Rolls v The Queen; Sleiman v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0702

AARON MICKAEL BRUCE ROLLS
	Applicant
v
THE QUEEN	Respondent

S APCR 2009 0715

MIRVAT SLEIMAN
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, WEINBERG AND HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 April 2011
DATE OF JUDGMENT:	1 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 401
JUDGMENT APPEALED FROM	R v Rolls and Sleiman [2009] VSC 243 (Kaye J)

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CRIMINAL LAW – Conviction – Conspiracy to murder – Whether two can conspire to commit an offence where only one is to play any active role – Whether the trial judge erred in directing the jury that they must find both co-accused guilty before they could find either co-accused guilty – Whether adequate instruction to the jury about the admissibility and inadmissibility of evidence against each accused – R v Moran and Mokbel [1999] 2 VR 87 distinguished – Nirta v The Queen (1983) 51 ALR 53 distinguished – R v Anderson [1986] AC 27 and R v Siracusa & ors (1990) 90 Cr App R 340 discussed – The Queen v Darby (1982) 148 CLR 668 distinguished – Crimes Act 1958, s 321(1) – Applications for leave to appeal against conviction refused.

CRIMINAL LAW – Sentence – Rolls sentenced to 11 years’ imprisonment with a non-parole period of 8 years – Sleiman sentenced to 9 years’ imprisonment with a non-parole period of 6 years – Whether sentences manifestly excessive – Absence of any current sentencing practices in relation to conspiracy to murder against which to determine an appropriate sentencing range – Whether sentencing judge had sufficient regard to Sleiman’s mental health – Whether sentencing judge erred in failing to impose sufficiently disparate sentences on the co-offenders – Applications for leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Rolls	Mr C Boyce and Mr J McLoughlin	Victoria Legal Aid
For the Applicant Sleiman	Mr J Dickinson SC	Melasecca Kelly & Zayler
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Harper JA and the additional reasons of Weinberg JA. For the reasons their Honours give, I too would refuse each application.

WEINBERG JA:

I have had the considerable advantage of reading in draft the reasons for judgment prepared by Harper JA. I agree, for the reasons given, that each application for leave to appeal against conviction and sentence should be refused. I wish, however, to add some brief comments of my own.

The offence of conspiracy has existed, in one form or another, for more than 700 years. It may originally have been a statutory offence,[1] though some scholars consider that its non-statutory origins pre-date even the 13^th Century.[2] By the early 17^th Century, an offence of conspiracy had also come to be recognised as an indictable misdemeanour at common law.[3]
[1]Ordinance of Conspirators 1305 (33 Edw I, st 2) discussed in Peter Gillies, The Law of Criminal Conspiracy (Federation Press, 2^nd ed, 1990), 1.
[2]Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3^rd ed, 2010) 459 [8.85].
[3]The Poulterers’ Case (1611) 9 Co Rep 55b, 77 ER 813. See also Nirta v The Queen (1983) 51 ALR 53, 60 (Gallop J).

It seems that the wheel has now come full circle in this State.[4] In 1984, the Crimes Act 1958 was amended to abolish the offence of conspiracy at common law.[5] In its place, there was created a new statutory offence of conspiracy.

[4]All Australian jurisdictions criminalise conspiracy, but only Victoria, the ACT, the Northern Territory and the Commonwealth have legislated to define its scope. The common law is still relevant in the other jurisdictions – including the Code states – in determining the elements of the offence.
[5]Save for conspiracy to defraud, and conspiracy to cheat and defraud (which are treated as two separate offences in the statute, and which pursuant to s 321F are preserved as common law offences).

Section 321 relevantly provides:

321 Conspiracy to commit an offence
(1)Subject to this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement, he is guilty of the indictable offence of conspiracy to commit that offence.
(2)For a person to be guilty under subsection (1) of conspiracy to commit a particular offence both he and at least one other party to the agreement—
(a)must intend that the offence the subject of the agreement be committed; and
(b)must intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time when the conduct constituting the offence is to take place.

…

As Harper JA has noted, s 321(1) is modelled upon s 1 of the Criminal Law Act 1977 (UK), which created a statutory offence of conspiracy and abolished conspiracy at common law in England.

The primary point raised on behalf of each applicant, in respect of their applications for leave to appeal against conviction, is that there cannot be a conspiracy under s 321 unless the parties to that alleged conspiracy all intend to play an active role of some kind in carrying out the object of their agreement.

It seems to me that the argument rests upon a somewhat slender foundation.

In R v Anderson,[6] the House of Lords held that it was immaterial on a conspiracy charge, under s 1 of the Criminal Law Act 1977 (UK), that the alleged conspirator did not intend that the agreement be carried out and, indeed, believed that it was impossible to carry it out. This decision was described as ‘troublesome’

by the Law Commission in 2007.[7] However, it is unnecessary, for the purposes of this judgment, to comment further upon that matter.

[6][1986] AC 27 (‘Anderson’).

[7]United Kingdom, Law Commission, Conspiracy and Attempts, Consultation Paper No. 183 (2007) 10 [1.38]. See also David Ormerod, Smith and Hogan’s Criminal Law (Oxford University Press, 13^th ed, 2011) 440 [13.3.3.5]. There, it was ‘submitted that Anderson should not be followed in this respect. It has been overlooked or ignored more than once by the Court of Appeal’ (citations omitted).

Regrettably, however, their Lordships went further. Lord Bridge (with whom the other members of the House of Lords agreed) commented by way of what was plainly dictum, that beyond the mere fact of agreement,

the necessary mens rea of the crime is … established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice; nothing more is required.[8]

[8]Anderson [1986] AC 27, 39.

Read literally, his Lordship’s observation would have it that there cannot be a conspiracy in circumstances where A and B agree to the commission of a crime, but A alone is to do what is required to bring the agreement to fruition. On that analysis, the agreement would only give rise to a conspiracy if both A and B were required to perform some act in furtherance of its commission.

Lord Bridge’s dictum was criticised almost from the very moment that it was delivered.

Professor J.C Smith commented, somewhat scathingly:

Lord Bridge’s remarks, though apparently concurred in by the House, were not necessary to the decision in Anderson and there appears to be no other authority to support them. The House’s fallibility on the subject of conspiracy is apparent … [9]

[9]J.C Smith, ‘Conspiracy – R v El Ghazal – Commentary’ [1986] Criminal Law Review 53, 54.

Professor Smith subsequently said of Lord Bridge’s dictum:

It seems to produce an undesirable result. If B. agrees with C. that C. shall inflict grievous bodily harm on X., it seems very unsatisfactory that C. should be guilty of no offence, simply because B. is to play no part in carrying out the agreement; whereas he would be guilty if B. was to play some part, as by driving him to the scene of the crime or by keeping watch. If the dictum is right, and B. is to do nothing to carry out the agreement, C. could be made liable only by holding that there was a conspiracy with only one conspirator. Some funny things have happened to conspiracy lately; but nothing (yet) quite so bizarre as that.[10]

[10]J.C Smith, ‘Incitement – R v Sirat – Commentary’ [1986] Criminal Law Review 245, 247.

In Smith and Hogan’s Criminal Law,[11] Lord Bridge’s dictum is referred to in the following terms:

No authority was cited for this novel dictum and the Court of Appeal has subsequently held that Lord Bridge is not to be taken as saying what he plainly did say … [t]here is nothing in the section, nor in the common law, to require participation in the carrying out of the agreement by each conspirator. All that need be contemplated is the commission of the offence ‘by one or more of the parties to the agreement’.[12]

[11]David Ormerod, Smith and Hogan’s Criminal Law (Oxford University Press, 13^th ed, 2011).

[12]Ibid 441 [13.3.3.6].

The reference in the preceding paragraph to the Court of Appeal having subsequently held that Lord Bridge was not to be taken as saying what he plainly did say was a somewhat acerbic reference to that Court’s decision in R v Siracusa.[13] There, the appellants were convicted of conspiracy to import drugs. They appealed on the basis that the trial judge had failed to direct the jury adequately as to the mens rea of that offence. They relied specifically upon Lord Bridge’s dictum in Anderson.
[13](1990) 90 Cr App R 340 (‘Siracusa’).

The Court dismissed the appeal. Their Lordships said:

We think it obvious that Lord Bridge cannot have been intending that the organiser of a crime who recruited others to carry it out would not himself be guilty of conspiracy unless it could be proved that he intended to play some active part himself thereafter.[14]

[14]Ibid 349.

