Reg v Barbouttis- v Dale- v Single

[1996] HCATrans 82

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S132 of 1995

B e t w e e n -

THE QUEEN

Applicant

and

GEORGE MARK BARBOUTTIS

Respondent

Office of the Registry
  Sydney  No S133 of 1995

B e t w e e n -

THE QUEEN

Applicant

and

RODNEY HAROLD DALE

Respondent

Office of the Registry
  Sydney  No S134 of 1995

B e t w e e n -

THE QUEEN

Applicant

and

STEPHEN FRANCIS SINGLE

Applications for special leave to appeal

DAWSON J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 1996, AT 10.22 AM

Copyright in the High Court of Australia

______________________

MR K. MASON, QC, Solicitor‑General for the State of New South Wales:   Your Honours, in each of these matters, I appear with my learned friend, MR P.G. BERMAN, for the applicant.  (instructed by S.E. O’Connor, Solicitor for Public Prosecution)

MR P. BYRNE, SC:   If it please the Court, in each of the matters I appear for the respondent.  (instructed by William O’Brien & Co)

DAWSON J:   Yes, Mr Byrne.  There is no objection to these matters being heard together, is there?

MR BYRNE:   No, your Honour.

DAWSON J:   Very well.  Yes, Mr Solicitor.

MR MASON:   Your Honours, it is submitted that these matters raise, in quite a stark way, a question of general legal principle, mainly the question of whether a crime of conspiracy can encompass an agreement to do that which is physically or factually impossible.

GAUDRON J:   Do they?  In this sense, does it not depend what the agreement is?

MR MASON:   Well, the case proceeded here, and this was the matter upon which the majority, as it were, impaled the Crown in the Court of Appeal, on the basis that the agreement was specific to the purchase of the visible truck, and ‑ ‑ ‑

GAUDRON J:   We have to know ‑ unless we know what precisely was the conspiracy alleged, you are asking us to operate in a vacuum.

MR MASON:   No, we have the particulars ‑ you have the particulars and ‑ ‑ ‑

DAWSON J:   And it really depends upon the relationship of particular 3 of the overt acts and the following paragraphs, does it not?

MR MASON:   Yes, the particulars, if one looks at the opening part of the particulars, page 1 line 30, really introduced the cigarettes without any time relationship to the formation of the conspiracy.  The early particulars speak in general terms about an agreement, involving two of the respondents, to purchase cigarettes which were stolen, but not identifying any particular cigarettes, and then ‑ ‑ ‑

GAUDRON J:   But, do you have evidence of that agreement, or do your overt acts go to the agreement to purchase particular cigarettes?

MR MASON:   These are all, as it were, self‑standing overt acts which, if proved, will be urged as supporting the conspiracy alleged.

DAWSON J:   There are two alternatives, are there not, Mr Solicitor?  On the one hand, there was an agreement to purchase stolen goods, and the cigarettes on the truck were offered in satisfaction of that agreement.

MR MASON:   In order to get evidence, as it were, to convict on the prior conspiracy, yes.

DAWSON J:   On the other hand, there was an agreement to purchase cigarettes cheaply, and the agreement was to purchase the very cigarettes which were on the truck.

MR MASON:   Believing them to be stolen.  The conspirators believing ‑ ‑ ‑

DAWSON J:   Well, I think, yes, but ‑ ‑ ‑

MR MASON:   Yes, the Crown will have to prove that.

GAUDRON J:   Which do you say it was?

MR MASON:   I am bound by the way the matter proceeded in the Court of Criminal Appeal as being in the second category.  The court noted that that was the way in which the matter had been put to it and determined the matter on that basis.

GAUDRON J:   So it was an agreement to purchase specific cigarettes, being the cigarettes on the truck.

MR MASON:   Yes, and one reason for that ‑ ‑ ‑

DAWSON J:   But was that in satisfaction of a prior agreement, as it were, to purchase stolen goods?

MR MASON:   Well, certainly as between two of the respondents; the third respondent, Mr Barbouttis, on the evidence in the over acts, came in at a later stage, and by the time he joined either the conspiracy, or a separate conspiracy, it was the narrower one upon which the Crown proceeded in the Court of Criminal Appeal.

