Romeo v The Queen; Ricciardello v The Queen

[1991] HCATrans 72

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth Nos Pl0 and P9 of 1990

B e t w e e n -

RALPH ROMEO and ANTHONY SERGIO

RICCIARDELLO

Applicants

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J
DAWSON J
TOOHEY J

McHUGH J

Romeo 1 13/3/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 MARCH 1991, AT 10.16 AM

Copyright in the High Court of Australia

MR R. RICHTER, QC:  May it please the Court, I appear with

my learned friend, MR O.P. HOLDENSON, for the

applicant Romeo. (instructed by Pryles & Defteros)

MS L. LEIDER:  May it please the Court, I appear also with

my learned friend, MR O.P. HOLDENSON, for the

applicant, Ricciardello. (instructed by Pryles &

Defteros)

MR R.J. DAVIES, OC: If the Court please, with

MR J.A. SCHOLZ I represent the Crown in this

matter. (instructed by the Commonwealth Director

of Public Prosecutions)

MASON CJ: Yes, Mr Richter.

MR RICHTER:	May it please the Court, the applicants Ricciardello and Romeo were convicted together with
a third person by the name of Marinovich upon two
counts of conspiracy.  Does the Court have the
outline of submissions?  We have handed those up.

MASON CJ: Yes, I had not realized they had been handed in,

Mr Richter.

MR RICHTER:  Thank you, Your Honour. Three persons were

convicted of a three-headed conspiracy. The

allegation was that Marinovich, Ricciardello and

Romeo conspired together - to put it in brief - to

possess for sale or supply contrary, it was said,

to section 33(2) of the Misuse of Drugs Act in

Western Australia.

It is important for the Court to appreciate

that the convictionsl and indeed the trial, arose

out of a series of tape recorded meetings that were

conducted at the home of the man Marinovich. There

were five conversations.	To the first two all
three men were parties.	To the last three

Marinovich and Ricciardello were parties, although

that does not bear upon the issue because the jury

must have found, and we are happy to approach it on

the basis, that Ricciardello was acting on behalf

of Romeo for the purposes of argument.	So nothing
really turns on who was present at the conversations.

The fact is the conversations were there, and

the Crown put its case essentially on the basis

that this is a rather unique case. You do not

often have the opportunity of having the actual

evidence of the actual agreement, and the Crown

relied on the content of the conversations against

all three to prove that they all three conspired to

possess for sale or supply and to prove that all

three had agreed on all the essential elements

required.

Romeo 2 13/3/91

Now, one thing that has to be noted at this

stage to put the case in context is this: nothing

happened. No one got any heroin. Any particular

source of heroin was never identified. There was a

lot of to-ing and fro-ing between the three in the
first two conversations and the two in the last

three conversations, about what is going to be

done, what is not going to be done and so on, and

essentially the defences of Ricciardello and Romeo

were that there was no finality. There was no real

agreement reached.

The fact is, on the evidence, police waited

and waited and waited after the conversations,
nothing happened. In the end arrests were effected

and the charges were laid. So, there were no drugs

that were shown to exist. There were no drugs

seized, there were no drugs purchased. There was

an allegation in a third count against the man,

Marinovich, that going on something that he had

said in one of the tapes he had, in fact, obtained

four ounces of heroin but he was acquitted of that.

There was a no-case submission which was made

in which it was argued, amongst other things, that

it was no offence shown unless someone was shown to

be in possession and by that we mean someone of the

conspirators or parties to the agreement.

The applicants were all three convicted on

this three-headed conspiracy. They all appealed to

the Court of Criminal Appeal on grounds which for

Ricciardello and Romeo became amended subsequently

and so on, but for present purposes the relevant

grounds were that there was essentially no

sufficient evidence upon which the three could be

lawfully convicted on the tripartite conspiracy,

there were simply none. There was no hypothesis by

which a reasonable jury could find that that was

the agreement, that it was a three-headed

agreement. Essentially, that proposition rested on

the basis that the evidence was common to all

three, in other words, the tape recordings - all
five conversations - were equally admissible
against all three, although the last three
conversations become admissible as against Romeo,
who is absent on the preconcert basis as an

utterance and furtherance.