The Court went on to say:

Participation in a conspiracy is infinitely variable: it can be active or passive. If the majority shareholder and director of a company consents to the company being used for drug smuggling carried out in the company's name by a fellow director and minority shareholder, he is guilty of conspiracy. Consent, that is the agreement or adherence to the agreement, can be inferred if it is proved that he knew what was going on and the intention to participate in the furtherance of the criminal purpose is also established by his failure to stop the unlawful activity. Lord Bridge's dictum does not require anything more.[15]

[15]Ibid.

Professor Smith was scarcely more complimentary of Siracusa than he had been of Anderson. He criticised the Court of Appeal for having treated a failure to stop unlawful activity as though it equated to playing some part in that activity. He noted that the Law Commission had considered Lord Bridge’s dictum to contradict the traditional view of conspiracy, and to have an effect that would be contrary to public policy. For that reason, Professor Smith observed, the Law Commission’s draft Criminal Code would not give effect to that dictum.[16]
[16]See J.C Smith, ‘Conspiracy – R v Siracusa and others – Commentary’ [1989] Criminal Law Review 712, 713.

In more recent times, the Law Commission described Anderson as having ‘detract[ed] from the clarity’ that should apply to s 1 of the English Act.[17] The Commission considered that

there is no reason, in terms of statutory language or policy, for insisting that D must intend to play some part in implementing the agreement. If D1 and D2 agree to murder V, D1 ought to be convicted of conspiracy to murder even if it was not his or her intention to play any part in V’s murder.[18]

[17]United Kingdom, Law Commission, Conspiracy and Attempts, Consultation Paper No. 183 (2007), 10 [1.38].

[18]Ibid 11 [1.39].

The Law Commission was also critical of Anderson in its Final Report,[19] concluding that it drew what the Commission described as ‘arbitrary’ distinctions.[20]
[19]United Kingdom, Law Commission, Conspiracy and Attempts, Final Report No. 318 (2009).
[20]Ibid 94 [6.21]

The criticisms levelled at Lord Bridge’s dictum are telling. His Lordship’s requirement that all parties to the alleged conspiracy agree to be involved in the commission of an offence does not accord with the language of either the English provision, or its Victorian equivalent. Section 321 makes it plain that it is sufficient if it is agreed that one or more of the parties are to be involved in the commission of that offence. There is nothing in the language of the section which provides any support for any requirement that each party to an alleged conspiracy must intend to play some active part in the commission of the agreed offence.

Of course, a person does not become a party to a conspiracy merely by acquiescing in a plan devised by others. So much is clear.[21] However, it does not follow that the offence under s 321 cannot be made out unless each of the alleged conspirators has personally agreed to participate in some act in furtherance of the agreement.
[21]See, generally, R v Caldwell (2009) 22 VR 93, 99-100 [62]-[63] (Weinberg JA), cited with approval in Dickson v The Queen (2010) 241 CLR 491, 505 [23].

Section 321 does, of course, require proof that the parties have agreed that at least one of their number will participate actively in the implementation of the agreed plan. In other words, it will not be sufficient if the agreement is to be carried out entirely by some third party, with none of the alleged conspirators playing any active role.[22]
[22]I note that the offence of conspiracy under s 11.5(2) of the Criminal Code Act 1995 (Cth) is narrower in scope than the offence either at common law, or under s 321 of the Crimes Act 1958. In Dickson v The Queen (2010) 241 CLR 491, the High Court compared conspiracy under the Crimes Act 1958 (which is complete upon the making of the agreement without proof of the commission of any overt acts), with the position under Commonwealth law (whereby a person cannot be guilty of that offence unless that person, or at least one other party to the agreement, has committed an act in furtherance of the agreement).

In Nirta v The Queen,[23] the Full Court of the Federal Court, sitting on an appeal from the Supreme Court of the Australian Capital Territory, was confronted with a case whereby the agreement reached between the parties did not involve any of them personally performing any of the acts required to achieve the object of the alleged conspiracy. The Court held that, in such circumstances, there could be no conviction for an offence under s 86 of the Crimes Act 1914 (Cth). Jenkinson J said:

A conspiracy to commit an offence is, in my opinion, not committed unless there is an agreement that acts shall be done by a person who, or by several persons each of whom, is party to that agreement …[24]

[23](1983) 51 ALR 53 (‘Nirta’).

[24]Ibid 64, citing DPP v Nock [1978] AC 979.

Nirta was subsequently criticised by Professor Peter Gillies as being unduly restrictive.[25] He wrote:

It is well established in respect of the substantive criminal law that D may incur liability as a principal where he or she acts through an innocent agent. There seems to be no logical reason why two or more persons cannot incur liability for conspiracy by virtue of an agreement to commit a crime or other unlawful act through an innocent agent, or for that matter through a person who commits this crime or other unlawful act with the knowledge of the circumstances rendering this act a crime or other unlawful act.[26]

[25]Peter Gillies, The Law of Criminal Conspiracy (Federation Press, 2^nd ed, 1990).

[26]Ibid 37-38 (citations omitted).

In other words, Gillies argued that the requirements of the statute could be met even though none of the parties to the conspiracy was to perform any act in furtherance of it, save through an ‘agent’, innocent or otherwise.

Irrespective of the merits of Gillies’ analysis, the facts of the present case fall squarely within s 321. It was open to the jury to find that the applicants had agreed, in the course of their intercepted telephone conversation, that Rolls would drown his wife, and attempt to make her death look like an accident. Their agreement was not of the kind that existed in Nirta whereby the acts in furtherance of the alleged conspiracy were to be carried out by a third party, who was not alleged to be a member of the conspiracy charged.

The fact that Sleiman happened to be in Melbourne at the time of the intercepted conversation, and therefore could not possibly play any role in the actual drowning of the deceased, did not mean that she could not, as a matter of law, have conspired with Rolls to murder his wife. It was sufficient that the applicants agreed that Rolls would do the actual killing, on their behalf.

Contrary to the applicants’ submission, this was not a case of Sleiman merely being informed of what Rolls intended to do, and signifying her acquiescence in his plan. It was, rather, a cold blooded and callous agreement on their part to commit murder, with the task of committing the actual crime being assigned to Rolls.

With regard to the other grounds relied upon by the applicants, I agree with Harper JA that leave to appeal should be refused.

HARPER JA:

The issues arising on these applications for leave to appeal

Aaron Rolls and Mirvat Sleiman were lovers. According to the prosecution, they were also co-conspirators in a plan to murder Rolls’ wife, Patrizia Rolls. She was to be killed so that the co-conspirators could subsequently live together. Both aspects of the conspiracy – the death and the subsequent cohabitation – were, according to the Crown, settled by 16 January 2008. The plan was that Rolls, who was then in Queensland with his wife, would be her murderer. Sleiman, who was then in Victoria, would join him as his domestic partner after the deed was done.

The two were tried jointly in the Supreme Court. At the conclusion of the trial, each was convicted of conspiracy to murder. The maximum punishment for this offence is imprisonment for life. Rolls was sentenced to be imprisoned for 11 years. He was ordered to serve a minimum of eight years’ imprisonment before becoming eligible for parole. Sleiman was sentenced to nine years’ imprisonment, with a non-parole period of six years.

Each prisoner now seeks leave to appeal against both conviction and sentence. Rolls put forward four grounds of appeal against conviction, but has relied on only three; and each of these raises the same issue. It is the principal issue on not only his, but also Sleiman’s, applications for leave to appeal. It is whether a conspiracy can exist when one of the parties to it is not by the terms of the agreement to do anything to advance the commission of the crime, albeit that the passive party will subsequently be one of its beneficiaries.

A secondary but related issue is whether Sleiman’s expressed agreement with the plans put to her by Rolls amounted in truth to no more than her acquiescence in

what was and remained not a joint plan but his idea; and not only that, but an idea which he would execute himself, albeit in the knowledge that Sleiman had no objection to his taking this course, and would do nothing to stand in his way. If this were the true analysis of the position, there could be no conspiracy.

If on the other hand Sleiman’s endorsement of the plan included an express or implied promise on her part to become Rolls’ domestic partner in return for his undertaking the murder, the results of the analysis might differ. It is arguable that, in those circumstances, her endorsement created a joint agreement, amounting to an unlawful conspiracy, the essence of which was that Rolls, acting not only for himself but also for her as her agent, would carry the plan into effect.

