Rancic v The Queen; Papp v The Queen

[1993] HCATrans 154

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml of 1993

B e t w e e n -

PAUL RANCIC

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No M49 of 1993

B e t w e e n -

GEORGE PAPP

Rancic	1	17/6/93
MASON CJ DEANE J GAUDRON J

Applicant

and

THE QUEEN

Respondent

Applications for special leave

to appeal

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 17 JUNE 1993, AT 10.03 AM

Copyright in the High Court of Australia

MR D.J. ROSS, QC:  May it please the Court, I appear with my

learned friend, MR P.G. PRIEST, for the applicant,

Rancic. (instructed by Paul Ferraro Pty)

MR O.P. HOLDENSON:  May it please the Court, I appear on

behalf of the applicant, Mr Papp.	(instructed by
P.W. Dwyer)

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with

my learned friend, MR R. VAN DEWIEL, for the Crown

in both applications. (instructed by the Solicitor

for the Director of Public Prosecutions)

MASON CJ: Yes, Mr Ross.

MR ROSS: If the Court pleases, I wonder if I can start off

by handing up a few documents. First of all there
are a number of authorities to which at least

passing reference might be made.

MASON CJ: It is a special leave application?

MR ROSS: Yes, that is right, Your Honour.

The second thing is this, that during the

course of the. argument in the Court of Criminal
Appeal, a document was prepared that set out the

various banks that were taken down and an abstract

was made of the dates, who the solicitors involved
were, and it might assist the appreciation of the

case. I hand that up, Your Honour.

If the Court pleases, the Crown case against

Mr Rancic was that various banks were defrauded and

in each completed case the bank actually paid over

the money. It did so on the security of stolen

titles and so it was that the substantive offences

were completed. In three cases where banks paid

Rancic 2 17/6/93

over money, the bank involved was the

Commonwealth Bank. There is no doubt that for the

purpose of the Commonwealth Crimes Act that the

Commonwealth Bank was a public authority under the

Commonwealth and there is likewise no doubt that if

substantive offences had been laid the fraud on the

Commonwealth Bank would have to be laid under the
Commonwealth Crimes Act. There is a variety of

offences that could have been charged, from

stealing through to fraud. There is quite a wide

choice. But, instead of that the Crown decided to

charge a common law conspiracy and they relied, not

on the completed substantive offences, but what

they proposed was a scheme for defrauding the

banks.

The charge was laid at common law and we say

that if the charge of conspiracy were to be

proceeded with, so far as the Commonwealth Bank

goes, it ought to have been laid under the

Commonwealth Crimes Act conspiracy section, which

was section 86A, because we say that section 86A

covers the field, first, because it says it does

and, secondly, because it has different penalties

from the penalties that apply at common law.	So we
say, if there were a conspiracy to defraud the

Commonwealth Bank, it ought to have been laid, or would have to have been laid under Commonwealth

law.

We say that there are questions of importance involved here, because one of the issues that is

raised is this: can a Commonwealth substantive

charge be avoided simply by the presentation of

conspiracy? Secondly, can a Commonwealth
conspiracy charge, that is, a conspiracy charge

under the Commonwealth Crimes Act, be avoided by

saying that the conspiracy to defraud the

Commonwealth Bank was not a conspiracy but a

subconspiracy? ·

We say further, that the Court of Criminal

Appeal in Victoria in deciding this issue was wrong

in so far as it relied on Coughlan and Young. Our

complaint about Coughlan and Young is this, that

first of all that was a case that was not

particularly involved with conspiracy or

subconspiracy. It was a case that involved the

question of autrefois convict and the second thing

is this, that it was not decided in Australia, it

was decided in England and, therefore, it was not

decided in a country which has a federal system, a

Commonwealth Crimes Act and a State Crimes Act or a common law rule.

GAUDRON J: But does not your argument fail to take account

of the essence of the conspiracy, namely the

Rancic 17/6/93

agreement that is charged? The agreement is one

that is any bank that happens to be available?

MR ROSS:  What we say about that, Your Honour, is that

allegations do not change facts. The facts were

that the substantive offences were completed.

GAUDRON J: But the substantive offences were not charged.

They may yet be charged.

MR ROSS: That is right.

GAUDRON J: There may be arguments about autrefois convict,

but they were not charged.

