the substance to another person or to other persons is guilty of an offence."

Cannabis is a controlled substance.

The factual situation relied upon by the Crown as particularised and accepted for the purposes of argument on the appeal, was that the six accused had done work in or in connection with the preparation of an area in remote bushland for the planting of cannabis seed. Others, not named and not known, may also have been involved. A large amount of seed was found on the site at the time police intervened. There was no cannabis then growing, and, so far as appears, no seed sown, and no direct evidence as to what was intended to be done, or by whom, when a crop, if any, had developed. The seed was not, for the purposes of the case, treated as cannabis.

Before the trial proper commenced on the substituted indictment, there was a lengthy examination on the voir dire in the absence of the jury, and indeed before the jury was empanelled, concerning the admissibility of certain confessional material. It was not until 25 May 1983 that the trial proper commenced.

The law of the Commonwealth which the Crown alleged the accused conspired to commit was opened by the Crown Prosecutor to the jury in the following terms:

"The agreement alleged is that these accused, together with other persons unknown, agreed to possess or have in possession marijuana or rather cannabis, for the purposes of supply to another person or persons, who shortly conspired to possess marijuana for the purpose of supply. . . . . It is from the activities of the accused that I have outlined that the Crown asks you or will ask you at the end, to infer that there was a conspiracy and agreement to have in possession to possess the cannabis which would have been grown on the site from the seeds, and for the purposes of supply. It is no part of the Crown case here to allege that these particular accused were going to be the owners or the possessors of the crop itself. There will be no evidence directed to showing that it was going to be them rather than someone else who would be the ultimate owner, and I use the term very loosely, of the crop. The Crown case is that they, in preparing the ground for the planting of the crop, were assisting someone who may have been the accused, assisting in the establishment of the crop and which was going to be possessed and supplied."

In order to establish a prima facie case of conspiracy to commit an offence against a law of the Commonwealth under s.86(1)(a) of the Act, the Crown had to establish that the accused conspired together with another person or other persons and that the object of the conspiracy, that is the subject matter agreed upon, was to commit an offence against a law of the Commonwealth.

At the end of the Crown case there were submissions on behalf of various accused that a prima facie case had not been established. When ruling that there was a case to answer, His Honour said:

"On its face the indictment would appear to require proof that each of the accused conspired together and with another person or other persons unknown to have cannabis in their actual possession for the purpose of supplying it to another person or other persons. It has, however, been clear at all times through the trial that the Crown did not seek to prove its case necessarily by showing that each or all of the accused had conspired that they themselves should have actual possession of the cannabis for the purposes of supply. It was sufficient, the Crown said, to prove either that the accused conspired to have in their possession the cannabis for the purpose of supply or, failing that, to prove that they aided and abetted another person or other persons to conspire to have in his or their possession the cannabis for the purpose of supply to another person or persons. The conspiracy alleged is a conspiracy in breach of s.86 of the Crimes Act, 1914."

The trial then proceeded and the jury returned a verdict of guilty in respect of each accused.

In the course of his summing up the trial judge adhered to his earlier ruling on the no case submission and referred to the object of the conspiracy charged as follows:

"Sometimes in a conspiracy case the principal organizer or organizers is likened to the hub of the whole plan. The evidence here does not seem to be strong enough, indeed, the Crown does not say it is, to say that any one of the six accused was the hub of the whole thing. That is not the way the Crown puts its case. As a matter of law I tell you that all you need to be satisfied of is that there was a man, whether one of the accused or not, who intended to possess cannabis for the purpose of supply to another or others and if any of the accused knowingly agreed, directly or indirectly with him, to advance that plan by any means, that accused is to be considered as having conspired to possess himself, cannabis for the purpose of supply to another or others. Perhaps I had better repeat that. All you need to be satisfied of is that there was a man, whether on eof the accused or not, who intended to possess cannabis for the purpose of supply to another or others, and if any of the accused knowingly agreed directly or indirectly with him to advance that plan by any means, that accused is to be considered as having conspired to possess himself cannabis for the purpose of supply to another or others."

Having in the course of his summing up entertained submissions from counsel for further directions, the trial judge altered the last paragraph of the above passage on the next day in the following terms -

"What I should tell you about that is this: I tell you that as a matter of law any man who knowingly assists - the 'knowing' is important - lawyers usually use the word aids and abets - another to possess cannabis for the purpose of supply to another or others is to be held equally guilty with the person he assists and is deemed to possess the cannabis for the purpose of supply to another or others himself. He does not actually possess it, of course he cannot, but he is deemed to possess it. Was there any other, gentlemen? I think I have covered them all."

