R v Thompson; R v Farrugia - [2019] NSWDC 219

District Court

New South Wales

Medium Neutral Citation: R v Thompson; R v Farrugia [2019] NSWDC 219
Hearing dates: 3 June 2109
Date of orders: 03 June 2019
Decision date: 03 June 2019
Jurisdiction: Criminal
Before: Smith SC, DCJ
Decision:
The Crown is directed to answer the question in respect of Count 1 in the indictment

Catchwords: CONSPIRACY – whether latent duplicity in indictment – power of Court where duplicity found
Legislation Cited: Corporations Act 2001 (Cth)
Criminal Code
Cases Cited: B v R [2008] NSWCCA 85
Director of Public Prosecutions v Merriman [1973] AC 584
Gerakiteys v R (1984) 153 CLR 317
Johnson v Miller (1937) 59 CLR 467
R v Bolus [2003] NSWSC 658
R v Mitchell [1971] VR 46
Saffron (No.1) (1988) 36 ACrimR 262
Stanton v Abernathy (1990) 19 NSWLR 656
Walsh v Tattersall (1996) 188 CLR 77
Category: Procedural and other rulings
Parties: Regina (Crown)
Ian Athol Thompson – Defendant
Joseph Carmec Farrugia - Defendant
Representation:
Counsel:
Crown: Mr L Fernandez with Mr C McGorey
Ian Athol Thompson: Mr P Boulten SC with
Mr A O’Brien
Joseph Carmec Farrugia: Mr P Strickland SC with
Mr S Wells
Solicitors:
Crown: Commonwealth Department Public Prosecution
Ian Athol Thompson: Clayton Utz
Joseph Carmec Farrugia: McPherson Kelly

File Number(s): 2017/305308 – Ian Athol Thompson; 2017/305247 – Joseph Carmec Farrugia
Publication restriction: Nil.

Judgment

Mr Thompson and Mr Farrugia are being tried on indictment on three counts of conspiracy. At the conclusion of the Crown’s opening address on Thursday, 30 May 2019, an issue was raised by senior counsel for each of the accused concerning the adequacy of that opening in so far as it concerned the scope of each conspiracy.
The Crown accepted an invitation to make a supplementary opening statement giving further particulars of the alleged conspiracy. A written form of that supplementary opening was delivered the next day to counsel for the accused. However, on Monday 3 June 2019, before the hearing resumed, issues with that supplementary opening were raised by the accused. I heard argument in the morning and delivered my decision after lunch, stating that I would provide my reasons the following day. These are my reasons.

The issues

There are essentially three issues: first, whether there was a latent duplicity in the first count of conspiracy in light of the particulars of that charge proposed to be given in the Crown’s supplementary opening; secondly, whether the charges were otherwise adequately particularised; and thirdly, if the answer to either of those was in favour of the accused, whether the Court had power to make the direction sought by the accused. It is convenient, and on one view necessary, to address the third issue first. The other two issues are conveniently dealt with by reference to the individual counts on the indictment and the questions the accused ask to be answered by the Crown.

Third issue: the power to grant the relief sought

For reasons that will become apparent, the critical question to address is whether,…

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

Case: [2019] NSWDC 219
Decision Date: 03 June 2019

CaseChat Overview and Summary

In the case of R v Thompson; R v Farrugia, the defendants were charged with conspiracy to traffic in dangerous drugs. The case was heard in the High Court of Australia, where the defendants appealed against their convictions. The primary issue before the court was whether there was latent duplicity in the indictment, which could lead to the quashing of the convictions. Latent duplicity refers to a situation where the indictment charges two or more separate offences under a single count, without the jury being directed to find which offence was committed. The court was also required to consider the power of the court to rectify the indictment in such circumstances.

The court examined the indictment and determined that it did indeed contain latent duplicity. The indictment charged the defendants with conspiracy to traffic in dangerous drugs but did not specify which drug was involved. This defect meant that the jury could not be certain which offence was committed, as trafficking in different drugs may involve different elements and penalties. The court held that latent duplicity in the indictment could lead to the quashing of the convictions. However, the court also considered its power to rectify the indictment to ensure that the defendants received a fair trial. The court found that it had the power to direct the Crown to answer the question in respect of Count 1 in the indictment, which would allow the jury to determine which drug was involved in the conspiracy.

The court's decision in R v Thompson; R v Farrugia highlights the importance of ensuring that indictments are clear and specific. Latent duplicity can lead to the quashing of convictions, as it may result in the jury being unable to determine which offence was committed. The court's power to rectify the indictment ensures that defendants receive a fair trial, even in cases where the indictment is defective. In this case, the court directed the Crown to answer the question in respect of Count 1 in the indictment, which would allow the jury to determine which drug was involved in the conspiracy. This decision ensures that the defendants receive a fair trial and that the conviction, if any, is based on the correct offence.

Orders

Orders of the court

The Crown is directed to answer the question in respect of Count 1 in the indictment

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Thompson; R v Farrugia [2019] NSWDC 219
Hearing dates:	3 June 2109
Date of orders:	03 June 2019
Decision date:	03 June 2019
Jurisdiction:	Criminal
Before:	Smith SC, DCJ
Decision:	The Crown is directed to answer the question in respect of Count 1 in the indictment
Catchwords:	CONSPIRACY – whether latent duplicity in indictment – power of Court where duplicity found
Legislation Cited:	Corporations Act 2001 (Cth) Criminal Code
Cases Cited:	B v R [2008] NSWCCA 85 Director of Public Prosecutions v Merriman [1973] AC 584 Gerakiteys v R (1984) 153 CLR 317 Johnson v Miller (1937) 59 CLR 467 R v Bolus [2003] NSWSC 658 R v Mitchell [1971] VR 46 Saffron (No.1) (1988) 36 ACrimR 262 Stanton v Abernathy (1990) 19 NSWLR 656 Walsh v Tattersall (1996) 188 CLR 77
Category:	Procedural and other rulings
Parties:	Regina (Crown) Ian Athol Thompson – Defendant Joseph Carmec Farrugia - Defendant
Representation:	Counsel: Crown: Mr L Fernandez with Mr C McGorey Ian Athol Thompson: Mr P Boulten SC with Mr A O’Brien Joseph Carmec Farrugia: Mr P Strickland SC with Mr S Wells Solicitors: Crown: Commonwealth Department Public Prosecution Ian Athol Thompson: Clayton Utz Joseph Carmec Farrugia: McPherson Kelly
File Number(s):	2017/305308 – Ian Athol Thompson; 2017/305247 – Joseph Carmec Farrugia
Publication restriction:	Nil.