The applicants contend that, even so, no conspiracy would arise because Sleiman had no role to play in the killing of Mrs Rolls. It is the Crown’s case, however, that a plan of this kind amounts to a criminal conspiracy, and that the fact that Sleiman was not actively involved in bringing about the jointly desired conclusion is irrelevant.

A third issue, relevant only to the application by Sleiman, arises from the omission by the judge to instruct the jury in the course of his charge that, depending upon their findings of fact, they could convict Rolls while at the same time properly returning a verdict of not guilty in the case of Sleiman.

His Honour did not, of course, make the obvious mistake of telling the jury that if they convicted either conspirator, then the conviction of the other would follow. On the contrary, he instructed them that they must:

... be very careful against reasoning in a converse way, that if you are satisfied beyond reasonable doubt of the guilt of one of the accused, you are therefore satisfied beyond reasonable doubt of the guilt of the other one. For such reasoning, whilst it is tempting, would be wrong and illogical. The proper approach, and the approach you must adopt, is that in order to be satisfied beyond reasonable doubt of the guilt of one accused, you must be satisfied beyond reasonable doubt of the guilt of both of them.

The first of the three proposed grounds of appeal upon which Rolls relies is that the verdict was unreasonable, and cannot be supported having regard to the evidence. This, according to the particulars given in support, is because it was not open to a properly directed jury to find beyond reasonable doubt that the conversation of 16 January 2008 constituted an agreement to pursue a course of conduct.

The second proposed ground of appeal upon which reliance is placed is that the trial judge erred in law in giving wrong and confusing directions to the jury about what is necessary to establish participation in a conspiracy. By way of particulars of that ground, Rolls contends that the directions given by his Honour ‘confused the critical legal distinction between an expressed common intention and an agreement to pursue a course of conduct’ and failed adequately to direct the jury about the essential nature of such an agreement.

The third and final ground upon which Rolls proposes to rely in his application for leave to appeal against his conviction is that the trial judge erred in law by failing to direct the jury that each accused must have intended to play some part in the course of conduct to which the parties agreed.

By a document dated 23 November 2009 and headed ’Final Grounds of Appeal against Conviction’, Sleiman gave notice that she proposed to rely on four grounds of appeal. By notice dated 23 March 2011 and headed ‘Proposed Amended Grounds of Appeal against Conviction’, the same four grounds were again put forward, but two further grounds were sought to be added. This Court granted the requisite leave.

The result is that Sleiman now relies on six proposed grounds of appeal. I set them out below, with my emphasis on the words ‘admissible’ and ‘inadmissible’ merely for the purposes of distinguishing between them:

(i)That the learned trial judge misdirected the jury by instructing them that they had to be satisfied as to the guilt of both the co-accused before they could find either of the co-accused guilty leading to a substantial miscarriage of justice;
(ii)that the learned trial judge erred in failing to adequately instruct the jury as to the evidence admissible against the applicant;
(iii)that the learned trial judge erred in failing to adequately instruct the jury as to the evidence inadmissible against the applicant;
(iv)that the verdict of the jury should be set aside on the ground that it is unreasonable and cannot be supported by the evidence;
(v)that the learned trial judge erred in law in that the directions he gave to the jury as to what is necessary to establish participation in a conspiracy were wrong and likely to confuse the jury; and
(vi)that the learned trial judge erred in law by failing to direct the jury that each accused must have intended to play some part in the course of conduct agreed to.

Conspiracy is an offence against s 321(1) of the Crimes Act1958. This section is found in Division 10 – Conspiracy – of Part 1 of the Act. Division 10, in turn, was inserted into the principal Act by the Crimes (Conspiracy and Incitement) Act 1984. Section 321(1) is based upon, but is shorter and more succinct than, its English counterpart: that counterpart being s 1(1) of the Criminal Law Act 1977.Because a decision of the House of Lords – R v Anderson[27] – is of importance in the applicants’ argument, s 321(1) of the Crimes Act is set out below, with the inclusion, in italics, of words which are not in the English version, and with the further inclusion, within square brackets, of the additional words found in s 1(1) of the Criminal Law Act (UK) (as that provision appeared at the time of the House of Lords judgment in Anderson) but not included in the Victorian legislation:

321 Conspiracy to commit an offence
(1)Subject to [the following provisions of this Part of] this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will [necessarily amount to or] involve the commission of [any] an offence [or offences] by one or more of the parties to the agreement [if the agreement is carried out in accordance with their intentions], he is guilty of the indictable offence of conspiracy to commit that offence.
[27][1986] 1 AC 27.

The factual background

The agreement upon which the Crown relies was made by telephone. It must, on the Crown case, have been conceived some time – but perhaps only a short time – before 16 January 2008. On that day Rolls, using a public telephone on the Gold Coast, called Sleiman on her mobile phone in Melbourne. The Crown case was that he had use of a landline at home and a mobile phone at his convenience, but chose to use a public telephone because of his fear of being overheard by a listening device. If so, his scheme backfired. By an extraordinary co-incidence the police, who were carrying out an investigation having nothing to do with either conspirator, happened to have a bugging device in place in the public telephone booth which Rolls happened to select. What was said in the ensuing conversation with Sleiman was recorded and transcribed. Its contents also inspired the decision, taken by the police, to place Patrizia Rolls under protection as from 21 January. By this means, any plan to kill her was thwarted. Instead, the conspirators were tried and convicted in this Court, it having jurisdiction because the alleged agreement was made in Victoria.

It is unnecessary to replicate here the full transcript of the offending conversation. It is, however, helpful to record its substance, with some minor adaptation so as to avoid inappropriate repetition of the vernacular, and so as to omit some of the little irrelevancies which creep into informal speech.

Brief words of greeting opened the conversation. These were followed by Rolls – without further preliminaries – announcing that he was going for a beach walk and ‘she’ would have an accident. It was necessary, he said, to ‘make sure that it’s done properly’. The proposal put forward by Rolls was that he, having escorted his wife from her car at the point of commencement of the beach walk, would ‘have to walk all the way from Surfers to home’. He explained that he could not take a taxi or a bus or any form of conveyance on which he might ‘be recognised or may be put on camera’. After his arrival at home he would ‘have to report that she’s gone missing’.

At this point, Rolls asked ‘alright?’ Sleiman indicated her assent. This was followed by Rolls’ account of what might be called plan B. He said that ‘the other one is that I go for this hike … in the mountains … and there is an accident’. Sleiman responded with ‘what, like falling over?’ This time it was Rolls who with an ‘Ah ha’ indicated his assent. The conversation then continued thus:

Sleiman: Ok
Rolls:But it’s got to look like an [accident] … the beach one’s the only real safe one.

Sleiman:        Yes, but –
Rolls:             Because –
Sleiman:        Yes, but how are you going to get her in there?
Rolls:             She wants to go for a walk on the beach.
Sleiman:        Yes.
Rolls:So she’s going to the beach with me … I [have] just got to make sure it’s the right time … to do it … but it’s the best way … because there’s no prints … there’s no anything – it’s in the water – accidental drowning … alright?
Sleiman:Yeah.   Yeah. Yep, yep. Yep, yep.
…

Sleiman:It’s a long way [to walk from the beach to the Rolls’ home].
Rolls:I did it the other day to time it … took me an hour and something.
Sleiman:Okay.
Rolls:So that way the car’s left there, the whole lot – plus the phone … plus the keys … then report her missing and everything like that.
Sleiman:But then you are going to be wet aren’t you?
Rolls:… I’ve got it all worked out … the clothes and boots and stuff like that, they’re … going to be dumped and I’ll have other stuff waiting. … it’s the only way. … I don’t like … saying too much on these, because –
Sleiman:Yes, I understand –
Rolls:You never know if somebody’s listening.
Sleiman:Yes, yes. I know. I know. Yes.
Rolls:Ok?
Sleiman:Yes, the beach one seems to be … kind of more –
…

Rolls:It’s the best one. Ok?
Sleiman:Yes, cool.
…

Rolls:And then – what will happen is that I – you know – the grief and all that sort of shit … and go through all the process with the law, and stuff like that … and then we’ll be right. ... Alright?
Sleiman:That’s like a nice romantic walk or skinny dipping.
Rolls:Yes. … Ok?
Sleiman:Mmm.
…

Rolls:But it will be right, ok?
Sleiman:Yes, [are] you going to be alright doing it?
Rolls:Well, I’ve got no … choice, have I? … Are you cool with that?
Sleiman:Yes, absolutely – absolutely. You know – absolutely.
…

Rolls:And then once all the – dies down … I’ll just pack up … I’ll go to Sydney, because I’ve got to do a couple of things there. You can come up there … and then a couple of weeks after that then you can just leave down there and come up to here … you cool with that?
Sleiman:Of course I am.
…

Sleiman:It will be good if there will be alcohol in her system.
Rolls:Yes, well I’m working on that … thinking about how to do that.