I return to the terms of the summing up on the first day. The trial judge continued -

"The conspiracy must have had as its initial object that somebody would have possession of the controlled substance. You have to be satisfied that the agreement was that somebody should have possession of the controlled substance in the sense which I have outlined. The possession may be of the crop when standing if you are satisfied that the necessary control was capable of being exerted having regard to remoteness, inaccessability and secrecy.

and later -

"Turning, as I earlier said I would, to what must be proved beyond reasonable doubt to be in the minds of each of the accused before he can be convicted of the conspiracy charged, I direct you that if any one of the accused agreed to assist the principal or more than one principal, to have in his possession cannabis for the purpose of supply to another or others, it does not matter that he did not know that the agreement constituted a conspiracy, provided he intended to agree to that end and did in fact agree to that end he is guilty of the conspiracy charged."

The trial judge summed up to the jury over a period of four days. With the consent of counsel for the accused he also read and delivered to the jury a memorandum signed by himself which he described as a guide and which he told the jury was not to be considered as in any way detracting from his oral directions. The memorandum contained the following first paragraph -

"Before any accused can be convicted, the Crown must prove beyond reasonable doubt in relation to that accused each and every one of the following elements of the charge in the indictment:-

(i) That between 1 January 1980 and 30 October 1980

(ii) There was a conspiracy, i.e. an agreement, to do the following uinlawful act, namely,

(iii) (a) to have in possession OR assist the having in possession by a conspirator of

(b) a controlled substance, (a crop of) cannabis

(c) for the purpose of supplying that cannabis to another person or persons

(iv) That that accused was a party to that conspiracy.

The preliminary submissions on behalf of all accused on the hearing of the appeal were:

(1) Although the trial proceeded on the basis of an allegation of a conspiracy under s.86(1)(a) of the Act, the indictment is not expressed in terms appropriate for such a charge. The convictions for conspiracy under s.86(1)(a) ought therefore to be set aside.

(2) The learned trial judge was in error in permitting the Crown to allege on the indictment presented that the object of the conspiracy was either to have in possession a controlled substance or to aid and abet or assist in someone having possession of the controlled substance. This amounted to an allegation of alternative conspiracies in a single count.

(3) The crime of having in possession a controlled substance is not capable of being the subject of a criminal conspiracy. To have in possession is a status, whereas the crime of conspiracy can only relate to acts or omissions.

(4) Under s.86(1)(a) of the Act the offence against the law of the Commonwealth which is the subject of the conspiracy can only be committed by one or other of the conspirators. It cannot be committed by some person who is not a party to the conspiracy. The trial judge's summing up contained inconsistent directions in this respect such that the jury would have been confused.

In answer to these submissions, the Crown has submitted that the indictment is appropriate in terms to allege a charge under s.86(1)(a) of the Act and that even if the drafting is defective, no accused was prejudiced by reason thereof. Further, no objection was taken by any accused to any formal defects in the indictment. The case proceeded throughout on the basis that the indictment alleged an offence against s.86(1)(a) of the Act and this was acknowledged from time to time throughout the trial. Further, when convictions were recorded on the jury's verdicts the trial judge clearly identified that the convictions were for offences against s.86 of the Act and imposed penalties accordingly.

Secondly, the Crown submitted that the terms of the indictment are appropriate to cover the alternative situations alleged by the Crown throughout the trial, namely that the conspiracy was concerned with the possession of cannabis or, alternatively, assisting that possession. In support of this submission the Crown relied upon the well-established principle that there are no degrees of participation in misdemeanours, and that a person who aids and abets the commission of a misdemeanour is treated as a principal. Thus, so the Crown submitted, the indictment alleged a single conspiracy and no more.

The crime of conspiracy originated in a statute known as the Ordinance of Conspirators (1305) 33 Edw. I. which prohibited confederacies for the false and malicious procurement of indictments, conspiracy became a common-law crime only at the beginning of the seventeenth century. Whereas prior to that time the writ of conspiracy would not lie unless the victim had actually been indicted and acquitted, the Star Chamber decided in the landmark Poulterers Case 9 Co. 55b, 77 Eng. Rep. 813 (Star Chamber 1611) that the agreement itself was punishable even if its purpose remained unexecuted. Once the focal point of the offence had shifted from the object of the agreement to the agreement itself, it was a short step to the proposition that an agreement to commit any crime was a criminal conspiracy. The eagerness of the courts, particularly the Star Chamber, to extend the scope of conspiracy was an aspect of the exceptionally vigorous growth of the criminal law generally during the seventeenth century and a reflection of the contemporary tendency to identify law with morality (Harvard Law Review, Vol.72: Developments in the Law - Criminal Conspiracy).

