R v Cagla Kucukeren

[2008] NSWDC 254

CITATION:	R v Cagla Kucukeren [2008] NSWDC 254
JUDGMENT DATE:	31 July 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Applications refused. (On 7 October 2008 a jury of 12 found Ms Kucukeren not guilty of both offences.)
CATCHWORDS:	CONSPIRACY - Aid and abet - Robbery - Common law offences - Are the offences known to law? - Does the evidence support the charge? - Application for a permanent stay
LEGISLATION CITED:	Accessories and Abettors Act 1861 (UK) Crimes Act 1900 Crimes Act 1914 (Cth) Criminal Law Act 1977 (UK) Migration Act 1958 (CTH)
CASES CITED:	Director of Public Prosecutions v Withers [1975] AC 842 Gerakiteys v The Queen (1984) 153 CLR 317 Mulcahy v The Queen (1868) LR 3 HL 306 Nitra v The Queen (1983) 51 ALR 53 Osland v The Queen (1998) 197 CLR 316 Peters v The Queen (1998) 192 CLR 493 Pokoon-Tai v The Queen (1980) HKLR 492 Regina v Cahill (1978) 2 NSWLR 453 Regina v Ongley (1940) 57 WN (NSW) 116 Regina v Skewes (1981) 7 A Crim R 276 Regina v Smith (1995) 1 VR 10 R v Hollingshead [1985] 1 All ER 850 R v Walton & Gardiner (1993) 177 CLR 378 The King v Boston (1923) 33 CLR 386
TEXTS CITED:	Simon Bronitt and Bernadette McSherry, Principles of Criminal Law, 2nd ed. (2005) Thomson Lawbook Peter Gilles, Criminal Law, 4th ed. (1997) Law Book Company Howie and Johnson, Criminal Practice and Procedure in New South Wales, (1998 -) Butterworths
PARTIES:	Regina Cagla Kuckeren
FILE NUMBER(S):	2007/12/0319
COUNSEL:	Mr J Pickering (Respondent)
SOLICITORS:	Mr R J Leary (Applicant)

JUDGMENT
1. Cagla Kucukeren has been charged with two offences. The first is that she conspired with Lee Macarthur to commit the offence of robbery. The conspiracy is alleged to have occurred between 11 August and 25 August 2007. The second charge is that she conspired with the same person between the same dates to “incite, move, procure, aid, counsel, hire and command persons unknown to commit a serious indictable offence, namely robbery.”

2. She has filed a notice of motion. In it she applies for an order that the first charge be permanently stayed. She also applies for an order that the second charge be quashed or permanently stayed. These applications raise two issues. The first is whether the second charge in the indictment is an offence known to the law in New South Wales. The second is whether there is any evidence capable of establishing that there was an agreement, as alleged, or that she had an intention to carry out such an agreement.

3. There is only one item of evidence in this application. That is an affidavit sworn by Leon Apostle on 29 May 2008. That person is a solicitor employed by the Legal Aid Commission which acts for the applicant, Cagla Kucukeren. The affidavit annexes copies of the indictment, a summary of the facts, a transcript of the police interview with Cagla Kucukeren, transcripts of telephone intercepts and correspondence exchanged between the solicitor for Ms Cagla Kucukeren and the solicitor for the respondent who is the Director of Public Prosecutions.

4. The prosecution case is, as conveniently summarised by Mr Leary who appears for Ms Kucukeren, “that she provided one Lee Macarthur with information about the service times of an ATM at Westfield, Parramatta, in exchange for a promise of $5,000.”

5. I propose to deal first with the issue of whether the offence charged in the second count is an offence known to the law in New South Wales. Professor Peter Gillies, relevantly to this case, says in the text Criminal Law (4th ed (1997) Law Book Company) at 723:

“…[T]he reported cases of conspiracy in New South Wales… are almost universally confined to conspiracy to commit a crime (including conspiracy to pervert the course of justice, which is an agreement for the substantive crime of attempting to pervert justice), and conspiracy to defraud (a well settled held of common law conspiracy). The prosecuting authorities have not sought to test the ambit of the crime by charging more exotic heads.”