GAUDRON J:   Were they charged that they did conspire together, because the indictments ‑ because if so, we have to proceed on the basis that you are talking about the narrower conspiracy in the indictment?

MR MASON:   Yes, they were thus charged, and had they not been, there may well have been some Gerakiteys type argument. 

GAUDRON J:   Yes.  You have got to focus on the narrow conspiracy.

MR MASON:   Yes I do.

DAWSON J:   How would you distinguish Nock’s Case?

MR MASON:   I do not seek to distinguish Nock’s Case.  I seek to argue that Nock’s Case should not be followed in Australia, and it has not hitherto been applied by any court.  It is referred to in Kingswell’s Case obiter in the New South Wales Court of Criminal Appeal.  I accept that text writers have regarded it as stating the common law.

DAWSON J:   You could distinguish it though, could you not?

MR MASON:   One could, yes.

DAWSON J:   Because there the agreement related to a particular substance which could not produce the drug which they thought it could produce and, on the narrow view of the agreement, which was the view taken in the House of Lords, there could not be any attempt ‑ ‑ ‑

MR MASON:   Nock was a conspiracy case ‑ ‑ ‑

DAWSON J:   Conspiracy case.

MR MASON:   Yes.

DAWSON J:   But here they may have been an agreement to purchase those particular cigarettes, but that was merely the implementation of an agreement to purchase stolen goods.

MR MASON:   I accept that that is a charge which could have been brought and could be brought if the Court of Criminal Appeal ‑ ‑ ‑

DAWSON J:   I do not see that it could arise even on the particulars here.

MR MASON:   Well, I, with respect, entirely agree, but I read as to the way the matter proceeded in the Court of Criminal Appeal ‑ ‑ ‑

GUMMOW J:   What do you say about the way Mr Justice Dunford put it at page 64, line 25 going over to 65?

MR MASON:   As I read all of the judgments, and I have had a quick look at the transcript, that was the way the matter proceeded in the Court of Criminal Appeal, and that is the way Chief Justice Gleeson treated the matter, as having been narrowed.  That really only creates the issue, it does not, in my submission ‑ ‑ ‑

GAUDRON J:   Your issue is that it is contrary to what we have always thought, that it is an offence to agree to do something that is illegal.  It is now an offence to do something that you believe is illegal.

MR MASON:   If you agree to do that which, if carried out according to your agreement, it would have been in your own mind illegal, yes.

GAUDRON J:   Yes, a conspiracy to do what you believe is illegal.

MR MASON:   Yes, and it is no different to a conspiracy to receive a drug from an undercover policeman, where the undercover policeman has no intention of supplying the drug to the person or to the conspirators.

MR MASON:   Well, there may be a difference about that, because ‑ ‑ ‑

DAWSON J:   Well, certainly the way in which the police operate indicates they perceive a difference.  They never hand over icing sugar; they have over icing sugar, plus a little bit of drug.

MR MASON:   Yes, that is so, but there may be situations where the undercover operative does not proceed to a hand-over situation.  There may just be the conversations.

DAWSON J:   It still throws up the same problem.  But Mr Solicitor, no one would question that this is a matter of importance.  There seems to be some difference in the authorities and it is something which is likely to occur in a number of cases, but, does this case throw up the problem in such a way that this Court could deal with it?

MR MASON:   Yes, because, had the matters proceeded on what, on one view, was the broader reading of the indictment, there would not have been a problem.  But, on the narrower reading, upon which it did proceed, just really creates the occasion for the issue.  But it is a real and recurring issue.  It is an issue in principle upon which, on one view at least, Nock’s Case stands as the only authority, but Nock’s Case is one which has been shaken to its core in a number of respects.  Its essential reason has been rejected by the House of Lords itself in later attempt cases ‑ ‑ ‑

GAUDRON J:   Nock’s Case is dealing with a particular aspect of impossibility.  There is no impossibility in defence of agreement to purchase stolen cigarettes.  It is a question of what the agreement is; whether it is, in fact, that.  Nor is there any impossibility, in the real sense, in an agreement to obtain possession of an illegal drug.  They are all totally possible things which are, in themselves, illegal.

MR MASON:   If you put it back to a level of general abstraction, that is so.

GAUDRON J:   But, taking it back to that level of abstraction, there is no problem of impossibility at all.

