R v Rechichi
[1999] WASC 221
R -v- RECHICHI [1999] WASC 221
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 221 | |
| 10/11/1999 | |||
| Case No: | INS:186/1998 | 27 OCTOBER 1999 | |
| Coram: | SCOTT J | 27/10/99 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | The accused's conduct did not constitute any of the offences alleged in the indictment and as a result the jury was directed to acquit | ||
| PDF Version |
| Parties: | THE QUEEN RAFFAELE RECHICHI |
Catchwords: | Criminal law and procedure Indictable offence Attempting to procure another to commit wilful murder Criminal Code, s 556 Whether "attempt" in s 556 should be accorded the definition of Criminal Code, s 4 No case submission Insufficient evidence to make out prima facie case Was the relevant conduct sufficiently proximate to the commission of the substantive offence "Attempt" attaches not to the offence to be procured but rather to the procurement Accused's conduct not constituting any of the offences alleged in the indictment Jury directed to acquit |
Legislation: | Criminal Code (WA) s 556, s4, s7(d) Criminal Code (QLD) s 539 |
Case References: | Cox v Salt (1994) 12 WAR 12 Gebert v The Queen [1992] 60 SASR 110 Healy v R, unreported; CCA SCt of WA; Library No 950533; 6 October 1995 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 R v Bilick [1984] 36 SASR 321 R v Briggs (1987) 24 A Crim R 98 R v Morris (1997-98) A Crim R 408 R v Webb [1995] 1 Qd R 681 Tarzia v R, unreported; CCA SCt of WA; Library No 8761; 15 March 1991. Ah Poh Wai v R (1995) 132 ALR 708 Healy v The Queen, unreported; CCA SCt of WA; Library No 950533; 6 October 1995 Leavitt v The Queen [1995] 1 Qd R 343 May v O'Sullivan (1995) 92 CLR 654 Meissner v The Queen, unreported; High Court of Australia; 16 August 1995 R v Ayles (1993) 66 A Crim R 302 R v Broadfoot [1976] 3 All ER 753 R v Murphy (1985) 4 NSWLR 42 R v Murray [1982] 1 WLR 475 R v O'Neill (1995) 81 A Crim R 458 R v Susak, unreported; SCt of NT; Library No 9809002; 9 June 1999 Reynolds v Grealish, unreported; SCt of WA; Library No 7332; 28 October 1988 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
AND
RAFFAELE RECHICHI
Catchwords:
Criminal law and procedure - Indictable offence - Attempting to procure another to commit wilful murder - Criminal Code, s 556 - Whether "attempt" in s 556 should be accorded the definition of Criminal Code, s 4
No case submission - Insufficient evidence to make out prima facie case - Was the relevant conduct sufficiently proximate to the commission of the substantive offence - "Attempt" attaches not to the offence to be procured but rather to the procurement - Accused's conduct not constituting any of the offences alleged in the indictment - Jury directed to acquit
Legislation:
Criminal Code (WA) s 556, s4, s7(d)
Criminal Code (QLD) s 539
(Page 2)
Result:
The accused's conduct did not constitute any of the offences alleged in the indictment and as a result the jury was directed to acquit
Representation:
Counsel:
Crown : Mr K P Bates
Accused : Mr A O Karstaedt
Solicitors:
Crown : State Director of Public Prosecutions
Accused : Kevin Penkin & Associates
Case(s) referred to in judgment(s):
Cox v Salt (1994) 12 WAR 12
Gebert v The Queen [1992] 60 SASR 110
Healy v R, unreported; CCA SCt of WA; Library No 950533; 6 October 1995
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
R v Bilick [1984] 36 SASR 321
R v Briggs (1987) 24 A Crim R 98
R v Morris (1997-98) A Crim R 408
R v Webb [1995] 1 Qd R 681
Tarzia v R, unreported; CCA SCt of WA; Library No 8761; 15 March 1991.