At the following page Professor Gillies said:

“It is unlikely, given the conservative approach of the prosecuting authorities in these jurisdictions, that the issue of whether the Australian common law knows heads of conspiracy beyond those of agreements to commit a crime and to defraud will very often arise.”


6. The charge contained in the second count in this indictment charges neither an agreement to commit a crime nor an agreement to defraud. It charges an alleged offence of aiding and abetting other persons to commit a crime. As I said, Mr Leary argues that the offence alleged by the prosecution is not one known to law. The issue for me, therefore, is whether count two in the indictment charges an offence known to the law in New South Wales.

7. Mr Pickering who appears for the Director of Public Prosecutions submits that the offence charged in count two is an offence known to the law and he argues that it “has been recognised as an offence known to law in Australian Courts, and in recognised criminal law text books, and criminal law practice services.”

8. What McHugh J described in Peters v The Queen (1998) 192 CLR 493 as a “celebrated description” of the crime of conspiracy, is the one used by Willes J in Mulcahy v The Queen (1868) LR 3 HL 306 at 317 as being an “agreement of two or more to do an unlawful act or to do a lawful act by unlawful means”. The proposition advanced by Mr Pickering is that a criminal conspiracy may still be defined in this State in the terms of that classic definition.

9. In developing his argument Mr Pickering first refers me to the text book authors. One is the second edition of a text called Principles of Criminal Law by Professor Simon Bronitt and Professor Bernadette McSherry. The learned authors at 424 say that

“Historically at common law, the definition of ‘unlawful act’ has been broadly interpreted to include not only crimes, but also agreements to defraud, to commit a tort with intent to cause injury, to corrupt public morals, to commit a public mischief and pervert the course of justice.”

But the authors go on to say that “in practice, conspiracy to defraud, conspiracy to commit crimes and conspiracy to pervert the course of justice are the usual forms of conspiracy charged in Australia.”

10. In Professor Gillies’ work which I have already referred to, the author refers at 725 to a Victorian case which, the learned author says, recognises “the validity of a charge of conspiracy to aid, abet, counsel or procure a crime, viz, a charge of conspiring to be an accessory to a substantive crime.” I will return to that case later in this judgment.

11. Mr Pickering’s reference to the practice services is a reference to Criminal Practice and Procedure in New South Wales by Justice R N Howie and Justice P A Johnson. At para (6) - 200, the learned authors say that it is “possible to commit a conspiracy to aid and abet the commission of a crime”. The authors support that proposition by reference to the same Victorian case as Professor Gillies referred to and to which I will return.

12. The authorities which Mr Pickering says support the proposition that the offence exists in New South Wales are: Gerakiteys v The Queen (1984) 153 CLR 317, Nirta v The Queen (1983) 51 ALR 53, Regina v Skewes (1981) 7 A Crim R 276 and Pokoon-Tai v The Queen (1980) HKLR 492. The judgment in Skewes is the judgment of the Victorian Court of Criminal appeal to which Professor Gillies and Howie and Johnson JJ refer. Mr Pickering acknowledges that none of these cases provides binding authority for the proposition that the offence of conspiracy to aid and abet the commission of a crime is an offence known to the law in New South Wales but he argues that they provide some judicial support for the proposition. I will refer to the extent of that support when discussing the authorities.

13. Mr Leary argues that as the common law has developed in England
- and arguably in New South Wales - the concept of an “unlawful act” in the classical definition of criminal conspiracy is now limited by the emergence of certain recognised categories or “heads” of criminal conspiracy. His argument is close to the passage from the judgment of McHugh J in Peters v The Queen at 515 ([53]) where his Honour said that

“The House of Lords made it clear that, although there is only one offence of conspiracy which for convenience is categorised into separate heads, the courts cannot develop the law of conspiracy by adding new heads to those already recognised by the law. It is for parliament to expand the offence by statute, if it so desires”.