MR ROSS:  The substantive offences were not charged,

Your Honour, but - - -

GAUDRON J: And so far as the Commonwealth Bank was

concerned, it was merely an item of evidence.

MR ROSS:  That might have been so, but what the Court of

Criminal Appeal said was that that was the only

proposition that was open. If you have a look at

the abstract that we have prepared, what we say is

that you find from that that the Commonwealth Bank

was the second in time, or seventh in time, and I think tenth in time, or thereabouts, and it would

be just as open to say, if you are going to
postulate some general theory, "We are going to

have a conspiracy to defraud the Commonwealth Bank,
and we will have a few pipe openers on other banks

and seeing that we have got the hang of this we

will run on some other banks as well".

Now, what we say about it is that if you want

to put conspiracy theories, it is certainly open to

you, but you cannot say, "Because we have

determined a conspiracy theory that fits some

facts, that first of all it is the only one that is

open and therefore it has to be right.", so - - -

GAUDRON J: That, in essence, is a jury question, is it, it

is not a proposition at law, is it, Mr Ross?

MR ROSS:  I do not know that it was left as a jury question,

Your Honour, there was not the choice between the

substantive charge and the conspiracy charge.

GAUDRON J: No, but it was open - well, I dare say there

were submissions about the conspiracy alleged and

my recollection of reading the directions is that

the jury was directed that they had to find the
conspiracy as charged and not some different

conspiracy.

Rancic 4 17/6/93

MR ROSS:  Yes. Well, I am not going to argue that,

Your Honour, because that is not part of our

application. It does become relevant, however,

when we have a look at the question of exhibit 86E
which was, in effect, the next ground, and I would

move to that now, partly to answer Your Honour

Justice Gaudron's question.

I wonder if I can hand copies of this exhibit

up to Your Honours, because this exhibit assumed a

special importance.

MASON CJ: What precise submission are you making about this

exhibit?

MR ROSS:  The precise submission has two forms, Your Honour.

First of all, there was unfairness in the way that

the trial was run which was not repaired by the

Court of Criminal Appeal and there was a consequent

miscarriage. Secondly, what the Court of Criminal inference that could be drawn from the contents of

this document is the only one that would show that

a conspiracy exists.

If I can take the second point first, Your Honour. It was this. At the end of the Crown case

a no-case submission was made. The defence said,

"The Crown has not showed conspiracy". That is,

they have not showed that anyone else acted with Mr

Rancic. There was an elaborate scheme that they

pointed to, but they could not show that anyone

else was involved. His Honour rejected the no-case

submission and he said "There is an inference that

can be drawn, but I am not going to tell you what

it is". Just before final addresses were to begin,

the learned trial judge said, "Now, what I did not

tell you was this, if you have a look at this

application for employment form, you will find that

there is no reference made to any conveyancing or

banking experience". That is not withstanding the

fact that it was a year and a half or more before

these offences were supposed to have started. He

said, "One can conclude from that that at the time when the offences started that Rancic did not have

any banking or conveyancing experience, therefore

he could not have acted on his own". That went to

the jury. That was apparently embraced by the

prosecutor and it was charged on by the learned

trial judge, and that went to the jury as being the

evidence that showed that Rancic did not act on his

own. That is, that there must have been some other

person who was acting with him, therefore it must

have been a conspiracy.

MASON CJ: What is wrong with that inference?

Rancic 5 17/6/93

MR ROSS:  We say it is not fair because it is not the only

inference that can be drawn. It was a year and a

half after the employment application form was

filled in. That is the first point. I am not

saying, and I am not putting to the Court that
there are not circumstances where just from the

very nature of things, a person for instance, a

young person who walks into Myers with a bomb

ticking under his jacket and it turns out to be

some advanced explosive of which he could have no

knowledge and could not have obtained unless he had

been working with someone else. We say that is not

the case here, it could not be the case here in the

circumstances.

We say there is a special reason why this

caused unfairness in the trial in a way that was

not addressed by the Court of Criminal Appeal to

have the case changed against the accused at such a

late stage. There are certainly cases - - -

GAUDRON J: It was not a change in the case as such, was it?

It was the pointing to an item of evidence having a significance that had not been previously attached

to it by defence lawyers.