An indictment alleging conspiracy has become an increasingly important weapon in the Prosecutor's armory. It can create a serious danger of unfairness to the accused and has evoked wide-spread criticism from courts and law review commentators. It has been described by the Court of Criminal Appeal in R. v. Meyrick 21 CAR 94 at 99, in the following terms:

"It is, no doubt, a difficult branch of the law. Difficult in itself, and sometimes even more difficult in its application to particular facts or allegations."

With regard to the first submission set out above, the terms of the indictment were inappropriate to a charge of conspiracy to commit an offence against a law of the Commonwealth contrary to s.86(1)(a) of the Act. It seems to me that the defective drafting of the charge was the genesis of all the difficulties surrounding the trial.

The terms of the indictment were perhaps appropriate to allege a common law conspiracy, but were inappropriate to allege a conspiracy to commit an offence against a law of the Commonwealth, namely, an offence against s.4(3) of the Poisons and Narcotic Drugs Ordinance of having in possession a controlled substance for the purpose of supply to another person or other persons.

Having thus created the difficulties by the terms of its indictment, the Crown contended at the trial for a construction of the terms which would permit it to allege alternative conspiracies. This construction was adopted by the trial judge, which brings me to the second submission above that the trial judge should have ruled in such a way as to confine the Crown to an allegation of a single object of the conspiracy and not alternative objects.

A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act or to do a lawful act by unlawful means. So long as such a desire rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, is punishable if for a criminal object or for the use of criminal means (Mulcahy's case 3 English and Irish Appeals p.306 per Willes J. at 317; R. v. Meyrick 21 CAR 94 at 99, and D.P.P. v. Nock (1978) 2 A.E.R. 654). The gist of the crime of conspiracy is the agreement of two or more persons to effect an improper purpose. The crime is committed whenever two or more persons agree to do something which they know to be unlawful or immoral, whether as an end in itself or as a means of securing some object lawful or unlawful (Independent Oil Industries Ltd v. The Shell Co. of Australia Ltd 37 S.R.(N.S.W.) 394).

In all cases of conspiracy it is not necessary to prove that at some definite time the accused made a definite arrangement. It is sufficient to supply evidence that they did acts, the irresistible inference from which was, that they must have been acting in pursuance of a preconcerted arrangement to that effect. There are many different types of conspiracy. There may be a conspiracy to do unlawful acts of a particular class as and when opportunity occurs, or to effect a particular unlawful purpose employing to that end any means capable of serving it. It is not necessary to prove that every conspirator took some part in every act done in furtherance of the conspiracy. The conspiracy lies in the agreement between the conspirators. Acts done to give effect to it are merely evidence of its existence and their evidentiary significance depends on their nature and the character of the conspiracy which they are alleged to establish (R. v. Kempley 44 SR(NSW) 416 per Jordan CJ at p.426).

Accused persons are entitled to and should be furnished with the precise particulars of the overt acts relied upon by the Crown to establish the conspiracy charged so that there may be clearly defined issues before the court and the jury (R. v. Partridge (1930) 30 SR 410 approved by the High Court in The King v. Weaver 45 CLR 321 at 333).

A count in conspiracy must comply with the general rule of charging one offence only (R. v. Molloy (1921) 2 KB 364; R. v. Disney (1933) 2 KB 138.) Where a count in conspiracy charges, as it should, only one conspiracy to effect some one or more improper purposes, the only issue before the jury under that count is whether all or any of the accused are guilty of the conspiracy alleged. The jury may find that all or any two or more of the accused are guilty of the conspiracy to effect all the improper purposes alleged, or to effect some only of the improper purposes alleged, but they cannot find some of the accused guilty of a conspiracy to effect only some of the improper purposes and other of the accused guilty only of a conspiracy to effect only other of the improper purposes; because to do so would be to find the existence of two conspiracies under a count which charges one only and this the law does not allow (R. v. Ongley 57 WN 116 per Jordan CJ.)

In my view the trial judge failed to identify correctly the object of the alleged conspiracy and to direct the jury accordingly. He informed the jury that the object was either to have in possession or to assist someone to have in possession. It may well be that the overt acts of providing transport to the site, tilling the soil and installing an irrigation system served to assist in someone having possession of the crop to be sown, cultivated and ultimately harvested. But the object of the conspiracy, the matter agreed upon, was the offence against s.4(3), not the acts preparatory or in furtherance of that object One must be careful to distinguish the ends and the means. I have had the advantage of reading in draft form the judgment of Jenkinson J. and agree with what he has said about the trial judge's summing up to the jury in this respect and, in particular, that the direction to the jury concerning aiding and abetting was likely to induce confusion as to what they must determine in order to reach a verdict.

