R v Skipper

[2003] TASSC 75

[2003] TASSC 75

CITATION:            R v Skipper [2003] TASSC 75

PARTIES:  R
  v
  SKIPPER, Corey William

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  22/2003
DELIVERED ON:  13 August 2003
DELIVERED AT:  Hobart
HEARING DATE:  12 August 2003
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Information, indictment or presentment – Averments – Particulars – Defrauding the Commonwealth – Multiple alternative bases of accessorial liability alleged – Circumstantial case.

Aust Dig Criminal Law [714]

REPRESENTATION:

Counsel:
           Crown:  I M Arendt and J Barnett
           Accused:  O M McTaggart
Solicitors:
           Crown:  Commonwealth Director of Public Prosecutions
           Accused:  Wallace, Wilkinson & Webster

Judgment  Number:  [2003] TASSC 75
Number of paragraphs:  7

Serial No 75/2003
File No 22/2003

THE QUEEN v COREY WILLIAM SKIPPER

REASONS FOR RULING DURING TRIAL  BLOW J

13 August 2003

1. Yesterday I refused an application made by Mrs McTaggart on behalf of the accused for particulars of the charges in the indictment.  These are my reasons for refusing that application.

1. The indictment contains 22 counts by which a Mr Arnol and this accused have been charged with defrauding the Commonwealth, contrary to the Crimes Act 1914 (Cth), s29D. In each count, it is alleged that Arnol was the principal offender, and that this accused "aided, abetted, counselled, procured, or was directly or indirectly knowingly concerned in or a party to" Arnol committing the crime. Mrs McTaggart submitted that the Crown had alleged a great many alternative bases of criminal liability in respect of each count, and that particulars should be provided as to which alternatives the Crown proposed to rely on, in order properly to make clear the case that the accused is required to meet. In response to a request for particulars, a letter was sent from the Office of the Commonwealth Director of Public Prosecutions on 11 August listing eight of the Crown's contentions, but not cross-referencing any of them to any particular basis of criminal liability, such as aiding, or abetting, or procuring. Item 2 in that letter asserted that this accused had asked Arnol "to credit the amounts to his account No 57711 with the Devonport branch of the Commonwealth Bank or give him the Centrelink cheque". Mrs McTaggart submitted that particulars of the alleged request or requests should be provided.

1. There is nothing in the Criminal Code that expressly empowers this Court to make an order for the delivery of particulars, but there is ample authority establishing that it has authority to make such an order: Johnson v Miller (1937) 59 CLR 467 at 497; Ex parte Graham; re Dowling [1969] 1 NSWR 231 at 240; R v Turner [2000] TASSC 177 at par44. It is also clear that it is preferable, when possible, to frame an indictment narrowly so as to make clear the real nature of the case against the accused, rather than including every possible basis of accessorial criminal liability. See Giorgianni v R (1985) 156 CLR 473 at 497. However, from time to time there are cases when the Crown is properly able to charge a person with a crime without being able to specify one particular basis of criminal liability. Examples of this include murder cases in which the Crown has been able only to allege that the accused either killed the deceased or got someone else to do so: Thatcher v R (1987) 39 DLR (4th) 275; Giannetto v R [1997] 1 Cr App R 1; R v Serratore (1999) 48 NSWLR 101. Similarly, in R v Leivers [1999] 1 Qd R 649, the appellants had been properly prosecuted for murder on the basis that neither struck the fatal blows, but each of them was guilty either on the basis that he aided the principal offender in committing the crime, or on the basis that the murder was committed in the prosecution of an unlawful common purpose: Criminal Code (Qld), ss7(1)(c) and 8.

1. In Giannetto (supra) at 8 – 9, Kennedy LJ said:

"When the Crown allege, fair and square, that on the evidence, the defendant must have committed the offence either as principal or as secondary offender, and make it equally clear that they cannot say which, the basis on which the jury must be unanimous is that the defendant, having the necessary mens rea, by whatever means caused the result which is criminalised by the law.  The Crown is not required to specify the means, because the legal definition of the crime does not require it; and the defendant knows perfectly well what case he has to meet.  Of course, if (as will very often be so) the Crown nail their colours to a particular mast, their case will, generally, have to be established in the terms in which it is put."

1. In this case, the Crown contends that this accused is guilty of each of the 22 charges as a secondary offender, and that they cannot say which basis or bases of secondary liability is or are applicable.  I am not persuaded that they can or should be more precise than that in particularising the Crown case as to any charge. 

1. I turn to the question of the accused's alleged request or requests to Mr Arnol.  It is apparent from the Crown papers that the Crown relies on a body of documentary evidence to show that on 19 occasions funds were electronically transferred from a Centrelink bank account to the accused's bank account; that on two occasions cheques drawn on a Centrelink bank account were deposited into the accused's bank account; and that on one occasion a Centrelink cheque was drawn in favour of the accused and cashed.  It is apparent that the Crown also proposed to rely on documentary evidence to show that there were withdrawals from the accused's bank account following such transfers and deposits.  Counsel for the Crown, Mr Arendt, told me that the Crown's case was circumstantial.  There is nothing in the Crown papers to suggest that any direct evidence will be led of any conversation or communication whereby the accused asked Arnol to deposit any funds or give him a cheque.  It appears to be the Crown's case that the available evidence compels a conclusion that the accused asked Arnol to credit 21 amounts allegedly credited to the account, and to give him the cheque allegedly cashed.  In that situation, the Crown is not in a position to rely on any identifiable communication, and it would not be proper to require the Crown to provide particulars as to the date of any request, how it was made, where it was made, or where it was received.

1. For these reasons, I concluded that it was not appropriate to make an order for the provision of further particulars.