MR ROSS:  Not only that, Your Honour. It was introduced as

a standard of handwriting, and that alone - - -

GAUDRON J: There was not any change in the nature of the

case or

MR ROSS:	No, it was not any change, but it was - - -
GAUDRON J:	- - -or in the nature of the conspiracy alleged?

MASON CJ: Not by reason of that particular document and the

inference drawn from it.

MR ROSS:  I think not, Your Honour. However, the position

was this, that we say that the no-case submission

must have succeeded had it not been for this

document and it was rejected for a reason that the

learned trial judge declined to give.

GAUDRON J: But there was ample evidence of a scheme, and

the scheme was of such a nature that it was an

inference available from all the evidence anyway

that there was more than one participant in it.

MR ROSS:  May have been.

GAUDRON J: Yes, that there may have been. But that was

open to the jury to decide whether or not there

was.

MR ROSS: Yes.

Rancic 6 17/6/93

GAUDRON J: Quite apart from the letter or the handwriting

standard. You cannot really say that the no-case

submission must have succeeded.

MR ROSS:  No, I do not say that, Your Honour, because one of

the things that I suppose that you have to face up

to his this, that the Crown had available to it a

vast amount of evidence showing the setting up of

premises and hiring couriers and getting telephone

answering machines and post office boxes and so on,

and it did not seem to be clear whether it was, on

vast number of things done. Therefore they say,

the Crown case, whether this was Rancic or not

"Can we draw the inference that it was Rancic

acting alone, or not Rancic acting alone?"

One thing that militated against the operation of someone else was that they introduced

fingerprint evidence in one of the business

premises. That is, fingerprint evidence that

showed that Rancic was there. That tended to

possibly demilitate against the idea that there was

some other person involved. In any event, they

were seeking to draw from the fact that there was a

very careful arrangement made that it was more

likely than not that there some other person was

involved.	We say that the criminal standard is
generally a little bit higher than that.	It was
not a necessary inference that had to be drawn.	I

would expect that the Crown would say that it could

get no higher than more likely than not.

When you get to that position, and you add to

that what we say a piece of evidence that is

introduced for one reason, and then we say, used
for another reason, we say that in the

circumstances, that sort of unfairness has been

precisely the thing that this Court has found fault

with.

MASON CJ: You had the opportunity of applying to reopen and

you did not do so.

MR ROSS:  The Court of Criminal Appeal answered that by

saying, Your Honour, that we did not apply to

reopen and that is true, but they acknowledged the

fact that the circumstances were such that it did

not seem appropriate in the way in which the trial

judge delivered his reasons and the atmosphere of

it so far as they could recreate it. That was how

the Court of Criminal Appeal assessed it and we
accept that.

We say about that that there is a form of procedural unfairness or, at the very least, it is

the Crown or the judge putting a case differently

Rancic 7 17/6/93

from the way in which it was opened and maintained

throughout. There is another - - -

DEANE J:  Mr Ross, where in the charge are His Honour's

comments in relation to document 86E or whatever it

is?

MR ROSS:  Your Honour, my note is here that the references

in the Court of Criminal Appeal are at 69 and 70,

and 73 to 75. I will take the Court to those.

Can I take Your Honours to line 30 of page 69.

It is there they start dealing with the application

form. The other document, this is on the basis of

handwriting:

was a completed application form for

employment with the applicant's employer,

(Honda) together with attachments. This was

exhibit 86E and was produced by an employee of

Honda. These documents are called

"standards".

Then at page 73 at line 29 they put it this

way:

The argument was that exhibit 86E having been

admitted as a standard the Crown was limited

in its use of the document to that purpose.

The judge, however, indicated that in the

course of his charge he would (and in fact he
did) make the comment that the application by
Rancic for employment with Honda disclosed

that Rancic's past vocational history was such

as to have made it impossible for him to

possess the conveyancing, banking and business

knowledge that the jury might have thought was

necessary to plan and put into operation the

fraudulent scheme which was in fact

perpetrated. Accordingly, the jury was

invited to infer that there must have been

conspirators with Rancic. The judge appears from his remarks during a no-case submission

at the close of the Crown case to have thought

that without such evidence there was no

material upon which a finding of a conspiracy

as alleged by the Crown could be made. The

applicant's present complaints are that such a

comment (which the prosecutor enthusiastically

adopted in his closing address) amounted to a

misuse of the document and that an injustice

was caused the applicant by the judge's

refusal to disclose the nature of the comment

he proposed to make until after each applicant

had given his unsworn evidence thus depriving

them of an opportunity to deal in their

another or others who was or were co-

Rancic 8 17/6/93

evidence with the comment. We think that

realistically it could not be thought that

His Honour's comment was of such a nature as

to invite the presentation of evidence in

order to deal with the effect of the comment.