The evidence was all equally admissible and

the real question, and only question, was, on the

evidence, could one prove a tripartite conspiracy

such as the one alleged and such as the one that

was driven home to the jury.

BRENNAN J: Is that not the very question, though, whether

it could prove a tripartite conspiracy or whether

Romeo 3 13/3/91

it could prove a conspiracy to which two or more of

the accused were parties?

MR RICHTER: 

The question might have been that, if the

question had been posed, "Can you prove, as against
the two, that their agreement was to join a

tripartite conspiracy? Can you prove against the

two? Assuming you have an insufficiency of

evidence to prove against one of the three, that
his agreement was to be a party to the tripartite

agreement. If you had sufficient evidence

to - - -"

BRENNAN J: 

Does this not rather highlight the problem of

defining what the conspiracy is, what are the
incidents which identify the conspiracy?

MR RICHTER:  Yes, Your Honour. In this particular instance

the incidents that identified the conspiracy were

the tape recorded conversations.

BRENNAN J:  No, that is the evidence?

MR RICHTER: That was the evidence.

BRENNAN J:  If you wish to describe the conspiracy you must

describe it by reference either to the parties or

to its content or to both.

MR RICHTER:  Yes. And the conspiracy that was run before

the jury was described both as to its parties as a
three-headed conspiracy; as to its content as a

three-headed conspiracy and went to the jury on

that basis and the jury determined it on that

basis.

DAWSON J:  You put it a little differently, do you not? say that the conspiracy was an agreement to possess You

drugs with a certain intent which were supplied by

Marinovich.

MR RICHTER:  Which Marinovich acquired and would hand on to

Romeo and Ricciardello.

DAWSON J:  The agreement between the two who were convicted

was an agreement, not just to possess drugs but to

possess drugs which became part of the agreement

via Marinovich's involvement.

MR RICHTER: Yes, and the agreement as alleged was that

Marinovich would put the other two in possession but that they all agreed that they all be to that

extent, in some way, jointly possessed when it

came - - -

Romeo 4 13/3/91

DAWSON J: There was interaction between the three of them

and when Marinovich disappeared there was no

agreement.

MR RICHTER: That is right and the further element upon

which it was - - -

DAWSON J:  I put that badly, but when, for our purposes,

Marinovich disappeared from the so-called

conspiracy then the conspiracy fell to the ground

as it were.

MR RICHTER:  Yes. It was not so much a matter of

disappearance as in cessation of activity

DAWSON J:	No, no.
MR RICHTER:	- - - once you determine on the evidence which

is equally admissible against all three that

Marinovich is not a party to a tripartite agreement

on the evidence, in other words, that there is no

tripartite agreement as to each element which

includes the notion of agreeing to supply to

another and the reason the Court of Criminal Appeal

found that he was not a party to it was that on the

evidence what he agreed was to supply them and

whilst he might have foreseen that they would

supply to another that was not part of his

agreement, therefore there was no tripartite

agreement.

That is, in effect, what the Court of Criminal

Appeal finds, there was no tripartite agreement and

what the Court of Criminal Appeal did was to

substitute a two-party agreement, that is, both

between Ricciardello and Romeo, the applicants

herein, to acquire possession and to sell or supply

to another.

DAWSON J: There is nothing wrong with that if the third

party is not essential to that particular

agreement.

MR RICHTER: That is right, with respect, of course.

DAWSON J:  I mean a conspiracy with persons unknown is

frequent enough.

MR RICHTER:  Of course. The only problem is it was

essential here	in the way the case was pleaded and
the way it was	run and what it was the jury
determined.

DAWSON J: That, as Justice Brennan points out, is what you

have got to make out, that it was essential.