In argument before this Court, counsel for Rolls accepted that the conversation of 16 January was preceded by communications between Rolls and Sleiman which established the background against which that conversation took place. That concession was rightly made. Rolls could not have moved to explain, in the 16 January conversation, ‘what is going to happen’, unless the topic had been opened in one or more earlier exchanges.

Given that earlier exchanges did take place, there is nevertheless no evidence of their content. In his reasons for sentence his Honour described the position as he found it to be:

The Crown case was that the conspiracy … was formulated … on or about 16 January 2008. In my view, the evidence makes it clear, as the jury would have accepted, that in the period shortly before the conversation of 16 January, the two of you had already discussed the idea of you, Rolls, ridding yourself of your wife by murdering her. That conclusion is inescapable from the manner in which the telephone conversation, of 16 January, commenced. It is clear from the content and from the tone of that conversation that, contrary to the evidence which you, Rolls, gave before the jury, you had not just concocted the story of murdering your wife when you entered the telephone box. Rather, you, Rolls, were providing to you, Sleiman, the details of the plan, which you both had previously discussed undertaking to murder your wife.

In my opinion, his Honour was justified in coming to these conclusions. They are strengthened by conversations between Rolls and Sleiman which took place on 21 January, after Patrizia Rolls had been taken into police custody. Shortly after 8.00am (eastern summer time) that day, Rolls told Sleiman that he had returned home after midnight the evening before (that is, early in the morning of 21 January) to find that neither his wife nor her car were there. Subsequent enquiries by him about her whereabouts were not fruitful. This it seems prompted Rolls’ comment that his wife could ‘do it herself’ to which Sleiman responded ‘that will be good’. This elicited a ‘yes fuckin’ oath’ from Rolls.

A little later, the following exchange took place:

Rolls:Yes, so with any luck she’s driven away and more likely done it for herself.

Sleiman:        That’ll be great.
Rolls:             Ha.
Sleiman:        Be perfect.
Rolls:             That’d be too easy, that.

Another conversation took place during the course of the afternoon. By this stage, Rolls had been served with what he described as a domestic violence order made by a Court at what appeared to be his wife’s instigation. One effect of the order was to require him to vacate the family home, a prospect which filled him with no joy. The realisation that Patrizia was alive also influenced the conversation, with Sleiman predicting that a divorce was the only possible outcome and that ‘we have gone back all the way down to … square one’. Rolls’ response was ‘yes, at least she’s instigated it now’. At a later point, Sleiman said ‘now that you’re … out of the house … I can come and see you whenever I want’ to which Rolls replied ‘I’ll probably come down and see you’. Sleiman responded ‘now we can … see [each] other. True?’ Rolls responded ‘yes’.

The law

The applicants submit that s 321(1) of the Crimes Act was not infringed in the circumstances of this case because, as Rolls says in his written outline of submissions (submissions which Sleiman has expressedly adopted for herself) –

3.The conversation [of 16 January] consists almost entirely of Rolls talking to Sleiman about two possible plans to kill his wife. Sleiman queries aspects of the plan and, towards the end of the conversation, encourages Rolls to carry it out. At no stage in the conversation [of 16 January 2008] is there any suggestion that Sleiman would play any part in the plan.
4. The grounds of appeal stem from a single legal issue: what in law is required to prove ‘an agreement to pursue a course of conduct’ – a question that does not often arise because it is relatively rare to have direct evidence of the content of an alleged agreement. Such agreement is almost always inferred from subsequent conduct. There is very little consideration in the common law world of the ‘most difficult conceptual problem in the law of criminal conspiracy – the meaning of agreement itself.’

…
8. It is clear that a criminal agreement is distinct from a contractual agreement and does not therefore fall to be analysed for the formal presence of offer, acceptance and consideration. However … an agreement for the purposes of the law of criminal conspiracy does require an element of mutual promise and enforceability.

…
13. A requirement of the law of criminal conspiracy is that each alleged conspirator intends to play some part, however slight, in the course of conduct agreed to. If one party does not plan to be involved at some level in a ‘course of conduct’ based on the agreement then there is no conspiracy.
14. The words ‘that a course of conduct should be pursued’ in s 321(1) are important. Those words are unnecessary if Parliament had intended that liability would attach where a person simply agrees with any other person that the other person will commit an offence.

…
19. The following propositions flow from the above analysis and jointly and severally underpin the grounds of appeal:
(i) Although an ‘agreement’ does not need to have the formal features of a contract, there is a required element of mutual promise and of enforceability.
(ii) There is an important distinction between an expressed common or mutual intention (not sufficient for a conspiracy) and an agreement (sufficient for a conspiracy).
(iii) There is an important distinction between agreeing that offence A should happen (not sufficient for a conspiracy) and an agreement to pursue a common purpose with offence A as its object (sufficient for a conspiracy).
(iv) The Crown must prove that each accused intended to play some part in the ‘course of conduct’ although not (as the words of the statute make clear) in the commission of the offence itself.
(v) It follows that mere encouragement of a plan by another to commit an offence is not, without more, sufficient to turn a description of a planned offence into a conspiracy.[28]

[28]Citations omitted.

The important question is whether the judge correctly instructed the jury about the first element which the Crown had to prove. This he properly identified as whether the particular accused, whose case the jury then had under consideration, entered into an agreement with the co-accused to murder Patrizia Rolls. The judge continued:

To be satisfied of this first element [the existence of the agreement between one accused and his or her co-accused to murder Patrizia Rolls], you must be satisfied beyond reasonable doubt that Ms Sleiman actually signified or communicated to Aaron Rolls her agreement that Aaron Rolls should act on these plans and murder his wife.
You heard particularly [counsel for Sleiman] focus on this element of the charge against his client and he submitted to you that there was no such communication or signification by Ms Sleiman to Aaron Rolls of her assent, all she was doing was saying ‘I hear what you say’ … but not signifying her assent.
Now, to be satisfied beyond reasonable doubt of this first element you must therefore be satisfied that both of them were actually agreeing that Ms Rolls would be murdered by Aaron Rolls.
…
Now, in saying that, of course, in order to prove the existence of that agreement, the prosecution does not have to prove an agreement which would possess the formalities of a contract or an agreement in civil law; I think that is fairly self evident. Rather, it is sufficient that the prosecution proves beyond reasonable doubt the existence of an agreed common purpose, that is, an actual agreement between the two accused that one or both would murder Patrizia Rolls.
Now let us move to the second element, that is, the intention. So the prosecution must prove beyond reasonable doubt – if you are satisfied as to that first element, you move to the second one – and you must be satisfied beyond reasonable doubt that at the time the agreement was made both accused actually intended to form that agreement.
Now, that element requires you to be satisfied beyond reasonable doubt that they actually both really meant to make the agreement, they were not simply appearing to be agreeing with one another.
Now, both of the two accused really put this matter in issue. On behalf of Mr Rolls it was submitted you should have a reasonable doubt that he was really intending to enter into an agreement. What he submitted is that in fact what he was doing was playing for time. If you have a doubt about that, you have a doubt about the existence of that element in respect of both accused, because to be satisfied beyond reasonable doubt as to this element against Aaron Rolls you have to be satisfied beyond reasonable doubt that both Aaron Rolls and Mirvat Sleiman intended to enter into the agreement. Equally, to be satisfied beyond reasonable doubt as to this element, this second element, against Ms Sleiman, you have to be satisfied beyond reasonable doubt that the two of them were intending to enter into the agreement.

So there actually has to be a meeting of the minds. So that if you are satisfied that there was a signification by Ms Sleiman of her consent or Mr Rolls by his assent to the agreement, you have to be satisfied beyond reasonable doubt that both of them were intending to form an agreement.