In any event, no application was made by the

applicant to re-open his case in order to deal

with the question raised by His Honour's

remarks.

DEANE J:  Was it part of your client's defence that there

was nothing to suggest that he had not done it all

himself?

MR ROSS:  No, what he said, he was not involved in any of

this at all.

DEANE J:  I follow that, but we are dealing with your client

now. You are objecting to a direction that says,

"This could not have possibly been only your

client?"

MR ROSS:	Yes.
DEANE J:	I would have thought, in the context of your

client's defence, that was a helpful direction,

because he is saying he was not involved at all,

and the judge is saying, "Well it certainly was not

he alone".

MR ROSS:  That is right. I should say it was made a little

bit more complicated by the next ground that we

raise, Your Honour, and with your permission I will

just refer to it briefly.

He was charged along with a man, Papp. Papp

said during his unsworn statement that there was at

least one other person involved, a fellow called

Czarnecki, and I am told that there was some

reference to another man as well.

We are going to have a further complaint about His Honour's charge because we say that His Honour

did not say that the unsworn evidence of one

accused could not be used for or against another.

That being so, there is a special difficulty that

arises that Papp says, "Look, I was involved with a

man called Czarnecki", and I will leave aside what

Papp said about his own, that is Papp's

involvement, "But Czarnecki had recruited me" or

"Czarnecki was involved with me" Rancic said, "I

was not involved in any of this at all". The Crown

case was, "Rancic was involved because there was

fingerprint evidence and some identification

evidence and not only that, he was involved with

someone else". The learned trial judge did not say

Rancic 9 17/6/93

that what Rancic had to say was neither

supported - - -

GAUDRON J:  He did however leave the cases to the jury in

two distinct bodies of evidence, did he not? He

did say that he would deal first with the evidence

against your client and then with the evidence

against Mr Papp, and did, in fact, do that.

MR ROSS: Yes, he did.

GAUDRON J:  He did not, in the course of it, suggest that

the unsworn evidence of Mr Papp could be used

against your client?

MR ROSS:  No, no suggestion of that, Your Honour, but we say

the special difficulty, when you add these things

up together, is that it called out for such a

direction. I should say that fairly - - -

MASON CJ: Did you ask for such a direction?

MR ROSS:  We did in rather ambiguous terms I am told,

Your Honour. I think we asked for such a direction

and His Honour said, "Well I do not think it is

appropriate" and I think we probably said we agreed

with His Honour.

MASON CJ: It looks as if you did not ask for a direction.

MR ROSS:  Something of that sort. So I think we asked for

it and then tried to be very polite.

No, it is not suggested, Your Honour

Justice Gaudron, that His Honour wrongly said that

the unsworn evidence of one could be used for or

against another.

GAUDRON J: Your task is really to show that the cases have

not been left quite separately, there was some

possibility that the jury might have used the

evidence such that it was necessary to give the

direction. But that is your task.

MR ROSS: Yes, it is a task that I am prepared to embrace

too, Your Honour, because as you would know, when
the presentment was first made in the county court,

it was drafted in such a way that suggested that

Rancic and Papp had acted together and there was an

amendment to show that that did not occur.

However, what appears from the Court of Criminal

Appeal is that the trial judge seemed to leave it open that one of the divers persons to the director

unknown, with whom either Rancic conspired, or Papp

conspired, was that other co-accused.

Rancic 10 17/6/93

You see, one of the troubles about it was

this, that His Honour further said to the jury,

"You can take into account the acts and

declarations of the co-conspirators". Now, of

course, what we say about it, I suppose with the

benefit of looking back on it and looking down it,

we can say, "Well, really, what His Honour should

have done is said the Crown case is that these

events occurred and the Crown says that it is

unlikely that Rancic could have acted on his own.

