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R v Won & Singh

R v Won & Singh

Case [2012] SADC 117 14 September 2012

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WON & SINGH
[2012] SADC 117
Ruling of His Honour Judge Soulio
14 September 2012
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Applicants charged with conspiracy – whether husband and wife can conspire – whether they can conspire with company of which they are principals.
Applicants sought quashing or a stay of criminal proceedings on the basis that the Information disclosed no offence. In the alternative applicants sought to have the Information dismissed in the interests of justice pursuant to s 11.5(6) of the Criminal Code.
Held: Application granted.
Criminal Law Consolidation Act 1935 (SA) s 281; Criminal Code Act 1995 (Cth) ss 11, 135; Acts Interpretation Act 1901 (Cth) ss 2B, 2C(1), referred to.
Kowbel v The Queen [1954] 4 DLR 337; Laila Jhina Mawji & Anor v The Queen [1957] AC 126; Mary Helen Byast v The Queen (1997) 96 A Crim R 61; R v LK; R v RK (2010) 241 CLR 177; Rondel v Worsley [1969] 1 AC 199; PGA v The Queen [2012] HCA 21; Wright v Cedzich (1930) 43 CLR 493; Midland Bank Trust Code Ltd & Anor v Green & Anor (No.3) [1979] 1 Ch 496; Chrastny (1992) 94 Crim App R 283; R v ICR Haulage Ltd & Ors [1944] 1 KB 551; R v McDonnell [1965] 1 QB 233; R v Shepherd (1998) 94 FLR 55; R v Dowding [2000] VSC 439; R v Turner & Ors (No.15) (2001) TASSC 144; Mok (1997) 27 A Crim R 438; Ridgeway v The Queen (1995) 184 CLR 19; R v Smith [1995] 1 VR 10; R v McGee (2008) 102 SASR 318; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; R v L (1991) 174 CLR 379, considered.

R v WON & SINGH
[2012] SADC 117
Introduction

Ms Won and Mr Singh, who are married, are charged with conspiring with one another, and with Pernas International Pty Ltd (‘Pernas’), the company of which they are directors and shareholders, to dishonestly obtain a financial advantage by providing false information to Customs to reduce the amount of Customs Duty and GST payable on imported timber.
They seek the quashing of the Information on the basis that a conspiracy cannot be committed between husband and wife. They further assert that the principals of a company cannot conspire with that company where, on the prosecution case, the actions of the company, were the actions of its principals.
The Charges
The applicants are charged on Information dated 23 May 2011 with conspiring to dishonestly obtain a financial advantage by deception.
The particulars of the offence alleged are that:
Between 30 June 2006 and 31 August 2008 at Frewville in the State of South Australia and elsewhere, Paul…

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 Won & Singh

Details

AGLC: R v Won & Singh [2012] SADC 117
Case: [2012] SADC 117
Decision Date: 14 September 2012

CaseChat Overview and Summary

The applicants, Won and Singh, were charged with conspiracy and sought a stay of proceedings on the basis of abuse of process. They argued that a husband and wife cannot conspire with a company of which they are both principals. The matter was heard in the Supreme Court of New South Wales. The applicants were directors and shareholders of a company, which was also charged with conspiracy. They claimed that the company could not conspire with them, as they were the principals of the company and thus part of the same entity.

The legal issues before the court were whether a husband and wife can conspire and whether they can conspire with a company of which they are both principals. The applicants argued that the prosecution was an abuse of process because it was inherently impossible for them to conspire with the company. The Crown, on the other hand, maintained that the applicants' arguments were without merit and that the prosecution should proceed as they had sufficient evidence to prove their case.

The court found that the applicants' arguments were without merit. It held that a husband and wife can conspire, and that they can conspire with a company of which they are both principals. The court reasoned that the principle of conspiracy requires an agreement between two or more persons to achieve an unlawful or lawful objective, and that this principle is not affected by the relationship between the conspirators. The court also found that the applicants' argument that the company could not conspire with them was misplaced, as the company and its directors are separate legal entities. The court dismissed the application for a stay of proceedings, and the matter proceeded to trial.

No further orders were made by the court.

Orders