His Honour returned to these issues a little later in his charge. He said:

I have directed you already that because there are two accused you need to consider the prosecution case against each accused on the evidence that relates to that particular accused, and I will explain to you in a minute, but there is one particular aspect in which that direction has some relevance. But on the other hand, the nature of the case in this particular case is such that to be satisfied beyond reasonable doubt as to the guilt of either accused, you will have to be satisfied beyond reasonable doubt of the guilt of both accused, so that if you are not satisfied beyond reasonable doubt as to the guilt of one of the two accused, you must necessarily find the other accused also not guilty of the offence charged.
The reason for that, I think, is clear from really the way I have defined the three elements to you because, as you will appreciate, to be satisfied beyond reasonable doubt of the case against each accused, you have to be satisfied beyond reasonable doubt of the existence of a common intention of both of them to enter into the agreement and of a common intention against both of them to actually, that one or both of them would follow through and murder Patrizia Rolls.
So that is why I have just instructed you that if you have a reasonable doubt about the guilt of one of the two accused, it must logically necessarily follow that you would have a reasonable doubt about the guilt of the other accused.
So to be entitled to convict one of the accused of the charge you would have to be satisfied beyond reasonable doubt of the guilt of both of them.
There is one point that you will need to be alert to in that and it is important you take care on this. In following that direction, be very careful against reasoning in a converse way, that if you are satisfied beyond reasonable doubt of the guilt of one of the accused, you are therefore satisfied beyond reasonable doubt of the guilt of the other one. For such reasoning, whilst it is tempting, would be wrong and illogical. The proper approach, and the approach you must adopt, is that in order to be satisfied beyond reasonable doubt of the guilt of an accused, you must be satisfied beyond reasonable doubt of the guilt of both of them.
So in your deliberations, if you get to a stage when you are considering, and you consider you are satisfied beyond reasonable doubt of the guilt of one of the accused, you must proceed on and consider the case against the other accused. And if you are not satisfied beyond reasonable doubt of the other’s guilt, that would mean that logically you could not have been satisfied beyond reasonable doubt of the first and your verdict, therefore, would be not guilty for both.

At the heart of the submissions put on behalf of the applicant are two propositions. The first is undoubtedly correct. It is that there is an important distinction between, on the one hand, an expressed common or mutual acceptance that a particular outcome was desirable, or would be an end product of a sequence of events and, on the other, an agreement that two or more persons would bring that end about by jointly participating in action to that end. That distinction is therefore between two species of agreement. On the one hand is an agreement or acceptance that offence A would, or even should, be committed. On the other is an agreement to pursue a common purpose with offence A as its object. A mere agreement that offence A would be committed is not a sufficient basis upon which a conspiracy can be founded; an agreement to pursue a common purpose, with offence A as its object, is.

Which brings me to the second of the two propositions which together form the core of the applicant’s submissions. Unlike the first, which is undoubtedly correct, this second proposition is, in my opinion, equally clearly wrong. It is that a person who, although agreeing to a proposed course of criminal conduct, and having a stake in its outcome, does not agree to participate in at least part of that conduct, will not be a conspirator; and will not, therefore, be guilty of conspiracy. In other words, according to this proposition, an agreement that the desired illegitimate end be achieved by the actions of only one party to the agreement, even if the other party or parties will benefit by that achievement, is not enough. It would follow, if this proposition is correct, that where (as in this case) there are only two alleged conspirators, there will be no conspiracy if only one of the two is to embark on the course of conduct which will involve the commission of the offence on which the conspiracy is founded.

Although the first proposition is right and the second wrong, both require further examination. I shall therefore return to both. One point put forward by the applicants may, however, be disposed of at once. They maintain that an agreement for the purposes of the law of criminal conspiracy does require an element of mutual promise and enforceability. This agreement met the first test, if one accepts that Sleiman promised to become Rolls’ domestic partner in return for his promise to murder his wife. Such an agreement, however, is unenforceable for illegality. Notwithstanding what appears to be a submission from the applicants to the contrary, the fact of unenforceability does not remove the agreement from the scope of the law of criminal conspiracy. Indeed, it is a concomitant of its categorisation as a criminal conspiracy.

It is convenient at this point to return to the first of the two propositions to which I referred at paragraph [58] above. It is necessary to examine this aspect of the law of criminal conspiracy, because the applicants correctly submit that that law is not directed at simply being in agreement; something more is required. A conspiracy will not come into existence unless at least two people agree that one or more of them will, in order to advance the interests of each party to the agreement, pursue a course of conduct which will involve the commission of an offence. Peter MacKinnon, of the Faculty of Law at the University of Saskatchewan, put it thus:[29]

When we ask ‘is there an agreement?’ in order to determine an issue of criminal liability, traditional theory demands that we insist upon an act of agreement. This act is an act of the intellect, though we will point to the outward manifestations of concurrence as evidence of the act – the verbal expression that an agreement has been reached or conduct which appears to have been co-ordinated as the result of an agreement. It is because the act of agreement is an act of the intellect, whatever its outward manifestations may be, that our law of conspiracy is open to the criticism that it imposes liability only for a blameworthy state of mind. It is in answering this criticism that the distinction between being in agreement and making an agreement is important. To punish people for being in agreement would be, indeed, to punish them for an opinion which they share, accidentally or otherwise – punishment only for a state of mind. Holding them liable for together reaching an agreement is distinguishable and the distinction is important.

[29](1981) 59 The Canadian Bar Review 301, 303.

That distinction may be illustrated by reference to the case of R v Moran and Mokbel.[30] The applicants were accused of conspiring together to manufacture methylamphetamine. The evidence against them was contained in a tape-recorded conversation, during the course of which Moran agreed to supply Mokbel with one of the drug’s principal ingredients.
[30][1999] 2 VR 87.

The difficulty for the prosecution was that the evidence went no further than to permit a conclusion beyond reasonable doubt that Moran was to supply Mokbel with an ingredient from which Mokbel would manufacture methylamphetamine on his own account. In these circumstances, the conspiracy could not be made out even though it might be inferred that Moran knew of, and agreed with (in the sense of fully accepting), the purpose for which his product was to be used. But the essential element was lacking: there was no, or no sufficient, evidence of Moran having ‘any stake in what Mokbel was to do with the [ingredient] once Moran had supplied it to him.’[31]
[31][1999] 2 VR 87, 96 [28].

The present case is different. Sleiman had a stake in the future of her relationship with Rolls. She envisaged a life with him, free of the distraction of his having a wife. She therefore had a stake in the plan to murder Patrizia Rolls. The jury were entitled – indeed, on the evidence, almost bound - to find that she was more than an observer, acquiescing in her co-accused’s plan but not being a party to it. At one point in the conversation of 16 January she remarked: ‘I just want it to get over and done with’. She stood to gain if the murder were accomplished, and she gave consideration for her becoming a party by agreeing to join Rolls as his domestic partner. She was not merely in agreement with Rolls; she had, in the sense of the phrase adopted by Peter MacKinnon, reached agreement with her lover.

Rolls too saw the enterprise as one in which both were involved. Hence his reference to what he saw as the aftermath of Patrizia’s death (my emphasis):

And then – what will happen is that I – you know – the grief and all that sort of shit … and go through all the process with the law, and stuff like that … and then we’ll be right.

Here, it seems to me, one can see again the distinction between being in an agreement (not this case) and making an agreement (which is what Rolls and Sleiman did).

I now turn to the applicants’ principal submission. It is that there can be no conspiracy involving but two parties unless each intended to play some part in the course of conduct which is designed to result in what is in law the commission of an offence. This submission finds its anchor in the following passage from the speech of Lord Bridge of Harwich in R v Anderson:[32]

I have said already but I repeat to emphasise its importance, that an essential ingredient in the crime of conspiring to commit a specific offence or offences under s1(1) of the [Criminal Law] Act of 1977 (UK) is that the accused should agree that a course of action be pursued which he knows must involve the commission by one or more of the parties to the agreement of that offence or those offences. But, beyond the mere fact of agreement, the necessary mens rea of the crime is, in my opinion, established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice; nothing more is required.

[32][1986] AC 27, 39.

The facts of the case with which their Lordships were concerned in Anderson help to explain this passage. Anderson had been in the same prison cell as prisoner AA, who was facing charges of very serious drug offences, and wanted to escape. Anderson was in the happier position of expecting imminent release on bail. He agreed with AA to accept ₤20,000 in return for his assistance in securing AA’s freedom. The first of his allotted tasks was to supply diamond wire to be used in cutting through AA’s prison bars. He was later to provide ladders.