Mr Leary argues that a conspiracy to aid and abet the commission of an offence is not a head of conspiracy recognised by the law. Nor, he argues, does an agreement to do an unlawful act of the kind relied upon in this case by the prosecution amount to a head of conspiracy recognised by the law. In my opinion none of the recognised heads of criminal conspiracy applies to this case.

14. Mr Leary says that the authorities relied upon by the prosecution need to be read in light of this common law development. The principal cases which he relies upon are the House of Lords decision in Director of Public Prosecutions v Withers [1975] AC 842 and Regina v Cahill (1978) 2 NSWLR 453.

15. I will now briefly discuss two of the authorities, namely Skewes and Pokoon-Tai . Mr Pickering points to Skewes as one source of authority for the proposition which he advances. It is an example of a case where a conspiracy to aid and abet is recognised by a court. The judgment was delivered by the Victorian Court of Criminal Appeal. The charge was that the accused “conspired together to aid, abet, counsel and procure” various persons to contravene the provisions of a particular statute which regulated commercial goods for vehicles. The proceedings had been brought in the Supreme Court of Victoria on a presentment (or indictment). The contraventions alleged were all summary offences. The defendant argued that “the presentment disclosed as no offence upon which the applicants could be tried because...it did not allege an indictable offence but...alleged no more than summary offences....”. The issue which the Court of Criminal Appeal had to determine was whether a conspiracy to commit a summary offence could be prosecuted on indictment. The point made by Mr Pickering is that the court said nothing about the offence of conspiracy to aid and abet the commission of an offence not being known to the law. Mr Leary acknowledges this but correctly points out that the issue before me, whether such an offence is down to the law, was not argued before or considered by the Court of Criminal Appeal in Skewes . Both Mr Pickering and Mr Leary are right in what they say.

16. The Hong Kong Court of Appeal recognised an offence of conspiracy to aid and abet the commission of a crime in Pokoon-Tai . The court rejected the appellant’s argument that what they were charged with was not conspiracy to commit the unlawful act of an offence but one to aid and abet the commission of an offence. To aid and abet an offence is not itself an offence but “simply a mode of committing an offence” as the court said at 499. In that case the offence was committed. It was the illegal landing of refugees. The court referred to the Victorian Court of Criminal Appeal decision in Skewes and to the fact that no similar complaint was made in that case about the indictment.

17. The Hong Kong Court of Appeal regarded the “answer to the point” as lying in the common law definition of conspiracy. The court then said at 504 that “conspiracy is an indictable offence consisting in the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means.” The court concluded that an agreement “need be no more than to do an unlawful act.” The court concluded at 506 that there was an “agreement to do an unlawful act, namely to procure the contravention” of a particular statute and that that agreement was “properly the subject matter of a conspiracy count.” Mr Leary points out that the case is distinguishable because the unlawful act, the illegal landing of refugees, had actually occurred. Once again, the case provides some recognition of the existence of such a crime, but its persuasive force in my opinion is more remote than that of Skewes .

18. I now turn to resolve the argument on whether or not such an offence exists. In my opinion the offence charged by the prosecution in the second count is one known to the law in New South Wales. I am of that opinion for these reasons.

19. There is very respectable authority, although not binding, for the proposition that there is such an offence of conspiracy to aid and abet another to commit an offence. Dean J recognised the existence of such an offence in discussing the charges on the indictment in Gerakiteys . See his Honour’s judgment at 334, 335 and 336. Also in his Honour’s discussion of the arguable number of conspiracies involved in the facts of that case Dean J notes at 332 one which his Honour describes as “a central conspiratorial arrangement...that particular arrangements would be made with...other persons for such other...persons to be placed in a position and furnished with the means to make fraudulent claims”.
In his Honour’s reference to the nature of the conspiracy in that case and, as I said, in his Honour’s later discussion, his Honour clearly recognises the existence of an offence of conspiracy to aid and abet another to commit an offence.