MR MASON:   Yes, I agree with that.  And then the later events are just used as evidence to entrap and prove the earlier more general offence.  But there are situations, this being one, where one can say, at the time of the agreement ‑ ‑ ‑

GAUDRON J:   They believed ‑ that is all you can say, they believed”.

MR MASON:   No, they did not just believe; they agreed.  They went beyond belief.

GAUDRON J:   They agreed to buy cigarettes which they believed were stolen.

MR MASON:   Yes, and the cigarettes were not stolen.  I am repeating myself.  I say that just creates the problem.  It does not provide the answer.

DAWSON J:   In ordinary parlance, they agreed to buy stolen cigarettes, which turned out not to be stolen.

MR MASON:   Yes.  And it is no different in agreeing ‑ ‑ ‑

DAWSON J:   Does it make any difference if you say they agreed to buy no cigarettes, which they believed to be stolen, which turned out not to be stolen.

MR MASON:   I suppose what I am saying is, there is no difference in principle between the two situations and the principle that leads to there being no difficulty in convicting on the first, should lead to the same result in the second.

DAWSON J:   But, anyway, you say that the particulars, which is all we have got to go on, throw up the problem.

MR MASON:   They certainly throw up the problem.  It is a general problem.  It really is no different, in my submission, to the agreement to do something which is entirely attainable, but will necessarily be frustrated because the police are involved in the witnessing of the agreement and the police have the capacity, which they exercise, to frustrate its performance.  Nevertheless, the agreement is equally as impossible of performance in that situation as it is in the present in point of principle.

I think I was saying that Nock has been shaken to its core.  I mention the New Zealand Court of Appeal has virtually refused to follow it.  It is inconsistent with the reasoning in the attempt cases, where there is a consistent line of Australian cases saying that one can attempt to do the impossible, and be found guilty.  The American law is to the contrary of Nock.  The submission is put that the conspiracy situation is indeed stronger than the attempt situation.  Initially the House of Lords reasoned from Nock, a conspiracy case, to the attempt cases, saying they were the same.  They later abandoned them in the consent line.

GUMMOW J:   I think we have been through all that tangled shifting and moving in the English courts.

MR MASON:   Yes.  But if one starts with the attempt line of cases as a given, my submission is that conspiracy is stronger situation, rather than just, as the English courts regard it, a similar situation.

DAWSON J:   You would say that Nock’s Case is wrong?

MR MASON:   Yes.

DAWSON J:   That as long as you agree to do something which contains with it the intention of, in this case, acquiring stolen goods, that is sufficient ‑ ‑ ‑

MR MASON:   Be they general or specific, that is sufficient.

DAWSON J:   And in Nock’s Case it was sufficient that they intended to produce a drug and agreed to do so ‑ an illegal drug ‑ and it does not matter that the substance from which they tried to produce it was incapable of  ‑ ‑ ‑

MR MASON:   Would not have manufactured the drug, yes.

DAWSON J:   Well then, that is the problem which is thrown up.

MR MASON:   Yes.  The issue is the important one for the general administration of justice, because of police methods.  Our submission is that one cannot deflect it because of the Ridgeway issue that my friend has raised in his response, for the reasons advanced in our supplementary submission of argument.  The question of a Ridgeway stay was put to one side in the courts below.  It would depend upon evidence, really, as to who lured whom, and whether the police were catching a willing offender, or inducing a person who was not willing to commit the offence, and the evidence is not before the Court to enable that issue to be determined.  In any event, the principles that are referred to in paragraph (c) of our supplementary outline, filed yesterday or the day before, would indicate that a Ridgeway stay would be likely to fail.

Finally, your Honours, the Court is not troubled by the concerns it has in other cases of a Crown appeal against a verdict of acquittal.  This was a quashing of the indictment.  It does not have the same strength as an acquittal.  If, by some other appellate vehicle, the Court entertained the issue, and overturned it, the Crown would be free to present the identical indictment against these respondents, in my submission.  For those reasons, we seek a grant of special leave.

DAWSON J:   Thank you, Mr Solicitor.  Mr Byrne.

MR BYRNE:  May it please your Honours, the question of the scope of the conspiracy is, in my submission, determined contrary to the submissions that my learned friend has put.  There are a number of ‑ ‑ ‑

DAWSON J:   I thought he was prepared to concede your view of it.  Perhaps you had better tell us what your view is.