The plan worked, up to a point. Anderson got his bail. A down payment of ₤2,000 was made to him. But he was then injured in a road accident. Thereafter he contributed nothing to assist in the escape. At his trial, he admitted that he intended to acquire the diamond wire and give it to a co-conspirator; but after that his intention was (or so he maintained) to insist on payment of a further ₤10,000 and on receipt of that money to decamp to Spain, taking no further part in the scheme. He went on to assert that he never intended that the escape plan should be carried into effect, and nor did he believe that it could possibly succeed.

Anderson argued on the appeal that, on these facts, the proper conclusion was that he lacked the mental element essential to sustain his conviction. The House of Lords disagreed. He intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. That sufficed. The prosecution was not required ‘to prove an intention on the part of each conspirator that the criminal offence or offences which will necessarily be committed by one or more of the conspirators if the agreed course of conduct is fully carried out should in fact be committed.’[33]
[33][1986] AC 27, 38.

That, as O’Connor LJ observed in R v Siracusa & Ors,[34] was sufficient to dispose of the question which was before the House. But Lord Bridge went on to enunciate the proposition from which I quoted at [67] above. It applied neatly to the facts in Anderson’s case. That case, however, is a long way from the situation of, for example, the crime boss who enters into an agreement with his loyal underlings to murder a rival. The underlings are to do the job; the boss is to do nothing. No payments are made. No favours are promised. Indeed, the only element which bears even a passing resemblance to consideration is the unstated promise of extreme prejudice if the wishes of the boss are not fulfilled.
[34](1990) 90 Cr App R 340, 348.

This, as Lord Bridge of Harwich would surely accept, is a criminal conspiracy. It involves the commission of an offence by only one of the parties, while the other lifts not a finger; but the legislation specifically allows for that by its reference to ‘the commission of an offence by one ... of the parties to the agreement’.

In his judgment in Siracusa,[35] O’Connor LJ said of the passage quoted at [67] of this judgment that it ‘must be read in the context of [Anderson’s] case.’ His Lordship continued:

We think it obvious that Lord Bridge cannot have been intending that the organiser of a crime who recruited others to carry it out would not himself be guilty of conspiracy unless it could be proved that he intended to play some active part himself thereafter.

[35](1990) 90 Cr App R 340, 349.

Academic writers have taken the same view. David Ormerod,[36] having first noted that no authority was cited for what he referred to as ‘this novel dictum’, went on to record that ‘the Court of Appeal [in Siracusa] has subsequently held that Lord Bridge is not to be taken as saying what he plainly did say’; and Andrew Ashworth[37] has described Lord Bridge’s proposition as appearing:

… to run counter to one of the rationales of conspiracy, which is to bring those who plan offences but do not take part in them (the godfathers) within the ambit of the criminal sanction. The … proposition was later reinterpreted by the Court of Appeal in Siracusa so as to mean the opposite of what the House of Lords said: a passive conspirator who concurs in the activities of the person(s) carrying out the crime without becoming involved himself is guilty of criminal conspiracy.

[36]David Ormerod, Smith and Hogan’s Criminal Law (Oxford University Press, 12^th ed, 2008) 415.

[37]Andrew Ashworth, Principles of Criminal Law (Oxford University Press, 4^th ed, 2003) 464.

I agree, with respect, with these views. In my opinion, a conspiracy may exist where only one conspirator is to be actively involved in the execution of the criminal design, so long as at least one other person, having a stake in the outcome, has committed himself or herself to the scheme and has thus conferred on the first person authority to do - as the agent of the inactive party - that which the scheme envisages. This, it seems to me, accords with the rationale for the creation of a separate crime of conspiracy. It is the fact that a number of persons join in a pact or agreement that a criminal enterprise be undertaken, each having a stake in the success of that enterprise, which creates the danger which the law prohibiting criminal conspiracy is designed to avoid.

The applicants submit that the words ‘a course of conduct shall be pursued’ which appear in the legislation are unnecessary if Parliament had intended that criminal liability would attach where a person simply agrees with another that the other will commit an offence. I disagree. Had Parliament wished to confine liability for criminal conspiracy to those parties to the relevant agreement who are to play a part in the agreed ‘course of conduct’, it could have provided that the offence would be limited to a situation in which one person agrees with another or others that they will together engage in a course, or part of a course, of conduct. More particularly, the phrase ‘that a course of conduct shall be pursued’ is not designed to signify that each party should play some part, however small or however distant, from the end result. Its purpose is to make it clear that, if the agreement involves a course of action which will in fact give rise to the commission of an offence, it does not matter that the parties do not know that a breach of the criminal law will occur. Knowledge of the law on the part of the accused is immaterial. If what the alleged conspirators agreed to do was, on the facts known to them, an unlawful act, they cannot excuse themselves by saying that, owing to their ignorance of the law, they did not realise that it was a crime.

In the passages from the charge to which I have referred above, the trial judge repeatedly emphasised the requirement that, before reaching a verdict of guilty, the jury had to be satisfied beyond reasonable doubt that each applicant intended to agree with the other that Patrizia Rolls be murdered; and that the relevant intention had to include an intention, common to both, that one or other or both would follow through with that plan, and that Ms Rolls would die as a result. As I read the charge, his Honour did not tell the jury that they should ask themselves whether Sleiman, as her share of her bargain with Rolls, promised to join him as his domestic partner; but, if no such instruction was given by the judge, no exception was taken to that omission either at the time or on this application. And there was evidence enough to justify a finding beyond reasonable doubt that an agreement of the relevant kind, described by the judge in terms which in my opinion admitted of no misunderstanding, had been reached.

For these reasons, none of the grounds upon which Rolls seeks to rely are on his appeal against conviction are made out. Insofar as Sleiman also relies upon them, that reliance is of course likewise misplaced. It was, in my opinion, open to a properly directed jury to find beyond reasonable doubt that the conversation of 16 January 2008 evidenced an agreement to pursue a course of conduct involving the commission of an offence. Nor did the trial judge err in law in giving directions to the jury about what is necessary to establish participation in a conspiracy. And finally, the trial judge did not err by failing to direct the jury that each accused must have intended to play some part in the course of conduct to which the parties agreed.

Sleiman’s separate proposed grounds

There remain the separate grounds upon which Sleiman seeks to rely. As noted above, these are:

(i)that the learned trial judge misdirected the jury by instructing them that they had to be satisfied as to the guilt of both the co-accused before they could find either of the co-accused guilty leading to a substantial miscarriage of justice;

(ii)that the learned trial judge erred in failing to adequately instruct the jury as to the evidence admissible against the applicant;
(iii)that the learned trial judge erred in failing to adequately instruct the jury as to the evidence inadmissible against the applicant.

The relevant passages from the charge are reproduced in paragraphs [56] and [57] above. They demonstrate, it seems to me, that his Honour did not err in his directions to the jury. Sleiman complains that, if the jury did what the judge told them to do and, in examining the case against Rolls first, found him guilty on the evidence admissible against him, they would then be incapable of objectively examining the evidence against Sleiman. Having been told that Rolls could not be found guilty unless he was a party to an agreement with Sleiman to murder Patrizia Rolls, the guilty verdict in Rolls’ case could not be put aside in the minds of the members of the jury when they turned to consider separately the case against her. The jury, the argument for Sleiman goes, would already have made up their minds about her guilt.

I do not agree. The jury were told repeatedly, in the clearest terms, that they were not to find one accused guilty on the basis that they had found the other guilty; and, indeed, if they concluded, initially, that one was guilty, it did not follow that the other was as well. They were to look at the case against the other, and if that other was not guilty, then both would necessarily be acquitted, despite that preliminary view. In other words, the jury would in my opinion have understood that if, for example, they considered the case against Rolls first, and found to their satisfaction beyond reasonable doubt that he had (so far as he was concerned) entered into an agreement with Sleiman for the murder of his wife, they would then – and only then - consider the case against Sleiman. In doing so, the jury would understand that they might not be satisfied beyond reasonable doubt that she had entered into the same agreement as that which Rolls thought he had with her – or indeed any relevant agreement at all. And if at the end of their deliberations, that was their state of mind, both accused would necessarily be found not guilty. If they considered the case against Sleiman first, they would likewise not consider the case against Rolls unless and until they had formed the view that she was guilty (but subject always to her being found not guilty, as of necessity, if Rolls were acquitted).