20. In the Full Court of the Federal Court decision in Nirta both Gallop J and Jenkinson J (with whose judgments Fox J agreed “in substance”) make a distinction between a conspiracy to commit an offence and a conspiracy to assist another in committing an offence. The charge in that case was conspiracy to have possession of an illegal drug for the purposes of supply. It was a statutory conspiracy contrary to s 86(1)(a) of the Crimes Act1914 of the Commonwealth, namely a conspiracy to commit an offence against the law of the Commonwealth. The law of the Commonwealth in question was an ACT ordinance proscribing possession of illegal drugs for the purposes of supply.

21. The trial judge in Nirta had summed up to the jury “that the object was either to have in possession or to assist someone to have in possession”(at 62.15). Gallop J said, just following that passage, as follows:

“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 [the ordinance], 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.”
Jenkinson J noted the trial judge’s reference to aiding and abetting and Jenkinson J relevantly said as follows at 69:

“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 [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...showed an accused had agreed to do in pursuance of an agreement...or which...he did in fact do in pursuance of an agreement...will make him also guilty of the offence...to impart information about the law which in no way assists the jury to determine whether the agreement charge 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...[the ordinance] should be committed, render him guilty of that offence.”

22. As I said, in Skewes the Victorian Court of Criminal Appeal acknowledged the existence of an offence of conspiracy to aid and abet another to commit an offence. I acknowledge that the very question before me, does such a conspiracy exist, was not the subject of considered attention by the Court of Criminal Appeal in Skewes . As I said, Pokoon Tai also provides support for the proposition but I regard it as less persuasive than the decisions made in Australian jurisdictions.

23. I regard the Australian authorities to which I have referred as indirect acknowledgement that there exists an offence of conspiracy to aid and abet another to commit an offence. Such an acknowledgment was by way of contrast with the offence charged in those cases, except in the matter of Skewes where it was the subject matter charged. Although indirect, the acknowledgment comes from the Full Court of the Federal Court of Australia so far as Nirta is concerned, and in my opinion, therefore comes with significant persuasive force. The opinion of Dean J also comes with persuasive force.

24. Hence, although I agree there is no binding authority on the question, the existence of such an offence appears to be accepted without question at the appellate level in this country.

25. I should mention a judgment of the Court of Appeal in the United Kingdom called R v Hollinshead [1985] 1All ER 850. Mr Leary points to that judgment as authority for the proposition that the existence of a crime of conspiracy to aid and abet an offence has been rejected in England. In my opinion Hollinshead is distinguishable. The relevant conspiracy in that case was a statutory one. It was a conspiracy contrary to s 1 of the Criminal Law Act 1977 . That section proscribed agreements to pursue a course of conduct “which will necessarily amount to or involve the commission of an offence.” The charge in that case was to “aid, abet, counsel and procure” certain criminal conduct. The Court of Appeal was faced with a question of statutory construction. It resolved this question by comparing the statutory definition of conspiracy with the Accessories and Abettors Act 1861 which provided that a person who aids or abets the commission of an indictable offence “shall be liable to be tried, indicted, and punished as a principal offender.”

26. The Court of Appeal in a judgment delivered by Hodgson J, with whom it appears Stephen Brown LJ and Glidewell LJ agreed, went on to say that the -

“wording is ‘shall be liable to be tried et cetera’ not ‘shall be guilty of an offence’. It has, we think, to be compared with s 1 of the 1977 Act, which requires the course of conduct agreed to amount to or involve the commission of ‘any offence or offences’. In our judgment the plain meaning of the two sections when placed side by side is that a conspiracy to aid, abet, counsel or procure an offence is not itself an offence.”
It appears from that passage that Hodgson J was delivering the judgment of the court. That decision went on appeal to the House of Lords ([1985] A.C. 975). In the speech of Lord Roskil, with whom the majority of the law lords agreed, his Lordship at 998 noted the Court of Appeal’s opinion that the accused could not have been “convicted for the reason that s 1 of the Act of 1977 did not upon its true construction make a charge of conspiracy to aid, abet, counsel or procure possible in law.” His Lordship went on to say that he did “not find it necessary to consider whether or not this view is correct”. His Lordship noted that whether such a count is sustainable at law -

“is obviously one of some difficulty and a case in which that question arose for direct decision is likely to be a rarity. I suggest that in any future case in which that question does arise it should be treated as open for consideration de novo, as much may depend on the particular facts of the case in question.”