It is unnecessary to deal further with the arguments on the hearing except to say that with regard to the fourth submission set out above I reject the Crown's argument and agree with the expression of opinion by Jenkinson J. that the terms of the summing up were such that a jury might be led to suppose that if an accused who helped to prepare ground for a crop of cannabis plants believed that the expected crop will come into the possession of some other person, who will have possession of it for the purpose of supply, the accused is guilty of the conspiracy charged. Such a direction is likely to have misled the jury about what were the constituent elements of the offence charged.

For these reasons I concurred in the orders made on 2 December 1983. It is not an appropriate matter in which to order a new trial.

JUDGE3

Appeals by six persons against conviction in the Supreme Court of the Australian Capital Territory on a single count of conspiracy and appeals by the Crown against sentences imposed in respect of those convictions.

The indictment was in these terms:

"MICHAEL HENRY PEEDON, a person authorised to prosecute for Her Majesty in this behalf on the 5th day of April 1983 INFORMS THE COURT AND CHARGES that between the 1st day of January 1980 and the 30th day of October 1980 in the Australian Capital Territory STEFANO PELLE, DOMENICO CONDEMI, ANTONIO GIORGI, DOMENICO NIRTA, FILIPPO PIZZATA and GIOVANNI MAMOLITI did conspire together and with another person or other persons unknown to have in possession, for the purpose of supplying the same to another person or to other persons, a controlled substance, to wit, cannabis."

Section 4(3) of the Poisons and Narcotic Drugs Ordinance 1978 of the Australian Capital Territory provided, at relevant times, as follows:

"A person who has a controlled substance in his possession for the purpose of supplying the substance to another person or to other persons is guilty of an offence."

Cannabis was at relevant times a "controlled substance" within the meaning of that section. Section 86(1) (a) of the Crimes Act 1914 of the Commonwealth provides:

"86. (1) A person who conspires with another person -

(a) to commit an offence against a law of the Commonwealth; . . . . . . . . . . . . . . . . . . . . shall be guilty of an indictable offence."

It is further provided, by s.86(3), that in that section "law of the Commonwealth" includes a law of a Territory.

The trial by jury on the indictment was conducted on the basis that the offence charged was that which s.86(1)(a) of the Crimes Act 1914 created.

It was submitted that a conspiracy to commit an offence of which no act is a constituent element is unknown to the law and that, since no act is a constituent element of the offence which s.4(3) of the Ordinance creates, the indictment disclosed no offence. Support for the major premise of this submission was said to be found in R. v. Grant (1975) 2 N.Z.L.R. 165, in R. v. Heath (1810) Russ. & Ry. 184; 168 E.R. 750 and in Dugdale v. The Queen (1853) 1 EL. & B1. 435; 47 E.R. 499. In each of the latter two cases the opinion which determined that a count alleging possession of certain chattels with a particular intention disclosed no offence known to the common law was succinctly expressed by Coleridge J. in Dugdale's Case (47 E.R. at 500): "The law will not take notice of an intent without an act. Possession is no such act."

Legislative creation of offences defined without reference to an act may require that the common law of conspiracy be accommodated to what Parliament has introduced into the criminal law. In this particular case Parliament itself may have created the offence of conspiracy to commit an offence against s.4(3) of the Ordinance. I shall assume, but without deciding, that the offence charged is an offence created by Parliament.

I shall also assume, but without deciding, that the offence specified in s.86(1)(a) of the Crimes Act 1914 comprehends an agreement that an offence against a law of the Commonwealth shall be committed in such circumstances that the principal offender or offenders shall be a person or persons not party to the agreement. But, as will appear, the charge submitted to the jury for verdict was in my opinion of a conspiracy that the offence against s.4(3) of the Ordinance should be committed in such circumstances that the principal offender or offenders would be party to the conspiracy.

The evidence disclosed that the accused men had over a period been concerned in clearing a plot of ground in a remote area as if to use the plot for cultivation and that, when the police inspected the plot in the presence of some of the accused, what was to be observed suggested that a number of cannabis seeds found there would be planted in the ground so that the seeds might produce cannabis plants. It was the plants which might grow, not the seeds found, to which the indictment referred by the word "cannabis".

A conspiracy to commit an offence is, in my opinion, not commited unless there is an agreement that acts shall be done by a person who, or by several persons each of whom, is party to that agreement, which acts would if done be capable of causing (either of themselves or in combination with other acts or events envisaged by the parties to the agreement) the commission of that offence : D.P.P. v. Nock (1978) A.C. 979. tHE OFFENCE SPECIFIED in s.4(3) of the Ordinance requires for its commission that a person be in a particular relationship to a controlled substance, in this case in such a relationship to a cannabis plant which should come into existence on a particular plot of ground which was the subject of the evidence. Unless that relationship were to come to be, no such an offence would be committed. The terms of the indictment suggest, and the learned trial judge's charge to the jury includes directions, that a constituent element of the conspiracy charged was that the person with respect to whose possession of cannabis the conspiracy was alleged was a party to the conspiracy, whether or not an accused. Although there are passages in the charge which might be thought to induce a doubt on the subject, in my opinion the charge does, on a consideration of the whole of it and of a typed memorandum furnished to the jury as an aide-memoire of relevant legal directions to them, state as an element of the conspiracy charged that the contemplated possessor was one or other or, if the offence against s.4(3) were to be committed by several as joint possessors, several of the conspirators. And that is consistent with the natural, grammatical meaning of the sentence which constitutes the indictment.

