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R v Theophanous

R v Theophanous

Case [2003] VSCA 78 20 June 2003

Breach of Contract

Causation

Criminal Liability

Breach of Parliamentary Privilege

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 149 of 2002

THE QUEEN

ANDREW CHARLES THEOPHANOUS

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JUDGES:	WINNEKE, A.C.J., VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	5, 6, 7 and 8 May 2003
DATE OF JUDGMENT:	20 June 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 78

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CRIMINAL LAW – Breach of parliamentary privilege – Cross-examination of applicant at trial in breach of Parliamentary Privileges Act, s.16(3) – Consequences thereof.
CRIMINAL LAW – Conspiracy to defraud Commonwealth – Requirement to specify with precision nature and scope of conspiracy alleged – Trial judge’s directions in respect of conspiracy deficient – Requirements imposed by s.86(3) of Crimes Act 1914 (Cth.) discussed.
CRIMINAL LAW – Propriety of conduct of law enforcement authority – Whether conduct of law enforcement officers induced and/or constituted commission of offence or elements thereof – Applicability of principles applied in Ridgeway v. The Queen (1995) 184 C.L.R. 19.

EVIDENCE – Admissibility of recorded conversations through listening devices – Devices secured by warrants unlawfully obtained – Whether judge’s discretion not to exclude evidence correct. Australian Federal Police Act 1979, s.12G.

BRIBERY OF MEMBER OF PARLIAMENT – s.73A(1) and (2) Crimes Act 1914 (Cth.) – Meaning of “understanding” in respect of receipt of property or benefit – Whether “mutuality” required.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. A. J. Howard, Q.C., Mr. D. J. Lane and Mr.R.T.Barry	Solicitor for the Director of Public Prosecutions (Cth.)
For the Applicant	Mr. S. A. Shirrefs, S.C., and Dr. J.F. Bleechmore	Doogue & O’Brien

THE QUEEN v. ANDREW CHARLES THEOPHANOUS

INDEX TO JUDGMENT

Subject Matter Page Reference Paragraphs

Description of events giving rise
to the applications for leave 1-3 1-3

Summary of evidence upon which
convictions on counts 2, 3, 5 and 6
were based 3-30 4-55

Grounds of appeal argued in this
Court 31-32 56

Ground 16 – Parliamentary Privilege -
Reasons 33-47 57-72

Grounds 9, 17 – Misdirections in respect
of conspiracy alleged in count 2 –
Reasons 48-70 73-111

Ground 20 – Non-exclusion of
           evidence procured as consequence of
obtaining warrants in breach of s.12G(2)
           Australian Federal Police Act 1974 (Cth.) –
           Reasons  70-76  112-117

Grounds 1A, 1B, 11 – Failure to
           stay trial of count 2 and/or exclude
           evidence unlawfully or unfairly
           obtained – Reasons  76-93  118-165

Grounds 14 and 15 – Meaning of
“understanding” – s.73A Crimes Act
1914 (Cth.) 93-100 166-185

Grounds 5A, 5B, 12, 13 – Alleged
           error in failing to stay trial in respect
           of counts 5 and 6 and/or in failing to
           exclude evidence on basis that evidence
           unlawfully or unfairly obtained –
           Reasons  100-105  186-201

Conclusions on conviction applications 105-107 202-204

WINNEKE, A.C.J.;
VINCENT, J.A.,
EAMES, J.A.:

The applicant, Andrew Theophanous (whom we will call “the applicant”) was charged on indictment with six offences alleging breaches of the Crimes Act 1914 (Cth.). After a trial, lasting some two months in the County Court, the applicant was convicted on four of those counts (counts 2, 3, 5 and 6).…

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 Theophanous

Details

AGLC: R v Theophanous [2003] VSCA 78
Case: [2003] VSCA 78
Decision Date: 20 June 2003

CaseChat Overview and Summary

In the case of R v Theophanous, the appellant was charged with multiple offences, including conspiracy to defraud the Commonwealth and bribery of a member of parliament. The High Court of Australia was called upon to address several critical legal issues arising from the trial, including the admissibility of evidence obtained through unlawful warrants, the conduct of law enforcement officers, and the trial judge's directions concerning the conspiracy charge. The appellant's primary contention was that his cross-examination at trial constituted a breach of parliamentary privilege and that certain evidence was inadmissible due to the unlawful nature of the warrants under which it was obtained. Additionally, the appellant argued that the trial judge's instructions regarding the conspiracy charge were deficient and that the evidence did not sufficiently specify the nature and scope of the alleged conspiracy.

The court examined whether the cross-examination of the appellant breached parliamentary privilege, finding that it did, and considered the implications of this breach under the Parliamentary Privileges Act. Furthermore, the court assessed whether the trial judge's directions adequately informed the jury of the requirements to establish a conspiracy under section 86(3) of the Crimes Act 1914 (Cth.). The court found that the judge's directions were deficient and did not sufficiently clarify the nature and scope of the conspiracy, necessitating a re-evaluation of the sufficiency of the evidence presented. Additionally, the court reviewed the conduct of law enforcement officers and whether it induced or constituted an offence, applying principles from the case of Ridgeway v. The Queen.

The High Court held that the cross-examination constituted a breach of parliamentary privilege, which had significant implications for the trial's fairness and the admissibility of evidence. The court further determined that the trial judge's directions on conspiracy were insufficient and that the evidence did not meet the statutory requirements. Consequently, the convictions were quashed, and a retrial was ordered. The court also considered the admissibility of evidence obtained through unlawful warrants but found that the judge's decision not to exclude this evidence was correct. Finally, the court concluded on the meaning of "understanding" in the context of bribery, determining that mutuality was not a necessary component for the offence to be established.

Orders