27. To acknowledge the existence of such a conspiracy of aiding and abetting another to commit an offence is the first step. The second step is to articulate how such a conspiracy can be described in terms of the role of accessorial liability as a legal concept, and the definition of a criminal conspiracy.

28. Mr Leary points me to s 346 of the Crimes Act1900 which provides that

“Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced...and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender”.

Mr Leary refers to the passages in Osland v The Queen (1998)

197 CLR 316 concerning a relationship between an accessory and the principal offence. At 324 ([14]) Gaudron and Gummow JJ say this, “Even so, an accessory cannot be convicted unless the jury is satisfied that the principal offence was committed.“ McHugh J said at 342 ([71]) that the liability of accessories “was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime.” So Mr Leary argues in a case such as this where the principal offence of robbery was never committed, the actions of an accessory would not become punishable until the completed offence occurs. Mr Leary argues that if the -

“actions of an accessory before the fact cannot be characterised as ‘unlawful’, until such time as a completed offence occurs, it is submitted that an agreement to perform the same actions could not be characterised as ‘one to commit an unlawful act’.”

29. It is here that I need to turn my attention to the argument between the parties over the development of the law of conspiracy and whether, as argued by Mr Leary, the conspiracy in this case does not fall within one of the heads of conspiracy recognised by the law.

30. Although the textbook authors and English case law support the proposition that the courts cannot create new heads of criminal conspiracy, I have not been referred to any Australian authority which embraces this proposition. My own researches - and I am not being critical in this regard - turned up Peters v The Queen and McHugh J’s apparent approval at 515 ([53]) of the proposition that “the courts cannot develop the law of conspiracy by adding new heads to those already recognised by the law.” Professor Gillies at 726 of his work Criminal Law seems to accept that the heads of criminal conspiracy can be expanded. In his argument that

“a conspiracy to be an accessory to a given offence is arguably a distinct head of criminal conspiracy. Insofar as accessorial liability is not a crime in itself, but rather a basis for imposing liability upon a person for another’s crime, so as to render the accessory liable to punishment for this crime as though the accessory has personally committed it, an agreement to be an accessory to a crime is not quite the same as an agreement to commit this crime. Thus, it is not comprehended by the head of conspiracy to admit a crime.”
31. Sir Frederick Jordan in Regina v Ongley (1940) 57 WN (NSW) 116, speaking on behalf of the New South Wales Court of Criminal Appeal, made the following important observation at 117, about the law of criminal conspiracy in New South Wales.

“It is convenient, in the first instance, to advert to so much of the general law of conspiracy as is relevant. 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 security to some object, lawful or unlawful.”

32. I have not included the reference to authority. A number of observations may be made about that passage. First, his Honour was speaking in general terms, unconfined by the facts of that case, about the law of criminal conspiracy in New South Wales. Secondly Deane J in Gerakiteys (1984) applied that description of a conspiracy to effect an improper purpose, although Deane J was quoting from a passage a little later in Sir Frederick Jordan’s judgment. Thirdly, and perhaps most persuasively, the Full Court of the Federal Court of Australia has approved that definition in Nirta (1983). Gallup J with whom Fox J agreed in substance defined the gist of the crime of conspiracy in the same terms as Sir Frederick Jordan had done by reference to the same authority. (See Gallup J’s judgment at 61.) It is also to be noted that in Regina v Cahill at 462 Reynolds J said that the ”gist of the common law crime of conspiracy is an agreement to effect an unlawful purpose or to effect a lawful purpose by unlawful means.”

33. Mr Leary points to DPP v Withers and argues that the law of criminal conspiracy should be similarly confined in Australia. The House of Lords there held that there was no such offence as conspiracy to commit a public mischief. It could not fit it in to one of the recognised heads.