MR BYRNE:   If I might perhaps refer, with respect, your Honours, to the application book at page 72.  At line 12 it was there said, and this is the Crown’s summary of the facts on which the application was based:

After a series of meetings, and some negotiations as to price, an agreement was entered into to purchase fifty of eighty boxes of cigarettes which were loaded on a truck.  That specific agreement to which the respondents were parties, was alleged by the Crown to constitute the conspiracy. 

There was no more general conspiracy alleged against ‑ ‑ ‑

DAWSON J:   I do not understand.  I suggested to him on the particulars you could spell out a more general conspiracy but he declined to adopt that view and says he is prepared to proceed on that basis but, nevertheless, there was, on that basis, an unlawful conspiracy.

MR BYRNE:   In my submission, the conspiracy in this case cannot be categorised as an unlawful one because essentially what the alleged conspirators agreed to do was not unlawful.  The proposition ‑ ‑ ‑

DAWSON J:   But they believed it to be unlawful and that is what is put against you.  That is sufficient, it is said.

MR BYRNE:   In my submission, it is not sufficient that they believe it to be unlawful.

GUMMOW J:   That is the question.  That is the important question.

MR BYRNE:   Yes.  If that is the case, and the example that is frequently given in the academic writings on this subject:  if two people believe adultery to be unlawful and agree to commit it, then they commit conspiracy.

DAWSON J:   No, no, because what they in fact believed, if it were true, was unlawful.

GAUDRON J:   But it was not.  In Mr Byrne’s case it was not.

MR BYRNE:   In this case it was not unlawful because ‑ ‑ ‑

DAWSON J:   That is right, but in the case of adultery - adultery is still unlawful, is it, no - adultery is not unlawful, so on any view of it, even if they believed that, it was not just a mistaken belief, but it was a belief which could not be true.

MR BYRNE:   In this case the belief was that the goods were stolen but that was not true ‑ ‑ ‑

DAWSON J:   Because of the factual situation, it was an impossibility.

MR BYRNE:   Because of the factual situation, but the analysis that is made of that situation by the majority of the Court of Criminal Appeal is, in my submission, correct in that they conclude - and if I might refer your Honours to what Mr Justice Dunford said at page 65 of the application book.  His Honour there said at line 9, the first full paragraph on the page:

It follows that the conspiracy alleged in this case was not an agreement to do an unlawful act because the act agreed to be done, ie receive the cigarettes, was not an unlawful act;

DAWSON J:   But that is to beg the question:  whether the agreement was to do an unlawful act, that is to receive stolen cigarettes.

MR BYRNE:   But that was not the agreement.  The agreement here was to receive the specific cigarettes in the back of the truck.

DAWSON J:   Believing them to be stolen.

MR BYRNE:   Yes.

DAWSON J:   And it is the belief that may make it sufficient, and that is what is put against you

MR BYRNE:   In my submission the belief is not enough, that where the alleged conspirators agreed to do something which, even though they believe it to be unlawful is not in fact unlawful, then it cannot be a conspiracy.

DAWSON J:   You may be right, Mr Byrne, you may be right, but the Chief Justice took the contrary view and there are cases which take the contrary view.  Nock’s Case you would say is in your favour.

GAUDRON J:   Are there cases which take a contrary view?

MR BYRNE:   Yes, I was going to say I do not know of any cases that take the contrary view.  My friend has not put ‑ ‑ ‑

DAWSON J:   I thought that Nock’s Case had been departed from in a number of decisions.

MR BYRNE:   Not on conspiracy.

DAWSON J:   No, but in relation to attempt, and there is not a distinction to be drawn really, a relevant distinction between attempt and conspiracy in this regard, is there?

MR BYRNE:   There may be.

GAUDRON J:   You say, well, the essence of the offence is the agreement.  You have got to find out what the agreement is.

MR BYRNE:   That is right.

GAUDRON J:   Whereas the attempt is an intention to be inferred from objective acts, in essence.

DAWSON J:   But you can agree to do the impossible, just as you can attempt to do the impossible.

MR BYRNE:   But this was not an agreement to do the impossible; this was an agreement ‑ ‑ ‑

DAWSON J:   It was, in the sense that if it was an agreement to receive stolen goods, the actual goods were not unlawful, so it was impossible to receive them as stolen goods.