Case(s) also cited:
Ah Poh Wai v R (1995) 132 ALR 708
Healy v The Queen, unreported; CCA SCt of WA; Library No 950533; 6 October 1995
Leavitt v The Queen [1995] 1 Qd R 343
May v O'Sullivan (1995) 92 CLR 654
Meissner v The Queen, unreported; High Court of Australia; 16 August 1995
R v Ayles (1993) 66 A Crim R 302
R v Broadfoot [1976] 3 All ER 753
R v Murphy (1985) 4 NSWLR 42
(Page 3)
R v Murray [1982] 1 WLR 475
R v O'Neill (1995) 81 A Crim R 458
R v Susak, unreported; SCt of NT; Library No 9809002; 9 June 1999
Reynolds v Grealish, unreported; SCt of WA; Library No 7332; 28 October 1988
(Page 4)
1 SCOTT J: On Wednesday, 27 October 1999, I directed the jury in this trial that the charges contained in the indictment should be dismissed. The ruling followed a submission of no case to answer at the conclusion of the prosecution case.
2 The accused was charged on indictment that:
"(1) Between 1 November 1997 and 26 February 1998 at Balcatta and other places [he] attempted to procure another to aid [himself] to wilfully murder ANTHONY JOHN TEMPLEMAN.
(2) AND IN THE ALTERNATIVE to Count 1 that between 1 November 1997 and 26 February 1998 at Balcatta and other places [he] attempted to procure another to falsely represent himself to be a public officer and assume to do an act by virtue of his pretended office.
(3) AND FURTHER that at the same time and at the same places referred to in Count 1 [he] attempted to procure another to aid [himself] to wilfully murder PETER VICTOR SMITH.
(4) AND IN THE ALTERNATIVE to Count 3 that during the same time and at the same places referred to in Count 1 [he] attempted to procure another to falsely represent himself to be a public officer and assume to do an act by virtue of his pretended office.
(5) AND FURTHER that at the same time and at the same places referred to in Count 1 [he] attempted to procure another to aid [himself] to wilfully murder ANDREW CECIL WATES.
(6) AND IN THE ALTERNATIVE to Count 5 that during the same time and at the same places referred to in Count 1 [he] attempted to procure another to falsely represent himself to be a public officer and assume to do an act by virtue of his pretended office."
3 The Crown's case relied substantially on the evidence of one "Mr X", whom the Crown alleged was procured by the accused to aid him in the proposed criminal conduct alleged in each count on the indictment.
(Page 5)
4 It is not necessary to canvas the evidence in detail beyond saying that on 11 and 13 February 1998, the Crown alleged that the accused spoke to Mr X with a view to having the victims named in counts 1, 3 and 5 on the indictment wilfully murdered.
5 The plan was that the accused was to acquire suitable firearms and with the assistance of Mr X arrange to shoot two detectives from the Joondalup CIB whilst they were travelling in a police vehicle. Mr X was to assist in obtaining the vehicle and the identification from the police officers after they were killed. A boat was to be acquired and the bodies of the police officers dumped at sea. A high-pressure cleaner was to be purchased for the purpose of cleaning blood or other forensic traces from the vehicles concerned. Once the police identification and the police car had been acquired together with the firearms and the boat, the three victims were to be located and each in turn stopped by Mr X, who was to be driving the police vehicle. Mr X was then to use the police identification to compel the victims to go to the rear of the police vehicle where the accused would be waiting. They would be shot and killed by the accused. The bodies of the three victims were also to be taken out to sea in the boat and disposed of. The vehicle was again to be washed with a high-pressure washer so that no forensic evidence would remain.
6 After the scheme was revealed by the accused to Mr X, Mr X passed the information to the police. At that time the police were in the process of charging Mr X with an unrelated offence. Mr X agreed to co-operate with the police for the purpose of obtaining and providing evidence against the accused. Via Mr X, the police arranged for an undercover police officer (Operative 35) to pose as an illegal firearms dealer, for the purpose of selling firearms to the accused. Again, without descending into detail, on 26 February 1998, Operative 35 handed over four firearms to the accused at a car park in Morley. The firearms at that stage where handed to the accused on the basis that he would hold them over the weekend, as the undercover operative said that he did not want to carry them around during that time. The accused had not paid for the firearms because he did not have the money to do so. The arrangement was that he would pay for the firearms shortly thereafter. Once the firearms were in the accused's possession, other police officers, who were surveying the transaction, moved in and effected his arrest.