The evidence was in my opinion such that the jury might, upon a proper direction, reasonably have failed of satisfaction beyond reasonable doubt that the conspiracy they had found was for possession by one or more of the conspirators, rather than for possession by a person not a party to the conspiracy. It was in my opinion an hypothesis consistent with the evidence that the conspiracy was that after the seeds found on the land had been planted and before any plant had sprouted the conspirators would yield, no doubt for valuable consideration, possession of the land and of any vegetation which might grow on it to a person who had not been party to the conspiracy. It was also in my opinion an hypothesis consistent with the evidence that the conspiracy was that it be determined by the conspirators after the seeds were planted whether possession of the expected plants be had by a party or parties to the conspiracy or by another or others. If those opinions be correct - as to the hypotheses with which the evidence was consistent and as to the possibility that the jury might reasonably fail of satisfaction beyond reasonable doubt on the question I have indicated - then the law required, in my opinion, that the jury have their attention directed specifically to the question and that they be directed that, failing satisfaction on that question beyond reasonable doubt, they must acquit the accused on the ground that the conspiracy alleged had not been proved.

When regard is had to the requirement, as I believe it to be, that for conspiracy to commit a crime there must be agreement for the doing by the conspirators of acts which would if done be capable of causing the commission of the crime, it can be seen that it is not an immaterial allegation that the possessor agreed upon was one of the conspirators. The acts for which agreement is required if the conspiracy charged is to be proved must be determined upon the hypothesis that the allegation concerning the identity or other description of the possessor is proved, not of course to see whether the evidence shows that the acts were done, but to see whether the evidence shows that agreement upon the doing of those acts had been reached. If in this case the agreement had been for possession by a stranger to the conspiracy, some of the acts for which agreement was required would have been different from those required if the agreement were for possession by a party to the agreement. There was no reference in the charge to the matters as to which direction was in my opinion required. There are references in the charge to legal doctrine concerning accessorial complicity in the commission of the offence specified in s.4(3) of the Ordinance. These doctrines, which were introduced in particulars of the indictment furnished by the Crown, had in my opinion no relevance to any aspect of the trial. The statements by the learned trial judge which derived from those doctrines were in my opinion likely to have prevented the jury from comprehending what it was that they had to decide. A charge of conspiracy to commit a crime requires for its consideration attention to the acts and events and, in a case such as this was, the relationships without which the crime will not occur. Accessorial acts may also happen, in a particular case, as did happen in this case, to be acts without the occurrence of which the crime contemplated by the conspiracy alleged will not occur. But the circumstance that such acts will involve the actor in criminal responsibility as an accessory or, according to accepted doctrine relating to offences other than felonies, as a principal in the commission of the crime, if in the result the crime is commited, is irrelevant, in my opinion, to a charge of conspiracy to commit the crime.

After reading the indictment, the learned trial judge directed the jury in these terms:

"For the purpose of the indictment, conspiracy is an agreement to do an unlawful act. Agreement is essential. To have in possession for purposes of supply to another person or persons, the controlled substance, cannabis - and I direct you as a matter of law that cannabis is a controlled substance - is a criminal offence forbidden by the Poisons and Narcotic Drugs Ordinance 1978 of this territory, and is therefore unlawful. So if two or more of the accused did agree together to have possession of the cannabis for the purpose of supplying it to another or others, a conspiracy would have been proved, or - and I think I ought to put it this way, too - if one or more of the accused did agree with somebody else unknown to have possession of cannabis for the purposes of supplying it to another or others, a conspiracy would have been proved. The agreement founding the charge of conspiracy may not possess all the formalities of an ordinary contract, but there must be at least a conscious understanding of a common design by each of the alleged conspirators of the agreement said to be the conspiracy. The law does not require that the agreement be a formal one or be in writing or that the persons concerned hold a meeting and expressly state the terms of the common undertaking. It does not require that the agreement be stated in words between them, as men usually express a lawful business agreement. The agreement necessary to the conspiracy may come into being through a tacit, mutual understanding; an understanding not expressed in words, and the wilful intentional and knowing adoption by two or more persons of the unlawful common design. The necessary criminal state of mind is the intention or agreement to execute the illegal elements in the conduct contemplated by the agreement in the knowledge of those facts which render the conduct illegal. It is not necessary that a conspirator should actually know that the contemplated contract amounts to a crime. It is enough if his agreement is that each one of the acts which go to make up the elements of the crime agreed to be committed is to be performed. I will return to this question of the mental element which it is necessary that a conspirator should have before I complete my summing-up. It frequently happens that conspiracy cannot be proved by direct evidence, and then it is a matter of inference to be deduced from the acts of the accused whether those acts were done in pursuance of a criminal purpose intended in common between them, and notwithstanding that all are not acting in the one place, or even that they have never met. The inference may be drawn from the acts of the accused. Conspiracy against all or some persons charged may be proved or inferred from their knowledge of a criminal purpose and by their general co-operation in advancing its object, even through they were in different places, or become parties to the agreement at different times. It follows from the fact that agreement is the essence of conspiracy that an accused cannot be found guilty, although active to the same end being pursued by others in accordance with the conspiracy, unless you are satisfied that he was acting to achieve that end in pursuance of the same design. I will repeat that. It follows from the fact that agreement is the essence of conspiracy that an accused cannot be found guilty, although active to the same end being pursued by others in accordance with the conspiracy, unless you are satisfied that he was acting to achieve that end in pursuance of the same design. To take the present case, it has been put to you that a number of the accused were, as it were, hired hands. The evidence in that regard may have raised, and it is entirely a matter for you, I make no suggestion one way or the other, doubt in your mind as to whether the accused in question, although doing acts which contributed to a basic, unlawful purpose, were acting in pursuance of a common design to effect that purpose. Unless you are satisfied beyond reasonable doubt that those accused were acting to that end in pursuance of a common design because they had made the appropriate agreement which the Crown alleges, you cannot convict them. If any of the accused intended to engage in actions which conduced to the unlawful purpose alleged, from motives operating on his own mind alone, and not in pursuance of any plan arranged between him and one or other of the accused, or the other person or persons unknown, he could not be found guilty." . . . . . . . . . . . . . . . . . . . . . . . "It is from the activities of the accused that I have outlined that the Crown asks you, or will ask you at the end, to infer that there was a conspiracy an agreement to have in possession to possess the cannabis which would have been grown on the site from the seeds and for the purpose of supply. It is no part of the Crown case here to allege that these particular accused were going to be the owners or the possessors of the crop itself. 'There will be no evidence directed to showing that it was going to be them rather than someone else who would be the ultimate owner, and I use the term very loosely,' said the Crown prosecutor, 'of the crop.' The Crown case is that they, in preparing the ground for the planting of the crop, were assisting someone who may have been the accused, assisting in the establishment of the crop which was going to be possessed and supplied. Bearing in mind what I have just said, I direct you in this way. Take the case of a man who decides to grow cannabis for the purpose of supplying it to others. Suppose too that he decides to grow that cannabis in a place such as the cleared area which you may conclude was a remote place on Crown land. Suppose then that he was an organizer, one who did not normally risk blistering his hands by doing the hard work of cultivating the land upon which he proposed to grow the cannabis. He might then be expected to look about him to see whether he could get men who would do the basic hard work of clearing the land, preparing it for the reception of seed, the cultivation of the crop to the point where it might be harvested, and the harvesting. So that you may consider whether such a man had the intention of possessing a crop of cannabis for the purpose of supply to another or others, it is necessary that I tell you something about the legal meaning of the word, possession."

After giving directions concerning possession His Honour continued in his charge:

"Before lunch, ladies and gentlemen, I had said, and I repeat the passage, there may be possession of a standing crop of cannabis if you are satisfied that there was the necessary intention to possess and the power to exercise the necessary control to the practical exclusion of strangers. It is clear that once the crop is harvested there is a more easily provable possession because the thing which is capable of being moved is more readily controlled by the person intending to have possession of it and capable of exercising exclusive control of it. To return to the man I call the organizer. Assuming you find that it was planned by at least the organizer that cannabis should be grown on the cleared area, you may find that he planned to have possession of that cannabis while it was still growing before harvest provided you are satisfied that he intended to possess the crop and to exercise that control over it of which it was practically capable and which was sufficient for practical purposes to exclude strangers from interfering. This will depend upon your assessment of the inaccessibility, remoteness and secrecy of the cleared area and of the operation. If upon consideration of those three things you are not satisfied that the organizer or others planning with him the cultivation of the crop of cannabis had control sufficient for practical purposes to enable him to exlude strangers from interfering, you could not be satisfied as a matter of law that the organizer and those planning with him intended to have possession of the crop before harvest. It is a matter of degree. Clearly, a man who plants cannabis seed in a public garden hoping that its presence will escape the notice of gardeners can hardly have control sufficient for practical purposes to exclude gardeners and others from taking possession of the growing plant at any stage. On the other hand, he may just have that appropriate amount of control if he plants cannabis seeds in a relatively remote, uncultivated and untended part of a large city park. Sometimes in a conspiracy case the principal organizer or organizers is likened to the hub of the whole plan. The evidence here does not seem to be strong enough, indeed, the Crown does not say it is, to say that any one of the six accused was the hub of the whole thing. That is not the way the Crown puts its case. As a matter of law I tell you that all you need to be satisfied of is that there was a man, whether one of the accused or not, who intended to possess cannabis for the purpose of supply to another or others and if any of the accused knowingly agreed, directly or indirectly with him, to advance that plan by any means, that accused is to be considered as having conspired to possess himself, cannabis for the purpose of supply to another or others. Perhaps I had better repeat that. All you need to be satisfied of is that there was a man, whether one of the accused or not, who intended to possess cannabis for the purpose of supply to another or others, and if any of the accused knowingly agreed directly or indirectly with him to advance that plan by any means, that accused is to be considered as having conspired to possess himself cannabis for the purpose of supply to another or others. I tell you that as a matter of law, any man who assists - lawyers usually use the words, aids and abets - another to possess cannabis for the purpose of supply to another or others, is to be held equally guilty with the person he assists and is to be considered as himself possessing cannabis for the purpose of supply to another or others. At this point, it is appropriate to mention something which Mr. Buchanan put to you last Friday. He said, and quite correctly, that the simple cultivation of cannabis in the Australian Capital Territory is not an offence, but mere possession of cannabis is. You may think, it is a matter for you that, having regard to the definition of possession which I have given you, that often cultivation of cannabis will involve possession. Each individual case has to be considered, of course, on its facts, but you may well think of what I have said just now is the case. So far, although I have given you a good deal of instruction on the question of possession, I have been concerned to help you with the definition of the word, 'conspiracy' as that word is to be understood in connection with the present indictment. What I have said, however, is, I think, sufficient to show you what is meant by the words in the indictment, 'to have in possession'. That, as appears from the indictment, is one of the elements, or as Mr. Palmer put it, one of the building blocks of the charge against the accused. The conspiracy must have had as its initial object that somebody would have possession of the controlled substance. You have to be satisfied that the agreement was that somebody should have possession of the controlled substance in the sense which I have outlined. The possession may be of the crop when standing if you are satisfied that the necessary control was capable of being exerted having regard to remoteness, inaccessability and secrecy. On the other hand, you may think that the possession in question was the possession which some person or persons would have after the planned crop was actually harvested. So if you find an agreement or conspiracy in the way I have put to you as the only way in which you can, you have to find first the agreement that another person or persons inknown - it may have been one or more of the accused - should have possession of the cannabis".

The paragraph in the foregoing passage which includes the words "aids and abets" may be assumed for present purposes to be a correct statement of law concerning accessorial complicity in crimes other than felonies. But it was a statement irrelevant in my opinion to any function the jury was required to perform. The agreement charged, and the agreement to be proved, was that the offence created by s.4(3) of the Ordinance should be committed. Only if somebody possessed cannabis in fact could such an offence be committed. To say that if, in the event that the offence should be committed, an act which the evidence showed an accused had agreed to do in pursuance of an agreement he had made, or which the evidence showed he did in fact do in pursuance of an agreement he had made, will make him also quilty of the offence is, as I think, to impart information about the law which in no way assists the jury to determine whether the agreement charged has been proved or whether that accused was party to the agreement charged. The conspiracy charged was not that each conspirator - or that each of several of the conspirators - would perform an act (other than his joining in the conspiracy) which would, if the offence against s.4(3) of the Ordinance should be committed, render him guilty of that offence. If the evidence showed that each of the accused had performed such an act, the evidence was admitted not to prove that the agreement was that he should do so, but to prove that he had made himself party to the agreement charged. The direction to the jury concerning aiding and abetting was likely, in my opinion to induce confusion as to what they must determine in order to reach a verdict.

The statement was not an isolated observation during the course of a charge which extended over several days. The next day His Honour said:

"Again, I said to you: I tell you that as a matter of law any man who assists - lawyers usually use the word aids and abets - another to possess cannabis for the purpose of supply to another or others is to be held equally guilty with the person he assists and is to be considered as himself possessing cannabis for the purpose of supply to another or others. What I should tell you about that is this: I tell you that as a matter of law any man who knowingly assists - the 'knowingly' is important - lawyers usually use the word aids and abets - another to possess cannabis for the purpose of supply to another or others is to be held equally guilty with the person he assists and is deemed to possess the cannabis for the purpose of supply to another or others himself. He does not actually possess it, of course he cannot, but he is deemed to possess it."