34. First, it must be observed that the High Court of Australia dealt with a conspiracy to commit a public mischief in 1923. See The King v Boston (1923) 33 CLR 386. There the court upheld a charge of conspiracy to commit a public mischief. Sir Adrian Knox expressly recognised such an offence at 392, where his Honour said that it is “settled law that an agreement or combination to do an act which tends to produce a public mischief amounts to a criminal conspiracy.” Isaacs and Rich JJ adopted Willes J’s classical definition of a criminal conspiracy at 396, although finding it not necessary to define the exact limits of the word unlawful in that connection. It is also interesting to observe the remark of Higgins J at 408, where his Honour said:

“Personally, I have great sympathy with his reluctance to treat an agreement as an offence, where the act to be done under the agreement is not itself a breach of the law, and the Judge is asked to say, on his view of the public interest, that a certain agreement is injurious to the public. It is for the legislature to say what acts are to be treated as criminal, and the court has not a roving commission to declare contracts criminal, or bad as being against public policy according to its own conception of what is expedient for or would be beneficial or conducive to the welfare of the State.”

His Honour did not find it necessary to act under such a roving commission in that case because it was clear that the act agreed upon, his Honour found in that case, was the crime of bribery. As I said, Isaacs and Rich JJ said:

“It is not necessary to define the exact limits of the word ‘unlawful’ in that connection, because it is beyond doubt that at all events they include the case where a member of parliament agrees for a pecuniary remuneration to violate the law regulating his duties in that capacity.”

It seems that their Honours were not contemplating an offence necessarily committed by a parliamentarian, but what their Honours described at 403 as “his legal duty to the State”. In other words it seems, although it is not clear to me, that their Honours contemplated an agreement which did not amount to an agreement to commit a crime. Higgins J regarded the agreement in that case as one to commit a crime.

35. Mr Leary argues that the New South Wales Court of Criminal Appeal’s judgment in Cahill , and especially that of the Chief Justice Sir Laurence Street, supports the arrest in what has been described by McHugh J in Peters at [53] as “the inherent potential for dynamic development of Willes J’s definition”. I do not agree. The focus of Street CJ’s remarks was that the

“Crown’s case involved an assertion that, over and above the relevant statutory provisions, the criminal law has a legitimate concern with what was described as the purpose for which the institution of marriage was designed. This postulates some recognition of a moral significance of the institution of marriage superadded to its legally prescribed significance. The moral repugnancy suggested in this case is that the intentions of the appellants involved a repudiation of this moral significance.”
That was a case of a statutory conspiracy. The conspiracy alleged was a conspiracy to prevent the enforcement of the Migration Act 1958 of the Commonwealth. Such conduct was alleged to be contrary to s 86(1)(b) of the Crimes Act 1914 . Street CJ at 458 was at pains to assert that it is

“clear that religious precepts do not, in this country, affect the application of the ordinary criminal law, unless and until such precepts find expression through a validly made law of the Commonwealth or the states.”

If it were otherwise, his Honour said, “the outcome of a criminal trial could be affected by the varying religious convictions of the persons who happen to constitute the jury”. Interestingly, Mahoney JA, as his Honour then was, said at 465:

“To do what is legal in a way which is offensive to public morality may be relevant in relation, e.g., to the law of conspiracy: that is a matter on which it is not necessary to express an opinion.”

36. In my opinion the definition of Sir Frederick Jordan is still the law in New South Wales. There is no authoritative determination that the offence of criminal conspiracy in New South Wales is contained by the House of Lords’ decision in Withers . Therefore, in my opinion, the offence charged in Count 2 is one known to the law in New South Wales.

37. I turn now to consider Mr Leary’s second argument that insofar as both counts are concerned, there is no evidence capable of establishing that there was an agreement nor is there evidence capable of establishing that Ms Kucukeren intended that such an agreement would be carried out.