MR BYRNE:   What the agreement was was to receive - there was not a general agreement to receive stolen goods.  The agreement was to receive the goods in the back of the truck.

DAWSON J:   We are going over the same ground.  The question is, if I make an agreement believing a particular state of facts to be in existence, then the nature of the agreement is coloured by my belief, and it does not matter that my belief is mistaken.  That is the case that the Solicitor puts and that is the position which, in dissent, the Chief Justice took below, is it not?

MR BYRNE:   Essentially yes.  What has been said in the Crown’s analysis ‑ and if I might take your Honours - perhaps this might illustrate the point again.  It is going back to the discussion we have already had, but the Crown’s analysis of the majority judgment in this case is contained at 73 of the application book and at line 10.  What the Crown has there said is that ‑ this is what their Honours held:

the conspiracy alleged was not an agreement to do an unlawful act because the unlawful act of receiving the specific cigarettes was not capable of being committed.

That is not what they held at all, with respect.  What the court held was that the act which was the subject of the agreement was committed, because it was, they obtained the cigarettes, but that it was not unlawful.  It was not not capable of being committed, it was in fact committed, but it was not unlawful.  And the proposition is put that it cannot be a conspiracy to commit an offence if the object intended does not amount to that offence.  That is the reason why the scope of the alleged conspiracy is so important.  It is not a conspiracy at large; it is a specific conspiracy in relation to nominated items, namely the 50 boxes of cigarettes.  Those goods were in fact obtained but it was not an unlawful act to do so.

DAWSON J:   What if you have two pickpockets - this is Lord Diplock’s example, I think - one to assist and the other to do the actual picking.  Putting his hands into various pockets which in fact contain nothing, why is that not a conspiracy to thieve?

MR BYRNE:   It is.

DAWSON J:   It is impossible to carry it out, there is nothing in the pocket.

GAUDRON J:   And it is also an unlawful act.

MR BYRNE:   It is not impossible to carry it out.

DAWSON J:   But say they are charged with a conspiracy to thieve.

MR BYRNE:   In those circumstances what they are charged with is conspiracy at large, to thieve from people’s pockets, not to thieve ‑ ‑ ‑

DAWSON J:   Make it more specific:  there are three people which pockets they set out to pick.  The pockets contain nothing but they agree that one will hustle them and the other will put his hands in their pockets.  Why is that not a conspiracy to thieve?  Are they not charged with theft or a conspiracy for theft?

MR BYRNE:   It is, in my submission.

DAWSON J:   What is the difference between that and this case?

MR BYRNE:   The difference in this case is that the object of the conspiracy was achieved but it was not an unlawful act and it is not a criminal conspiracy to agree to do something which is not unlawful.

DAWSON J:   It was not an agreement to do something that was unlawful here, because it was impossible to do what they were doing.

MR BYRNE:   Again we come back to the specific nature of the agreement.  The agreement was to obtain those specific cigarettes and that agreement was achieved but it was not unlawful ‑ ‑ ‑

DAWSON J:   The agreement in the example I gave you was to obtain the specific contents of the pockets which ‑ ‑ ‑

GAUDRON J:   And the difference, you say, is that one is really not talking about impossibility in this case; one is talking about whether there is an unlawful act.  In the pickpocket situation, the object is an unlawful act.

MR BYRNE:   The act itself, the attempt to steal from the person’s pocket without the person’s consent ‑ ‑ ‑

DAWSON J:   And you would say on that view Nock’s Case was correctly decided?

GAUDRON J:   No, not in relation to the ‑ ‑ ‑

MR BYRNE:   Nock’s Case is different.

GAUDRON J:   You would say Nock’s Case is wrong if it is applied to the pickpocket, that would be a wrong application.

MR BYRNE:   Yes.

DAWSON J:   But applied to the actual substance in that case, which was what was in issue, the decision was right, you would say.

MR BYRNE:   In my submission the decision in Nock’s Case was right, yes, because it was a very limited decision.  What the agreement in Nock’s Case was, that these men conspired together to produce cocaine from, I think it was lignocaine, and that was factually impossible.  So that it could be equally charged that they conspired together to produce cocaine from butter.