Again, I need not question the correctness of this description of accessorial complicity. But in my opinion the statement I have just quoted was likely to confuse the jury. They might, on hearing that statement, suppose that if an accused who helps to prepare ground for a crop of cannabis plants believes that the expected crop will come into the possession of some other person who will have possession of it for the purpose of supply, the accused is guilty of the conspiracy charged, without more.

The aide-memoire given to the jury was in these terms:

"Before any accused can be convicted, the Crown must prove beyond reasonable doubt in relation to that accused each and every one of the following elements of the charge in the indictment:-

(i) That between 1 January 1980 and 30 October 1980

(ii) There was a conspiracy, i.e. an agreement, to do the following unlawful act, namely,

(iii) (a) to have in possession OR assist the having in possession by a conspirator of

(b) a controlled substance, (a crop of) cannabis

(c) for the purpose of supplying that cannabis to another person or persons

(iv) That the accused was a party to that conspircy.

Elaboration of Certain Elements:

A.Element (ii) - Conspiracy

(a) Conspiracy is an agreement to do an unlawful act.

(b) There must be at lease a conscious agreed understanding of a common design.

(c) The agreement necessary may come into being through a tacit mutual understanding, not expressed in words, and the wilful intentional and knowing adoption by two or more persons of the unlawful common design.

(d) The necessary criminal state of mind is the agreement to execute the illegal elements in the conduct contemplated by the agreement in the knowledge of those facts which render the conduct illegal. It is not necessary that a conspirator should actually know that the contemplated agreement amounts to a crime.

(e) Conspiracy may be proved or inferred from proven' or inferred knowledge of the criminal purpose and by proven or inferred general co-operation in advancing its object.

(f) An accused cannot be found guilty, although active to the same end being pursued by others, unless you are satisfied that he was acting to achieve that end in pursuance of the same design.

(g) You may find five of the accused not guilty but be satisfied that the sixth conspired with a person or persons unknown.

(h) If one of the accused or another conspirator intended to possess cannabis for the purpose of supply to another and an accused knowingly agreed directly or indirectly with him to advance that plan by any means, then that accused is to be considered as having conspired to possess cannabis for the purpose of supply to another or others.

B.Element (iii) - The Specific Unlawful Act

(a) Possession - ownership and possession are two different things. For a person to have possession at law he must have the intention to possess together with that amount of control of the entire subject matter of which it is practically capable and which is sufficient for practical purposes to exclude strangers from interfering.

(b) Supply - supply involves some form of distribution. It may be distribution by sale in bulk or small lots. It may be distribution by gift.

(c) The Crop - you must be satisfied beyond reasonable doubt that the agreement was to grow a crop of cannabis to be possessed for the purpose of supply.

C.Reasonable Hypothesis

If you find a reasonable hypothesis exists consistent with the innocence of an accused you must acquit that accused. For you must be satisfied beyond reasonable doubt that the circumstances are such that they cannot be explained by a reasonable hypothesis consistent with innocence. It is not for the accused to prove the truth of such an hypothesis nor even to suggest it. A reasonable hypothesis may occur to you even though it has not been put to you by counsel or by me. It may be present together with an hypothesis of guilt. If it is, you acquit. Accordingly, if the evidence as to the involvement of any individual accused does not satisfy you beyond reasonable doubt that any reasonable hypothesis consistent with innocence has been excluded then you must acquit that accused.

D.Finding of Guilt

The tests you should apply to the facts as you find them are twofold:-

1. Are you satisfied beyond reasonable doubt that there was a conspiracy such as that charged? If so,

2. Are you satisfied beyond reasonable doubt that the particular accused under consideration was party to the conspiracy charged? In other words, even though you may find there existed a conspiracy such as that charged, there may still be for any particular accused a reasonable explanation consistent with the innocence of that accused."

Clause (iii) (a) and clause A (h) of the aide-memoire could not in my opinion be expected to dispel the confusion which the oral statements in the charge were likely to have caused.

For the foregoing reasons I am of opinion, first, that the jury were not directed to consider, as the evidence required that they consider, whether they were satisfied beyond reasonable doubt of the existence of a particular constituent element of the offence charged; second, that it cannot be concluded that the jury were, or that upon a proper direction they must have been, so satisfied; and, third, that the charge included directions likely to have misled the jury as to what were the constituent elements of the offence charged. Accordingly the verdicts must in my opinion be set aside. In all the circumstances I do not consider that a new trial should be ordered. For those reasons I concurred in the orders made on 2 December 1983. I would have made a further order, that verdicts of not guilty be entered.