That, you might think, could be fortified by the

fact that Rancic's employment application does not

show that he had a conveyancing or business or

banking background, and so far as that went,

otherwise to leave it alone".

What he did was, the learned trial judge said,

"You can take into account the acts and

declarations of the co-conspirators", and he went

no further than that. He said nothing more. We

say that that is really not dissimilar from the

position that obtains where the law is in a certain

State - where the corroboration direction, for

instance, is no longer necessary, but a judge says,
"In the circumstances of this case, I think I

should give the direction on corroboration". It is

established law now that if he chooses to give it,

he has to get it right. He has to give the

direction correctly and he has to identify the jury

correctly those items that are correctly

corroborative, or capable of corroboration.

We say, that in this case, His Honour did not get the direction right. It was probably

unnecessary for him to direct them at all in this

regard because it was just going to be a series of

inferences that was open that Rancic was not acting

alone.

What we say about all of this is, this is

rather like the Shakespearian description that

proceed with the substantive charge, that they will

things bad become make strong themselves by ill.

proceed with the common law charge and not a

Commonwealth Crimes Act charge, they postulate

that, "While substantive offences have been

committed, we will not charge those substantive

offences, we will charge conspiracy".

So they decide to construct a scheme of what

they say is wrongdoing, and it might be the scheme

and it might not be the scheme. Who is to tell?

There might not be a co-conspirator and there might

be. One would have thought that ordinary

experience in the administration of the criminal

law shows something fairly clearly, that if you are

Rancic 11 17/6/93

going to charge conspiracy, one thing that is

tolerably clear is this, that even though you do

not know who the co-conspirators are, you know that co-conspirators do exist. But, one of the troubles

that we say that bedevilled this case from

Mr Rancic's point of view, was that even that could

not be established with any certainty. That had to

be inferred.

So if the Court pleases, we rely on those

matters.

MASON CJ: Thank you Mr Ross. Mr Holdenson.

MR HOLDENSON: If the Court pleases. At the outset I might

just indicate that that which has fallen from my

learned friend, Mr Ross, is of course relied upon

in so far as it concerns the application of Mr Papp

which is only in so far as my learned friend's

draft ground A was concerned.

MASON CJ: Yes.

MR HOLDENSON:	The exhibit and the unsworn evidence - - -
MASON CJ:	You are not concerned with the other grounds?

MR HOLDENSON:  They do not relate to my client, no. Apart

from adopting that which fell from my learned

friend, there are some further submissions and very

brief submissions to be put.

MASON CJ: That you want to make on that point.

MR HOLDENSON:  Yes, Your Honour, and in that regard reliance

is placed upon the outline which was provided to

the Court a little earlier today and I am in a

position to read that outline to the Court or have

the Court - I am in Your Honour's hands.

MASON CJ:  We can read it. I had a brief glance at it,

Mr Holdenson, but I shall read it more closely now.

MR HOLDENSON: If Your Honour pleases.

MASON CJ:  Why does section 86A have any impact on a

conspiracy to defraud banks generally?

MR HOLDENSON: Well, it is submitted, Your Honour, that the

nature of the conspiracy charged in this case or

more particularly the appropriate characterization

of the conspiracy was a conspiracy to defraud

banks, or banking establishments, where such

banking establishments included the Commonwealth

Bank, and it is submitted that - and it was

submitted in the court below - that in such

circumstances where the Commonwealth Bank be one of

Rancic 12 17/6/93

the proposed victims, then the only source of

criminal liability in so far as a conspiracy charge

was concerned was to be found in the Commonwealth

Crimes Act.

In other words, it was submitted that the

effect of the enactment of that particular

provision was such as to constitute the only source

of criminal liability for conspiracy to defraud

Commonwealth banks. Whether or not there be other

banks included in the proposed - in that which was

the subject of the agreement - - -

GAUDRON J:  So it would follow on your argument that if it

was to defraud the Commonwealth Bank and some

others there would be no charge at all that could

be laid?

MR HOLDENSON: That may well be - - -

GAUDRON J: And equally it would follow, would it not, that

if your clients had been charged with two

conspiracies - one to defraud the Commonwealth

Bank, the other to defraud other banks - it would have been open to the defence to say, "But you must

acquit because in truth there was only one

conspiracy" .

