R v B

Case [2008] NSWCCA 85 21 April 2008

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Reported Decision: 76 NSWLR 533

New South Wales

Court of Criminal Appeal

CITATION: B v R [2008] NSWCCA 85

HEARING DATE(S): 10/4/08

JUDGMENT DATE:
21 April 2008

JUDGMENT OF: Spigelman CJ at 1; James J at 109; Howie J at 110

DECISION: 1 Stand over Order 3 sought in the Notices of Application for Leave to Appeal of Khaled Cheikho dated 3 April 2008, of Mirsad Mulahalilovic dated 4 April 2008 and of Mazen Touma dated 7 April 2008.
2 Otherwise refuse leave to appeal on each Application.

CATCHWORDS: CRIMINAL LAW – Practice and procedure – Indictments – Conspiracy – Patent duplicity – Latent duplicity – Criminal Code Act 1995 (Cth), s 11.5 - CRIMINAL LAW – Practice and procedure – Indictments – Consent to commence proceedings – Time of commencement of proceedings – Criminal Code Act 1995 (Cth), s 11.5(8) - CRIMINAL LAW – Practice and procedure – Indictments – Conspiracy – Whether a conspiracy to commit a preparatory act is unknown to law – Criminal Code Act 1995 (Cth), s 101.6.

LEGISLATION CITED: Acts Interpretation Act 1901 (Cth)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code Act 1899 (Qld)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986
Judiciary Act 1903 (Cth)

CASES CITED: Ansari v The Queen [2007] NSWCCA 204; (2007) 173 A Crim R 112
Bank of England v Vagliano Brothers [1891] AC 107
Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651
Commissioner of Taxation v Cocaj [2004] QCA 69; [2004] 2 Qd R 488
Coward v Allan (1984) 52 ALR 320
CSR Ltd v Environment Protection Authority [2000] NSWCCA 373; (2000) 110 LGERA 334
Director of Public Prosecutions v Merriman [1973] AC 584
Director of Public Prosecutions v Stark [2006] VSCA 61
Gerakiteys v The Queen (1984) 153 CLR 317
Johnson v Miller (1937) 59 CLR 467
Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 193 CLR 355
R v ARD [2000] NSWCCA 443
R v Armstrong [1996] 1 Qd R 316
R v Barlow [1997] HCA 18; (1997) 188 CLR 1
R v Butler (1991) 24 NSWLR 66
R v Carusi (1989) 17 NSWLR 516
R v CDR (No 2) [1996] 1 Qd R 69
R v Challita (1988) 37 A Crim R 175
R v Chow (1987) 11 NSWLR 561
R v Deng (1996) 91 A Crim R 80
R v Evans [1964] VR 717
R v F (1996) 90 A Crim R 356
R v Ferguson (No 11) [2005] VSC 527; (2005) 165 A Crim R 337
R v Giam [1999] NSWCCA 53; (1999) 104 A Crim R 416
R v Hamzy (1994) 74 A Crim R 341
R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
R v Lao and Nguyen [2002] VSCA 157; (2002) 5 VR 129
R v Lodhi [2005] NSWSC 1377; (2005) 199 FLR 236
R v Mitchell [1971] VR 46

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v B

Details

AGLC: B v The Queen [2008] NSWCCA 85
Case: [2008] NSWCCA 85
Decision Date: 21 April 2008

CaseChat Overview and Summary

In the case of R v B, the appellant faced charges related to a conspiracy to commit a crime. The nature of the dispute was whether the indictment sufficiently detailed the alleged conspiracy to satisfy legal requirements under the Criminal Code Act 1995 (Cth). The case was heard in the relevant Australian court, which had to determine the sufficiency of the indictment concerning both the elements of the offence and the procedural requirements for commencing the prosecution.

The court was required to address several legal issues, primarily focusing on the adequacy of the indictment. The questions included whether the indictment was patently or latently duplicitous, as defined by section 11.5 of the Criminal Code Act. Additionally, the court had to consider whether the prosecution had the consent of the Attorney-General to commence proceedings, as mandated by section 11.5(8) of the Act. Furthermore, the court had to determine whether a conspiracy to commit a preparatory act constituted an offence under section 101.6 of the Criminal Code Act.

In its reasoning, the court examined the indictment closely to ensure it met the statutory requirements. The court found that the indictment was not patently duplicitous, as it did not contain multiple charges in a single count in a manner that could cause confusion or prejudice to the accused. Regarding latent duplicity, the court held that while the indictment could have been drafted more clearly, it did not prejudice the accused to a degree that warranted setting it aside. The court also considered the procedural requirement of the Attorney-General's consent and found that it had been appropriately obtained. Finally, the court concluded that a conspiracy to commit a preparatory act did fall within the scope of the Criminal Code Act, and therefore the conspiracy charge was valid.

Ultimately, the court dismissed the appeal, upholding the indictment and allowing the prosecution to proceed. The appellant's challenge to the indictment was found to be without merit, and the charges against the appellant were allowed to continue.

Orders