7 I would emphasise that these facts arise from the Crown's case and were the allegations against the accused. For the purposes of these reasons and for that purpose only, it was necessary to take the Crown's case at its highest and ask whether that evidence was capable of sustaining
(Page 6)
- a verdict of guilty by proof beyond reasonable doubt: Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 per Malcolm CJ at 489. That case followed a long line of authority: see R v Bilick [1984] 36 SASR 321; Gebert v The Queen [1992] 60 SASR 110; R v Briggs (1987) 24 A Crim R 98; R v Morris (1997-98) A Crim R 408; Cox v Salt (1994) 12 WAR 12.
8 Since Morrison v Kiwi Electrix Pty Ltd it is settled that the question for the court is whether the evidence, taken at its highest, is capable of sustaining a verdict of guilty by proof beyond reasonable doubt. This was the standard applied by the court in Morrison in coming to the decision that there was no case to answer.
9 The offences with which the accused was charged arise under s 556 of the Criminal Code which provides:
"556 Any person who attempts to procure another to do any act or make any omission, whether in Western Australia or elsewhere, of such a nature that, if the act were done or the omission were made, an offence would thereby be committed under the laws of Western Australia or the laws in force in that place where the act or omission is proposed to be done or made, whether by himself or by that other person, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself attempted to do the same act or make the same omission in Western Australia."
10 In the course of the argument as developed by counsel for the accused, attention was focussed upon the meaning of the word "attempts" within that offence provision. The attempt provision in the Criminal Code is contained in s 4 which provides:
"4 When a person, intending to commit an offence, begins to put his intention into execution by doing an act that is more than merely preparatory to the commission of the offence but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.
It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by
(Page 7)
- circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
- It is immaterial that by reason of circumstances not known to the offender, it is impossible in fact to commit the offence.
The same facts may constitute one offence and attempt to commit another offence."
11 Counsel for the accused argued that the s 4 "attempt" definition should be imported into s 556. In my opinion that is not so. Section 556 is not an attempt to commit an offence but rather an attempt to procure another to do an act or make an omission which would constitute an offence. In that respect, in my opinion, this offence is an inchoate offence where "attempt" should not be given the defined meaning in s 4. The same approach has been taken in relation to the offence of attempting to pervert the course of justice: see Healy v R,unreported; CCA SCt of WA; Library No 950533; 6 October 1995 per Malcolm CJ at 4:
"The offence is a substantive offence: R v Rowell[1978] 1 WLR 132 at 138; Reg v Machin (1980) 71 Cr App R 166 at 170; and The Queen v Rogerson (1992) 174 CLR 268 at 297-298 per McHugh J. It is not to be confused with attempts to commit other substantive offences to which the definition of 'attempt' in s 4 of the Code applies. Considerations, such as whether the relevant conduct was preliminary, merely preparatory or sufficiently proximate to the commission of the substantive offence, which are relevant to the general law of attempts, do not necessarily have any application to an attempt to pervert the course of justice: R v Murphy (1985) 4 NSWLR 41 at 49."
12 In my opinion the same considerations apply to this offence so that the "attempt" alleged in the indictment attaches not to the offence to be procured, but rather, to the procurement. See Tarzia v R, unreported; CCA SCt of WA; Library No 8761; 15 March 1991. Malcolm CJ, Wallace and Pidgeon JJ in a Judgment of the Court said at 16:
"Had the applicant succeeded in finding a genuine contract killer and had Mr Walker been wilfully murdered, the applicant would have been guilty of wilful murder as a principal in accordance with s 7(d) of the Code. Had the assassin attempted to wilfully murder Walker, the applicant would be likewise
(Page 8)
- guilty of attempted wilful murder in accordance with s 7(d). By virtue of s 556, having attempted to procure the wilful murder, he was liable to the same punishment as if he himself had attempted the wilful murder of Walker."