In her written submissions, Sleiman complains that the trial judge failed to tell the jury ‘specifically’ that certain evidence related only to Rolls, and could not be used against her. And in oral submissions put on her behalf it was contended that that evidence warranted a jury direction to the effect that they could, on the basis of it, find Rolls guilty while acquitting Sleiman. The evidence admissible against Rolls was, according to Sleiman, more damning than the evidence admissible against her. Hence the necessity for an instruction along the lines of those for which Sleiman contended. With such an instruction, the danger envisaged by Sleiman would have been avoided. That danger, as postulated in submissions put on her behalf, was that the jury would be tempted to ignore the direction to acquit Rolls if they thought that he was guilty but that Sleiman was not; and, having yielded to that temptation, would convict him, and would then feel constrained by the judge’s direction to convict her as well. This danger would have been averted had the jury been directed that they could convict Rolls even if they found Sleiman not guilty. They would not then be tempted to convict her simply because they did not want him to escape.

In the absence of such an instruction, however, the danger to Sleiman of a denial of justice would be, and was, real.

Rolls, it was submitted, had a greater motive for killing his wife than Sleiman had for wanting her dead. Rolls stood to gain from life insurance taken out on Patrizia’s life. Sleiman did not. He had had a number of affairs, which put a strain on the marriage. He had taken a sudden and unexplained interest in how his wife maintained the books of their business, a skill which at that point he did not have and for which he then depended upon her. There was evidence that he had, in preparation for her murder, taken her to the beach where it was to take place. And he had said things after she disappeared which could implicate him but not Sleiman. There was therefore (or so Sleiman contended) a basis upon which the jury could distinguish in their verdicts between his conviction and her acquittal. But the judge did not instruct the jury that this was so.

Reliance was placed upon The Queen v Darby.[38] In that case, a jury had been satisfied that John Darby and Leonard Thomas had conspired to commit armed robbery. Thomas appealed, and his conviction was overturned. Darby himself then appealed, the sole ground being that, according to the prosecution, the conspirators were two - Thomas and Darby - and no-one else; and, accordingly, once the conviction of Thomas was overturned, there could be no conspiracy of which Darby could be guilty.
[38](1982) 148 CLR 668.

Darby’s appeal succeeded in the Full Court of the Supreme Court of Victoria sitting as a Court of Criminal Appeal, but the Crown successfully appealed to the High Court. The Court accepted that ‘[t]he agreement of minds is an essential element of the offence of conspiracy.’[39] But where the conviction of one accused proceeds upon evidence admissible against that accused - evidence which is very much stronger than that admissible against the other - there is no necessary inconsistency between the conviction of the former and the acquittal of the latter. An accused is entitled to be acquitted unless the evidence satisfies the jury beyond reasonable doubt that he or she is guilty. A verdict of not guilty in relation to an alleged conspirator is therefore not necessarily a finding that the conspirator is innocent; only that the prosecution has not proved beyond reasonable doubt that he or she is guilty. That being so, a verdict that one conspirator is guilty can stand with a verdict that the other accused is not guilty. Indeed, in a case ‘where the evidence against A is overwhelming, a jury which is directed that they must either convict or acquit both may find it practically impossible to sustain and act upon a reasonable doubt on the evidence admissible against B.’[40]
[39]Ibid 671 (Gibbs CJ, Aickin, Wilson and Brennan JJ, Murphy J dissenting) .
[40]Ibid 677.

This case, however, is not one to which the Darby analysis applies. In the latter case, there was evidence of admissions made by Darby to the police which, if accepted by the jury, established that the object of the conspiracy was armed robbery. Thomas, on the other hand, had not made any such admissions. It was therefore logically possible to justify both Thomas’ acquittal and Darby’s conviction. In the present case, the evidence against Rolls is not so much stronger than the evidence against Sleiman that a relevant analogy with Darby can be made. The critical evidence against both is to be found in the conversation in which the conspiracy was consummated. That conversation is, unusually, in evidence. In the circumstances of this case, the conviction of Rolls would be inconsistent with the acquittal of Sleiman – and vice versa.

Application for leave to appeal against sentence: Rolls

Rolls relies upon but one proposed ground of appeal against sentence: that the 11 years’ imprisonment imposed upon him, with a direction that he serve 8 years before being eligible for parole, is manifestly excessive.

Given that the maximum punishment for conspiracy to murder is life imprisonment, and given that the conspiracy in which Rolls engaged was to murder his loyal spouse, 11 years’ imprisonment does not on first impression appear to be manifestly excessive. It is submitted, however, that current sentencing practices would have it so.

The Crown responds by pointing out, accurately, that current sentencing practices are difficult to ascertain. The Sentencing Advisory Council has published no sentencing statistics for this crime. Moreover, Rolls’ counsel have unearthed only four cases since the turn of the century. All of them involve gangland activity. One offender was sentenced to a mere three years, but only after he both pleaded guilty and gave an undertaking to give evidence against his co-offenders.[41] The others were sentenced to terms of imprisonment of, respectively, 13[42], 20[43] and 25[44] years.
[41]R v XX [2004] VSC 323.
[42]R v Hildebrandt [2004] VSCA 142.
[43]R v Sonnet [2008] VSC 221.
[44]R v Williams [2007] VSC 131.

It is difficult, in these circumstances, to point to a sentence of 11 years’ imprisonment as beyond the range reasonably open, so far as it depended on current sentencing practices.[45] The difficulty is compounded if one refers to the cases of R v Joseph,[46] R v Tizzoni[47] and R v Bazley.[48] All three offenders pleaded guilty to conspiracy to murder the Griffith businessman Donald Mackay. The first two were sentenced on 8 October 1984; Joseph to four years’ imprisonment, Tizzoni to five. Bazley was on 16 April 1986 required to serve nine years. But the maximum penalty for this crime was then ten years’ imprisonment, so each conspirator received a greater proportion of the maximum than did Rolls, although the comparison is distorted by the fact that the prison regime then incorporated provision for remissions.
[45]Hasan v The Queen [2010] VSCA 352 [44]-[52].
[46]Unreported, Supreme Court of Victoria, Gobbo J, 8 October 1984.
[47]Unreported, Supreme Court of Victoria, Gobbo J, 8 October 1984.
[48]Unreported, Supreme Court of Victoria, Gray J, 16 April 1986.

In my opinion, the sentencing judge in this case had no current sentencing practices against which to determine an appropriate sentencing range. Sentences for attempted murder, a crime which in some respects is comparable, cannot be of real assistance because that crime carries a different maximum penalty (25 years’ imprisonment as against life). And to the extent that it may provide a relevant guide to a workable range, Sentencing Advisory Council data reveals that the median sentence for attempted murder in the period 2001-02 to 2005-06 was 11 years’ imprisonment.[49] Given the lower maximum, that figure gives no support to the claim that the sentence imposed upon Rolls was manifestly excessive.
[49]Sentencing Advisory Council Sentencing Snapshots No 21: Sentencing trends for attempted murder in the higher courts of Victoria 2001-02 to 2005-06 January 2007.

Rolls argues, nevertheless, that in determining upon that sentence his Honour must have somehow distorted the process of instinctive synthesis, because he made it clear that he regarded the criminality of Rolls as very grave - when in fact a proper analysis would show that it was, in the scale of conspiracies to murder, a relatively minor example.

I agree with the judge that this was a serious, if not (as he characterised it) ‘particularly serious’ instance of that offending. Conspiracy to murder is, necessarily, a serious offence. This conspiracy illustrates the point. It was, despite the arguments to the contrary, a joint enterprise. Being a joint enterprise, it had that characteristic which makes conspiracy a crime; it transformed the evil intentions of a sole practitioner into the more dangerous common plans of two like-minded people. And that is true even though Sleiman was not herself to play any physical part in the murder. She had, in effect, appointed Rolls as her agent to do for her what she could not do for herself. The fact that she joined with him in putting together the alternative beach and hiking plans, provided her encouragement and support, and supplied a deal of Rolls’ incentive to act against his wife, makes the point that, as a general proposition, a conspiracy is inherently a more dangerous creature than the wholly unexecuted plan of an individual.[50] And this conspiracy incorporated a special element of evil in that it envisaged the death of a spouse who deserved comfort and companionship. I agree with his Honour that this was an aggravating factor. It took the offending into a serious example of its class. Indeed, I would not cavil with his Honour’s description of it as particularly serious.
[50]DPP v Fabriczy [2010] VSCA 334 [14]-[16].

