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R v Caldwell

R v Caldwell

Case [2009] VSCA 41 18 March 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 116 of 2007

THE QUEEN
	v
MICHAEL GAYTHORNE CALDWELL

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JUDGES:	KELLAM, DODDS-STREETON and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 October 2008
DATE OF JUDGMENT:	18 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 41

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CRIMINAL LAW – Conspiracy – Two counts alleging separate conspiracies to steal tree ferns on one count and timber on the other – Presentment referring to names of three landowners from whom it was alleged tree ferns and/or timber stolen – Whether the prosecution was required to prove that the agreement to steal was an agreement to steal from all three landowners or whether the provision of the names of the landowners was merely the provision of particulars – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Gamble SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr D A Dann	Littleton Hackford and D’Alessandro

KELLAM JA:

The applicant was presented at the County Court at Morwell on 31 January 2007 on a presentment containing two counts of conspiracy to steal. The first count was that at Boolarong in Victoria between 1 March 2000 and 7 March 2004 the applicant agreed with his son, Kelly Caldwell, to pursue a course of conduct of stealing tree ferns. It was alleged that this agreement related to tree ferns belonging to Hancock Victorian Plantation Pty Ltd, four members of the Schmidt family, and the State of Victoria. The second count was in identical terms, save that it was alleged that the conspiracy was to steal timber logs. Likewise it was alleged that this agreement related to timber logs belonging to the same parties.

The trial proceeded for 26 days until 8 March 2007 when a jury returned a verdict of guilty on both counts. On 16 March 2007, and having heard a plea in mitigation earlier, the trial judge sentenced the applicant to three years’ imprisonment on each count. He ordered that one year of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of four years’ imprisonment. The sentencing judge directed that a minimum of two years and nine months’ imprisonment be served before the applicant became eligible for parole.

The applicant seeks leave to appeal against his conviction on two grounds:

Ground 1: the trial of the applicant miscarried in that the prosecution were (sic) permitted to alter its case after the close of evidence and at the stage of the final address.
Ground 2: the trial of the applicant miscarried in that the learned trial judge permitted the prosecution to seek convictions on the basis of conspiracies that were substantially different to the conspiracies as pleaded in the presentment.

Nature of the Crown case

In order to facilitate the consideration of the above two grounds it is necessary to explain briefly the nature of the Crown case and to summarise parts of the…

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 Caldwell

Details

AGLC: R v Caldwell [2009] VSCA 41
Case: [2009] VSCA 41
Decision Date: 18 March 2009

CaseChat Overview and Summary

The case of R v Caldwell involved a dispute where the defendant was charged with conspiracy to steal tree ferns and timber. The charges included two counts, each alleging separate conspiracies to steal from three different landowners. The prosecution presented evidence indicating that the defendant had conspired with others to steal tree ferns and timber from these landowners. The crux of the case revolved around whether the prosecution needed to prove that the conspiracy involved stealing from all three landowners or if merely identifying the names of the landowners in the charges sufficed as particularisation.

The court had to determine whether the prosecution's obligation was to prove that the agreement to steal was an agreement to steal from all three landowners named in the charge or whether the inclusion of the landowners' names in the charge was sufficient as a matter of particularisation. The defendant argued that the prosecution was required to prove that the conspiracy involved stealing from all three landowners, whereas the prosecution contended that the provision of the names was adequate particularisation.

In deciding the matter, the court ruled that the provision of the names of the landowners in the charge was sufficient particularisation and did not necessitate proof that the conspiracy involved stealing from all three. The court concluded that the prosecution did not need to prove that the conspiracy involved stealing from all three landowners, as the inclusion of their names in the charge was sufficient to identify the subject matter of the alleged conspiracies. The application for leave to appeal was subsequently refused.

The court's decision clarified the requirements for particularisation in conspiracy charges, affirming that the inclusion of the names of the landowners in the charges was sufficient. The court did not require proof that the conspiracy involved stealing from all three landowners, thereby setting a precedent for similar cases in the future.

Orders