DAWSON J:   And that identifies the problem in this particular case, the one that the Solicitor wants to debate.  Whether, in that situation, where there is an agreement with relation to a specific thing, a mere belief as to illegality in relation to conspiracy is sufficient, even though what was actually agreed to be done, when one looks at the particular facts, it was not illegal.

MR BYRNE:   That is right.  And again ‑ ‑ ‑

DAWSON J:   Well, that is a problem, is it not?

MR BYRNE:   It is certainly a problem ‑ ‑ ‑

DAWSON J:   Why is it not a problem that this Court should look at, given that there is a division of opinion in the court below, that the case sufficiently throws up the problem, and that it is a problem which is likely to, in these days of drug prosecutions, to recur and recur?

MR BYRNE:   This is, with respect, your Honours, a very different case from the traditional, if there is such a thing, drug prosecution.  I have conceded in my written submissions at the outset that the point raised by this application is clearly one of public importance.  I do not contest that for one moment.  My submission is that this is not an appropriate case in which to have that ‑ ‑ ‑

GAUDRON J:   You say it does not really arise in this case.

MR BYRNE:   That is the primary reason.

GAUDRON J:   You say it arises where you are talking about factual impossibility of performance and only where you are talking about factual impossibility of performance.  It does not arise in a case where the issue is lawful or unlawful act.

DAWSON J:   But on the other hand the Solicitor says it does arise in cases which are not ones of physical impossibility but where mere belief is enough.  And this case throws that problem up starkly.

MR BYRNE:  Again I would come back to the proposition that mere belief that ‑ ‑ ‑

DAWSON J:   I know you say that is wrong, and you may be right, but the Solicitor contends to the contrary.

MR BYRNE:   It cannot certainly be suggested that if somebody does something believing it to be an offence, and it is not, that they are guilty of a criminal offence.

DAWSON J:   The Chief Justice suggested it.

MR BYRNE:   With respect that must be wrong, because if it ‑ ‑ ‑

DAWSON J:   But you said it cannot be suggested.  All I am saying is he did.

MR BYRNE:   If that proposition is right, with respect, then the example I gave in relation to adultery is an appropriate one, and that is the one, as I say, that is constantly given in the academic writings on the topic, that people cannot agree to do things which they believe to be unlawful, which are not, and thereby be guilty of criminal offences.  They cannot attempt ‑ ‑ ‑

DAWSON J:   We have been over that one.

MR BYRNE:   They cannot attempt to do things that they think are criminal offences which are not, and thereby be guilty of a criminal offence. 

The other basis, your Honours, if I might say briefly, on which the proposition is put that these are not cases in which special leave should be granted is that there is, on the material before the Court, sufficient to determine that even if the point that is raised on behalf of the applicants is determined in the applicants’ favour, then the prosecution will ultimately not succeed, and that is the reference that has been made to the Ridgeway so-called entrapment argument.  The point was taken long ago when the matter was before the District Court, and that was before Ridgeway was even argued in this Court, let alone determined, that the evidence should be excluded on the basis that it was unfairly obtained by reason of entrapment.  The decision of this Court in Ridgeway has, in my submission, given that line of argument significant support. 

This is a very different case from Ridgeway for one very significant reason, and that was that the instigators of the offence in this case are the police, not the alleged offender.  This is a case on which it is common ground the police approached the three respondents, initially one of them, and represented the goods as being stolen.  That is a completely different situation from Ridgeway who instigated the offence in his case to obtain the drugs in question.  In this case the fact that the goods were stolen was a necessary element of the offence and that element of the offence was, in this case, said to be satisfied by the belief of the accused, not their knowledge ‑ of course they could not have knowledge because that fact was not capable of being proved - but the fact of their belief was solely attributable to the representations made by the police.

GAUDRON J:   Is the actual offence receiving goods knowing them to be stolen?  Is that the unlawful act or is it receiving goods reasonably suspected of being stolen?

MR BYRNE:   No, the offence in this case is receiving goods knowing them to have been stolen, and I should say that the ‑ ‑ ‑

GAUDRON J:   So the conspiracy has to involve an element of knowledge?

