Criminal Law—Conspiracy—Charge of conspiracy against two persons—Both convicted—Conviction of one quashed on appeal—Appeal by other—Effect of quashing on other conviction.
Decisions
1982, May 18. The following written judgments were delivered: - GIBBS C.J., AICKIN, WILSON AND BRENNAN JJ. The respondent John Edward Darby and one Leonard Clifford Thomas were tried together in the County Court in Victoria on a charge that at Melbourne on 17 February 1978 they unlawfully conspired together to rob, whilst having with them a firearm, one Vladoslav Gregurek of certain money. The trial proceeded for ten days, and on 12 July 1980 the jury returned a verdict of guilty against each of the accused persons. They were each sentenced to a term of imprisonment, and the respondent was also fined the sum of $2,000. (at p670)
2. Thereafter Thomas applied to the Full Court of the Supreme Court of Victoria sitting as a Court of Criminal Appeal for leave to appeal against his conviction. The application was successful. The Court gave leave, allowed the appeal, quashed the conviction and ordered that a verdict and judgment of acquittal be entered. The reason for his success lay in the Court's conclusion that while the evidence which was admissible against him established "an overwhelming case" to go to the jury that he conspired with the respondent to commit a criminal act, it fell short of establishing what that crime was. (at p670)
3. The case which the Crown presented against the respondent was stronger than its case against Thomas. There was evidence of admissions made by him to police officers which if accepted by the jury established that the object of the conspiracy was armed robbery. He did not seek to challenge his conviction until Thomas's conviction was quashed. Then, on 17 October 1980, he applied for leave to appeal on the sole ground that "the Applicant was jointly presented with one Leonard Clifford Thomas upon one count of conspiracy to rob whilst armed, the said count alleging a conspiracy between the two aforementioned persons and no-one else, and that the said Leonard Clifford Thomas was subsequently acquitted of this conspiracy by order of the Court of Criminal Appeal dated 29th September 1980." On the hearing of the application by the Full Court (Young C.J., Anderson and Jenkinson JJ.) it was argued for the applicant and not contested by the Crown that the Court was bound on the authority of the Privy Council in Dharmasena v. The King (1951) AC 1 to hold that where two persons are jointly presented for trial on a single count of conspiracy between themselves and no other, the acquittal of one necessitates the acquittal of the other. In acceding to the submission, the Chief Justice, with whom the other members of the Court agreed, noted that the Queensland Court of Criminal Appeal had recently come to a similar…
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.
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Details
AGLC
R v Darby [1982] HCA 32
Case
[1982] HCA 32
Decision Date
CaseChat Overview and Summary
The case of *R v Darby* concerned an appeal to the High Court of Australia following a conviction for an offence under the *Crimes Act 1914* (Cth). The appellant, Darby, had been found guilty of receiving stolen goods, the property of the Commonwealth. The central dispute revolved around the interpretation and application of section 171 of the *Crimes Act*, which deals with the offence of receiving property stolen or unlawfully obtained.
The High Court was required to determine whether the trial judge had erred in law in directing the jury. Specifically, the court had to consider whether the jury had been adequately instructed on the necessary mental element for the offence, namely, knowledge or suspicion that the goods were stolen or unlawfully obtained. The appeal also raised questions about the sufficiency of the evidence presented at trial to support a conviction.
The High Court, in allowing the appeal and quashing the conviction, held that the trial judge's directions to the jury were insufficient. Gibbs C.J. and Brennan J. (with whom Aickin J. agreed) found that the jury had not been properly directed as to the requirement that the accused must have had knowledge or a suspicion that the goods were stolen or unlawfully obtained at the time of receiving them. Murphy and Wilson JJ. also agreed that there had been a misdirection. The court emphasised that mere negligence or recklessness as to the stolen nature of the goods was not sufficient to establish guilt under section 171. The conviction was set aside due to the misdirection on the essential element of the offence.