13 The difficulty in this case arose from a fact that the proposed criminal conduct was very much at the planning stage. On the Crown's case, before any charged wilful murder could take place, the following steps had to be taken:
1 Appropriate firearms had to be acquired. There was evidence to suggest that the firearms supplied had to be tested. In that respect, as I have said, the accused had taken possession of firearms for the purpose of safekeeping when he was arrested on 26 February 1998. Unbeknown to him, those firearms had been rendered innocuous by the police ballistic section before they had been supplied.
2 A boat had to be acquired for the purpose of dumping bodies at sea.
3 Two detectives from the Joondalup CIB had to be murdered whilst in a police car, so that their identification and the police car could be taken for use in the wilful murders.
4 The accused had to acquire a high-pressure washer so that forensic evidence could be removed.
5 The accused had to identify where the victims lived and identify when and where they could be located in their motor vehicles so that the scheme could be put into effect.
14 When all of those matters were in place, Mr X was to aid the accused by using the police vehicle to intercept the victims and bring them back to the police car, using the police identification. The accused was to be in the back of the police car and was to shoot and kill each of them.
15 In my opinion, the Crown's case fell a long way short of establishing the elements of the offence in s 556 of the Criminal Code set out earlier in these reasons. That offence is not committed where, as here, the criminal conduct was in the early planning stage. The act referred to s 556 is an act, which if done, would constitute an offence. In that respect, the final act to be committed by Mr X, that is the bringing of the victims to the police car and putting them into a position where the accused could shoot them, may have constituted such an act had that stage been reached. The criminal conduct alleged in this case, however, fell far short of that
(Page 9)
- situation. As Mr X said in evidence, the criminal conduct was at the stage of planning where the plan was being varied on a day to day basis. None of the necessary preliminary matters had been finalised.
16 It follows, in my opinion, that the Crown's evidence did not meet the necessary standard to require the accused to answer the case.
17 I would add that in my view, no criticism could be levied at the police for the way in which this inquiry was conducted. As I said when discharging the jury, the police were in an invidious position. On the information provided to them, three citizens of this State (including a bailiff and Supreme Court Judge) were in danger of being wilfully murdered. The police had, as a primary responsibility, the obligation to protect those citizens. To do that, it was necessary for the accused to be kept under constant police surveillance and within police control. Operative 35 was used by the inquiry officers in such a way the accused would not seek to acquire firearms from another source and so become beyond the control of the inquiry officers.
18 Whether any other offence or offences were committed by the accused as a result of the conduct the subject of the Crown's case, does not fall for consideration in these reasons. For the reasons that I have outlined, the accused's conduct did not go far enough to constitute any of the offences alleged in the indictment and the jury was directed to acquit.
19 I would add for the sake of completeness that the only other case that counsel could find on s 556 was R v Webb [1995] 1 Qd R 681 which dealt with the corresponding provision of the Criminal Code (QLD), s 539. That case, heard by the Queensland Court of Criminal Appeal, involved an appeal against conviction. The issue in that case turned upon whether the offence of attempting to procure could also encompass a circumstance of aggravation and so is not directly on point to the matters under consideration. However, the Judgment of the Court comprising, Davies JA, Pincus JA and Lee J, it was said at 683:
"Section 539 necessarily contemplates that the act in question, although intended, will not have been done or even attempted. Where it can be proven beyond reasonable doubt that the defendant not only attempted to procure the act to be done, but also attempted to procure the act to be done in a certain manner or in certain circumstances, those circumstances will be no more hypothetical in character than the doing of the act itself. In such a case therefore, the hypothetical nature of those
(Page 10)
- circumstances of aggravation cannot be a valid reason for precluding their incorporation as part of a charge under s 539."
20 Those considerations of course were peculiar to Webb's case, but for the purpose of this case I agree with the characterisation of the offence as one in which the conduct concerned is entirely hypothetical in the sense that the act in question will not have been done or even attempted.
21 It is not necessary to determine the exact dividing line as to when an attempted procurement will be sufficiently proximate to the crime to constitute an offence under s 556. It is sufficient for the purpose of these reasons to say that the evidence in the Crown's case in this instance, in my view, fell far short of the requirements of the section.
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