MR BYRNE:   Yes.  It is said, and it is set out in the judgment of Mr Justice Dunford, that belief is sufficient, but reasonable suspicion is not sufficient.  Your Honours would be aware of the distinction between the charge of receiving stolen goods, in which knowledge or belief of the fact that they are stolen and the fact that they are stolen, are essential elements of that offence.  Indeed, these men were originally charged, I should say, and committed for trial on a charge of attempted receiving of stolen goods.  The original indictment presented against them read in terms that they did attempt to receive stolen goods well knowing them to have been stolen.   That indictment was withdrawn when the District Court judge to whom it was presented expressed reservations about its prospects of success and the charge was then changed to one of conspiracy.

But this charge is one that can be very starkly distinguished from the charge which is frequently known as goods in custody, where the elements of the offence are that the accused person was in possession of goods which were reasonably suspected of being stolen, where it is not necessary to prove that the goods were stolen and it is not necessary to prove knowledge or belief, merely a reasonable suspicion.  In this case, the element of the offence of receiving was one which was instilled in the minds ‑ ‑ ‑

GAUDRON J:   So the receiving offence is knowing them to have been stolen, and what, or believing them to have been.

MR BYRNE:   It is suggested in a case of Shapanski, which is a decision of the Chief Justice in New South Wales that belief is sufficient in a charge of receiving, but the traditional indictment in a charge of receiving is knowing them to have been stolen.

DAWSON J:   That muddies the waters a bit, does it not?

MR BYRNE:   It may.  But in my submission, whilst it is conceded that it is clearly a point of real importance, this is not a case in which those important questions should be determined.

DAWSON J:   Thank you, Mr Byrne.  Mr Solicitor.

MR MASON:   Just three points in reply, your Honours.  The very question of the scope of Nock is itself an important issue and this case presents it in a very sharp, discrete and appropriate vehicle.

Secondly, it is arguable that the adultery example is distinguishable.

DAWSON J:   I tried to, but I did not think I was very successful.  Would you do it for me.

MR MASON:   That would be one where the agreement, if carried out, would not be an offence because adultery is not in law an offence.  Here, the agreement, if carried out, would not be an offence because it is not in fact ‑ ‑ ‑

GAUDRON J:   Because it is not in law an offence to receive goods that have not been stolen or that ‑ ‑ ‑

MR MASON:   No, the offence is clear.  The reason if carried out it would not be an offence was because the facts would not support it, whereas in the adultery situation the law would not support it.

DAWSON J:   That is it, that is right.

MR MASON:   And thirdly, your Honours, just on the Ridgeway point, because my friend did return to it, the attachment to our supplementary summary of argument has one page from the argument in the Court of Appeal and it is lines 10 to 15 where it is my learned friend who himself emphasised that the quashing remedy in the present case, that was the one that was sought and obtained, was distinct from the entrapment one.  This case was argued below before the decision in Ridgeway was decided but there were references made in the argument about an entrapment issue but the passage I refer to made it plain that my friend was saving that for another day.  Clearly, it would be a matter upon which there would need to be evidence and I stand corrected, but I am not aware that it is common ground that the police induced this from the very beginning.

GAUDRON J:   Mr Solicitor, I have one other question, if I may.  What do you say the elements of the offence of receiving are, the unlawful act to which the conspiracy is directed?  What precisely is that unlawful act?

DAWSON J:   Is it knowing or believing?

MR MASON:   The form of the section is knowing, Shapanski says it encompasses belief.

GAUDRON J:   That cannot be right, can it?  If in form it says “knowing”, it cannot then encompass belief, can it?

MR MASON:   One could be evidence of the other, but not necessarily the same.

GAUDRON J:   Yes, one could be evidence.

MR MASON:   Here, of course, the Crown alleges that the surrounding circumstances of the discussion would establish the knowing aspect.

GAUDRON J:   But you cannot know something as a fact if it is not a fact.  You are mistaken.  You might believe it.  I might believe that there is an arch angel standing there on my right, but if it is not the fact I do not know it.

DAWSON J:   On the other hand, I can agree to do something with knowledge even though, as it turns out, my knowledge is mistaken.

MR MASON:   Yes, and you can attempt to do something - I think we have gone through that before.

DAWSON J:   The Court will take a short adjournment to consider what it will do in this matter.

AT 11.00 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.03 AM:

DAWSON J:   There will be a grant of special leave in this case.

AT 11.03 AM THE MATTER WAS CONCLUDED