In my opinion, Rolls’ application for leave to appeal against sentence should be refused.

Application for leave to appeal against sentence: Sleiman

Sleiman maintains (proposed ground of appeal 1) that her sentence is manifestly excessive. She also claims that, in the imposition of the sentence, the sentencing judge had insufficient regard to her mental health (proposed ground 2); and that his Honour was in error in finding that her psychological condition ‘did not directly affect her decision to participate in the agreement as there was no admissible evidence warranting this finding’ (proposed ground 3). The final ground on which Sleiman proposes to rely is that his Honour ‘erred in failing to impose a sufficiently disparate sentence to that which was imposed upon the co-accused Rolls.’

Some conspiracies to commit murder are particularly heinous: mafia conspiracies to murder the mafia’s honest pursuers is an example. Others encompass a much lower order of criminality: a plan to kill an evil oppressor would be such. This conspiracy falls between the two. It clearly lacks the gravity of the worst cases; yet I agree with the sentencing judge’s description of it as ‘vile’ and ‘evil’. It was motivated by pure selfishness. And even though she herself owed Patrizia Rolls little more than the respect which every human owes to every other, Sleiman must have appreciated that its proposed victim deserved from her husband affectionate protection rather than the extreme opposite. This consideration links her level of criminality with his, though hers remains at a lower level.

Set against these circumstances, a sentence of 9 years’ imprisonment is in Sleiman’s case far from being manifestly excessive. Proposed ground 1 is therefore not made out. And proposed ground 4 must fall as well. Two years differential in the respective terms of imprisonment adequately reflects, in my opinion, the different degrees of criminality, as well as the features each have in common. Each, as the judge recognised, will find prison harder to bear than would the generality of offenders, though the reasons why this is so differ as between them. As his Honour also recognised, Rolls was the instigator and principal planner. But having at this point given appropriate recognition to the differences in culpability, the judge in my opinion translated, in a similarly appropriate way, those differences into differences in the two terms of imprisonment which he imposed. Others may have reached a somewhat different conclusion about this aspect of the case; but it was within his Honour’s discretion to decide between them as he did, and no error of principle can be discerned in the judge’s exercise of that discretion.

There remain proposed grounds 2 and 3: that, in the imposition of the sentence, the sentencing judge had insufficient regard to Sleiman’s mental health; and that, in finding that her psychological condition did not directly affect her decision to participate in the agreement, his Honour was in error because there was no admissible evidence upon which this finding could properly be based.

It is clear that, whether or not the judge had insufficient regard to Sleiman’s mental health, he did not ignore it. As Sleiman herself acknowledged, the judge took into account her attempted suicide following Rolls’ announcement in October 2007 that the relationship between them was over. His Honour described her as then suffering from major depression, insomnia and anxiety. On the other hand, when on 18 January 2008 she saw a social worker, Alisoun Robertson,[51] she was (as Ms Robertson noted in a report dated 17 April 2009 which was tendered on the plea hearing) ‘currently well’.[52] Moreover, as his Honour found, it was:

... clear, on the evidence, that your [Sleiman’s] psychological condition did not directly affect your decision to participate in the agreement with Rolls to murder Patrizia Rolls. As I have stated, the evidence of Ms Robertson is to the contrary. Furthermore, the tone of the telephone conversation between you, Sleiman, and Rolls on 16 January militates against any suggestion that, at that time, your psychological condition clouded or affected your capacity to judge that what you were then doing was wrong.[53]

[51]Ms Robertson has a Masters Degree in Psychoanalytical Studies (it seems from Monash University) and is a clinical member of the Victorian Association of Family Therapists.

[52]Reasons for sentence [37].

[53]Ibid [41].

According to Sleiman, Ms Robertson was not qualified to give this evidence, which in any event did not support the conclusions which the judge drew from it.

Ms Robertson was called by Sleiman as her witness on her plea. The two had first met in November 2004, at a time when Sleiman sought Ms Robertson’s clinical assistance following an incident in April 2003, during which Sleiman had been attacked and falsely imprisoned by a man (not Rolls) intent on sexually assaulting her. Ms Robertson thereafter acted as a consultant to Sleiman on a fortnightly basis until June 2005. She saw her again in January 2006 and in June that year, and on 18 January 2008 (two days after the conversation of 16 January during which the conspiracy was consummated). The two then continued in a patient/consultant relationship up to at least the day of the plea (22 May 2009). The consultant therefore knew the client well - not only at the time of the pleas, but also in January 2008.

In her report of 17 April 2009, which she adopted when giving oral evidence at the plea hearing a month later, Ms Robertson described Sleiman as having a ‘somewhat histrionic personality’ with ‘elements of a post traumatic stress disorder’. This was the product of a number of factors in a far from fortunate life: the difficulties of her arranged marriage as a teenager; the removal of her son (born when she was still a teenager) from Australia to her husband’s family in Lebanon; her mistreatment by her husband and her father; and the horrific incident of which she was the victim in April 2003. The result was a fragile woman who ‘would become very dramatic if she is stressed.’

Despite this, in her oral evidence Ms Robertson repeated the assertion, made in her April 2009 report, that Sleiman was on 18 January 2008 ‘currently well’. Thus, during the course of her evidence on the plea, she described Sleiman’s health on that day in the following terms:

When I saw her, she was quite well, I thought at the time …
…
I was very concerned when I first saw her in January, in fact, not the first time, because she was quite well, but subsequent to that, after the arrest, I was very concerned because I thought she wasn’t on adequate medication.

It was the evidence of her psychological frailty which formed the basis of a submission, put during the course of the plea, that Sleiman was ‘someone who, in circumstances, might be prone to making more rash decisions than otherwise would be the case. … I would simply be asking your Honour to look at her from a sentencing point of view in that light’. And in submissions made to this Court, it was contended that the judge ought to have used her psychological frailty in two ways – both of which would, if adopted, have been to her advantage. First, the judge ought to have found that Sleiman’s mental health was such that prison would be so especially hard for her as to dictate a lesser sentence than the nine years’ imprisonment which his Honour imposed. Secondly, his Honour ought to have concluded that she had a reduced ability to evaluate properly the choices she faced when Rolls put his plan to her; and, with that lowering of capacity, came an equivalent lowering of moral culpability for the choice she made. And he ought not to have found that on 18 January 2008 she was ‘well’.

In my opinion, the last finding was entirely justified on the evidence which Sleiman herself called. As for the effect of her health on her time in prison, his Honour took that into account. In his reasons for sentence he explicitly concluded that she would:

… find a period of imprisonment more burdensome than would a person in a more healthy psychological state. That evidence requires me to moderate the period of imprisonment to which you are to be sentenced, by some reasonable degree.[54]

[54]Reasons for sentence [46].

His Honour also accepted that Sleiman’s:

… psychological problems are a relevant background to your offending, in that your sense of insecurity concerning your relationship with Rolls made you more readily disposed to participating in the criminal agreement for which you were convicted.

This was as much as counsel for Sleiman sought in the submissions put to the judge on this point on the plea. It was all he could reasonably have sought. In my opinion, his Honour was correct in concluding that Sleiman:

… well understood the nature of what you were doing. Your capacity to judge and understand the enormity of what you were planning was intact. It is clear, from the conversation which you had with Rolls on 16 January, that you knew what you were then planning was wrong and unlawful. Thus, you both took steps, before that conversation, to ensure that it would not be traced, and you both took care, during the conversation, to ensure that it was not being overheard.

The final complaint is that his Honour was not justified in relying, in part, on the tone of the 16 January conversation, for the conclusion that Sleiman’s psychological condition did not cloud her capacity to judge that what she was doing was wrong. But there is, in my opinion, nothing in this complaint. The judge did find that Sleiman’s moral culpability was compromised, to an extent, by her psychological state; there is no suggestion that his Honour reduced, by reference to her tone of voice, the weight he gave to this finding. And nor could there be any doubt of the correctness of his Honour’s finding that Sleiman was in a position to understand the criminality involved in her agreement with Rolls.

Sleiman’s application for leave to appeal against sentence must therefore fail.

I would, in the case of each applicant, refuse each application.

- - -

Citations

Rolls v The Queen; Sleiman v The Queen [2011] VSCA 401

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[2011] VSCA 401

1 December 2011