MR HOLDENSON:  That is the effect of the argument and it is

something that has crossed everybody's mind before

and that is just bad luck. Now, that was in effect

the subject of reference in the case referred to by

my learned friends in their outline, Reg v

Loewenthal; ex parte Blacklock where, as I recall,

His Honour Mr Justice Menzies described the nature

of the argument as nothing other than a jaunt for

lawyers at the public expense or whatever it be. That may well be right because in that case

the defendant in the court at first instance was

charged with the offence of throwing a brick

through a window contrary to the Queensland

Criminal Code it just so happened that the window

was Commonwealth property and it was said that he

should have been charged with an offence contrary

to the Commonwealth Crimes Act - wilful destruction

of Commonwealth property - and the court upheld

that argument.

Now, that is just one of the problems, if that

is the appropriate characterization of the federal

system, and that is really, in my submission, why

it is appropriate that this case be the subject of

a grant of special leave for that very reason.

Now, if I could just clarify that.

Paragraph 3 of the outline refers to what really

Rancic 13 17/6/93

happened in this case, namely there was one

conspiracy. It resulted in, on one view, the

commission of a number of substantive offences

where those substantive offences were crimes of or

acts of defrauding the Commonwealth Bank, and it is

submitted that it cannot be said that the

Commonwealth Bank was thereby not contemplated by

the conspirators and that the court below erred in

what they found and that is set out at page 33 of

the application book.

Now, that is the subject of - and that

characterization at the head of page 2 of the
outline is the precise words used by the court at

page 33 of the application book of Mr Papp - but if

I could take the Court to the next page, it is

submitted that what is set out on the next page is

an erroneous view of the facts. If I could take

the Court to page 34 of the application book,

line 15, the court states:

The conspiracy established by the evidence

appears to us to be one in which the

conspirators agreed to set up a complicated

and elaborate scheme for the purpose of

defrauding banks by -

doing certain things.	Then if I could move on to
line 23:

The very strong probability -

Now, I am not sure if that is the same as saying it

was demonstrated beyond reasonable doubt or it is

apparent beyond reasonable doubt, but the court

states:

The very strong probability is that it was

only much later, after the setting up of the

elaborate scenario, with bank accounts

and •.... that the minds of the conspirators (or

some of them, or one or more of them with new

parties altogether) decided separately and

successively upon the identity of a victim.

Now, it is submitted that in the light of the

commission of a number of substantive offences of
fraud on the Commonwealth Bank, the court simply

could not reach that view of the facts that there existed a prior - or contemporaneous in this case

because the agreement or conspiracy was, of course,

an ongoing one - a contemporaneous agreement to
engage in such conduct where the agreement or its

content did not descend to some particularity as to

the identity of the proposed victims, particularly
in the light of the finding of fact earlier on in

the judgment as to the sophistication of the

Rancic 14 17/6/93

scheme. In other words, the court made a finding

that the scheme was quite sophisticated and that is

set out at page 17 of the application book at

line 21:

Preparations to carry out this fraudulent

scheme were both ingenious and elaborate.

And then there is some explanation as to how the

court reached that view.

Now, as to why it is submitted on behalf of the applicant, Mr Papp, that it is appropriate that

this Court ought grant special leave, it is

submitted that there really are quite a number of

matters which arise for consideration for this

Court based on this case. Firstly, how it is that

an agreement is characterized; how it is from a

series of overt acts that a jury is to draw an

inference as to the content of an agreement.

In the light of what the court below said at

the head of page 35 where at line 4 the court

stated:

True it is that there must have been a new agreement, or "sub-conspiracy", each time a

victim was selected -

The question arises as to how it is that an

agreement for the purposes of the criminal law of
conspiracy is varied or a new agreement is reached

or the effect of the coming into existence of a

subsequent or a consequential or a subconspiracy.

In other words, whether or not those things have an

effect upon the original agreement which it is

alleged was reached.