38. In advancing this argument Mr Leary acknowledged that in order to obtain his permanent stay, he must satisfy me that the criminal proceedings against his client are foredoomed to failure and for that reason an abuse of process. He referred me to R v Walton and Gardiner (1993) 177 CLR 378 and to a passage in Regina v Smith (1995) 1 VR 10 where it was said that criminal proceedings “are an abuse of process, not if it can be said of them that it is quite clear that they will very likely fail, but if it can be said of them that it is quite clear that they must inevitably fail.”

39. Mr Leary argues that the Crown case relies solely upon the admissions of his client to the police and he argues by reference to the recorded interview with the police that there was no such evidence capable of establishing either the agreement or an intention that the robbery should occur.

40. I have viewed the recorded video of the interview and read the transcript. His client presents in a natural and unaffected way in the record of interview. She appears to be answering the questions in a frank and unobtuse manner. However, I am not of the opinion that the prosecution of her on these charges must inevitably fail for the reasons advanced by Mr Leary. Mr Leary carefully drew my attention to various passages in the record of interview to substantiate his argument. One of the difficulties with Mr Leary’s argument is that it often depended upon passages being linked or interpreted in a particular way. It could well be, of course, that a jury accepts part of what his client says in the record of interview and rejects part. They would be directed in such a way by the trial judge.

41. I am satisfied that there is evidence of both an agreement and an intention. I find that evidence in the following passages in the record of interview. At the answer to Q79, the applicant said that she remembers Mr Lee McArthur asking whether she could do him a favour “and I said, yeah okay. And then he asked me to keep an eye out on the ATMs for him to see if Armaguards get there.” She did acknowledge next day she tried looking and she could not see. She told him about Armaguards attending particular ATMs on Friday mornings. She drew his attention to the fact that she became annoyed because the presence of Armaguards delayed her. She informed him that she did not know whether that information was still reliable or not because she had not attended for some time.

42. In the answer to Q127, so far as the allegation that she exchanged the information with Mr McArthur for a promise of $5,000, she was asked about an answer she gave about Mr McArthur giving her his share of the proceeds. That was followed by the police officer asking when did he say that. Ms Kucukeren said in response to that question (127) “The first time he told me about it, he said, I’ll give you a big cut, and I think I asked him how much, and he said, five grand. Yeah.” It seems to me clear that that passage is capable of amounting to evidence that in the first conversation she had with Mr McArthur, she offered to exchange the information which he sought about the ATMs in the shopping complex for the promise to be paid, from the proceeds of the robbery, $5,000. Whether or not a jury accepts that interpretation is of course another question but the evidence in my opinion is capable of bearing that interpretation and that meaning.

43. So far as evidence of an intention that the robbery should proceed was concerned, Ms Kucukeren was asked at Q273 when she gave the information to Mr McArthur about the ATMs “What did you think he was going to do with that information?”. She answered in the following terms:

“Well, I think I knew what he was going to do, but I didn’t want to say that I knew. Like I knew, like I didn’t know if he was actually going to do it, but I knew that something bad was going to happen. Because there’s no way he’d just ask out of curiosity. Like I know that something bad was going to happen cause he asked me. And he never, he never ever asked me anything like that unless he’s going to do something. But I knew something bad was going to happen.”

She elaborated in response to Q314 about the “something bad” that she had earlier referred to, although it was in a different context. But she was asked what she expected the robbers would do to the security guards. Her answer was “Beat them up, or hold guns to them, or have weapons on them, or something like that. Like generally hurt them.”

44. In my opinion the evidence is capable of sustaining a conclusion that Ms Kucukeren agreed with Mr MacArthur in exchange for a promise of $5,000 to offer information to him about the movements of security guards at the ATMs in her shopping complex and that she knew and intended at the time of that exchange that the robbery would proceed. As I say, whether or not a jury accepts that view is another question altogether but for the reasons which I have given I reject the application for a permanent stay of both counts in the indictment.

45. I should record as part of my judgment that I have received considerable assistance from both Mr Pickering and Mr Leary so far as their research and submissions were concerned. References to authorities which they did not refer to are not, in any way, meant to be critical of the assistance which they rendered to me.
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