Another point is, it is submitted, that what would be the case if the evidence was somewhat weak

in so far as the banks other than the Commonwealth

Bank were concerned - in other words, in this case

there are, I think, 13 banks which were the subject

of some criminal conduct which was alleged related

to this particular case - if the evidence had been

very weak in so far as all banks other than the

Commonwealth Bank is concerned. That gives rise,

it is submitted, to issues of duplicity, how it is

that it is determined that a conspiracy charge may

well contain within it two agreements or issues of

uncertainty -

DEANE J: But must you not always come back to your starting

point of covering the field. Now, can I take you

to section 86A, which is set out on page 50 of the

application book - - -

Rancic 15 17/6/93

MR HOLDENSON:	Yes, Your Honour.
DEANE J:	Now, obviously your argument is a very strong one

if the charge had been conspiring to defraud the

Commonwealth Bank.

MR HOLDENSON:  Yes.

DEANE J: But what if the charge had been conspiring to

defraud the Commonwealth Bank and in the process to

murder whatever people might be in the bank at the

time of the defrauding. The question then is:

does section 86A which deals with a very precise

conspiracy mean to cover the field in relation to

larger conspiracies which involve defrauding the

Commonwealth as one of the elements?

Now, would your answer be, in that case,

because the Commonwealth has a special provision

dealing with a particular conspiracy to defraud the

Commonwealth, the States have lost jurisdiction to

deal with conspiracy to murder because it includes

as one feature the defrauding of the Commonwealth?

MR HOLDENSON:  The question, in my submission, is really the

same. In any conspiracy where it is alleged that

there is a bank to be defrauded and in the process,

if necessary, someone to be murdered because the

elements of the common law offence of conspiracy to
defraud, also known as conspiracy to cheat and
defraud, in my submission are identical to the
elements of that offence created by section 86A
save and except that the victim of the defrauding
in the Crimes Act offence must be a Commonwealth

Bank in the scenario put, and so the question

really goes back to: how is it that one

characterizes an agreement, the subject of a

conspiracy charge?

At common law the same question would arise:

That really goes to the manner in which prosecutors	how is it that one would prosecute such an offence?	are to draw presentments because if my learned
friend, the Director, were to draw a presentment of
conspiracy to defraud at common law, for example the ANZ Bank, and conspiracy to murder, then the
same defence referred to by the Chief Justice a
little earlier today would apply. There were not two separate agreements, there was one.

The effect of that is, some people would say,

"Well, that just can't be right, criminals will

walk the streets free by reaching conspiracies in

such a way as to render themselves unchargeable",

and then the question arises as to whether or not

something like Gilson applies.

Rancic 16 17/6/93

DEANE J: But are you not, as it were, skipping over the

real question and that is: what was the legislative

intent to be discerned in section 86A?

MR HOLDENSON: Well, that is the question and, in my

submission, the answer to that question is that the

legislature - and that provision was inserted as

long ago as 1915 - determined that in so far as the

protection of Commonwealth property was concerned,

to use the language of His Honour

Mr Justice Menzies in Loewenthal's case, that was

to be the sole source of criminal liability when
the subject of a conspiracy charge.

DEANE J: Yes, I follow the way you put the answer.

MR HOLDENSON:  That is the way the argument has to be put

and I think it is characterized in slightly

different words or paraphrased in paragraph 6.1 of

the outline.

Now, perhaps the final special leave point, in

my submission, goes to that to which I made

reference a few moments ago. The drawing of

presentments, as they are known in this

jurisdiction, or indictments in other

jurisdictions, and the ability or the discretion or

the leeway or the licence that a drafter of

presentments has in order to characterize a course

of conduct to fit within the elements of the

offence.

It may well be - and this is the consequence

of my submissions - that if the original agreement

reached in this case was to defraud all banks that

exist in Melbourne - including the Commonwealth

Bank which is a pretty obvious bank to everybody,

just like Holden cars are pretty obviously

Australian cars - then a person who engages in such

conduct, and in this case not only was the

agreement reached but an entire course of conduct

engaged in, is unchargeable and that, in my

submission, is a special leave point.

Unless the Court has any queries or concerns,

I otherwise adopt that which has fallen from my

learned friend, if Your Honours please.

MASON CJ:  Thank you, Mr Holdenson. The Court need not

trouble you, Mr Bongiorno.

The arguments presented on behalf of the

applicants do not lead us to conclude that there is
any reason to doubt the correctness of the actual

decision of the Court of Criminal Appeal.

Rancic 17 17/6/93

The applications for special leave are

therefore dismissed.

AT 10.52 AM THE MATTER WAS ADJOURNED SINE DIE.

Rancic 18 17/6/93