Romeo	13/3/91
MR RICHTER:	Yes, and, indeed, that is what our summary of

submissions relating to grounds 1 and 2 are

intended to do by drawing the Court's attention to

some references. But could we, before we go to

that summary, say this: one thing is clear, the

jury convicted all three of a three-headed

agreement, not of a two-headed agreement. It found

that all three were parties to an agreement which
the court subsequently found the jury could not

have found. And in substituting convictions for a

two-party agreement, that reversed the whole

way - - -

DAWSON J:  I will not interrupt any more but does that

follow? I mean, it was essential to the agreement

between Ricciardello and Romeo that there be an

agreement to supply - - -

MR RICHTER:  To another.

DAWSON J: - - - heroin, was it?

MR RICHTER:  Yes, that was the allegation.

DAWSON J: But it was not essential to the agreement between

them that the supplier should have the same intent

as they had and, in that sense, Marinovich was not

essential to their conspiracy. That is the other

side of the coin.

MR RICHTER:  That is the other side of the coin but it was

never a side that was run, that Marinovich was not

essential to the conspiracy, because the agreement
alleged was that they all three agreed that it be

sold to another.

DAWSON J: All right, and so it was found against two that

one aspect of the allegations was made out and

against one that it was not.

MR RICHTER:	No, what was found against the two was that there was an agreement between the two that they	supply or sell to another, not that there was an
agreement between the three.  And so, what the
Court of Criminal Appeal did was - - -

DAWSON J: That does not matter, does it?

MR RICHTER: In our respectful submission, it does because

what it means is that since there has to be

agreement on all the essential elements the Court
of Criminal Appeal convicted Ricciardello and Romeo

of a two-headed conspiracy with which they were

never charged.

BRENNAN J:  No, the Court of Criminal Appeal did not convict

them of anything.

Romeo	6	13/3/91
MR RICHTER:	I am sorry, retained their conviction.	The

Court of Criminal Appeal did make a finding, essentially, on the evidence commonly admissible against all three, the only real evidence of the

agreement, the taped conversation.

DAWSON J: In any event, that is not right. It was a three-

headed agreement. There was an agreement between

the three of them that heroin should be supplied by

one to the other two but it was just that the

necessary intent as to what they were to do with

the heroin did not exist in the case of one but

existed in the case of the other two. It is not a

two-headed agreement at all, it is just intent on

the part of two was lacking on the part of one.

MR RICHTER:  If that intent was lacking on the part of one

then he was never a party to a three-headed conspiracy, not because of insufficiency of

evidence against him - - -

DAWSON J: That begs the question, a three-headed

conspiracy.	He was a party to a three-headed
agreement.	In his case it lacked the criminal
element.

MR RICHTER:  Yes, but the three-headed agreement to which it

could be said that he was a party, was a

three-headed agreement to put the other two into

possession; not a three-headed agreement to

possess for sale or supply to another, and that

"another" has to be someone outside the

conspirators. Therein lies the problem of which we

complain and why we say the Court of Criminal

Appeal, in effect, ~eached inconsistent

conclusions.

DAWSON J:  We know the parameters of the argument now.

MR RICHTER: Yes, Your Honour.

BRENNAN J:  Mr Richter, it seems that you are basing your

argument on the conclusions reached by the Court of

Criminal Appeal. If special leave were granted in

this case it would be the function of this Court to

reach the decision, in the case of the two present

applicants, which ought to have been reached by the

Court of Criminal Appeal.

MR RICHTER: Yes, Your Honour.

BRENNAN J:  So that we are not bound by anything that the

Court of Criminal Appeal has said with regard to

those two.

MR RICHTER: With respect, we entirely agree with that.

Romeo	13/3/91
BRENNAN J:	So that in order to make good your application

for special leave you must show, basing yourself
upon the trial, that there is some vitiating
circumstance in the conviction which warrants the

grant of special leave.

MR RICHTER:  Yes, Your Honour. I am not too sure that we

entirely agree with that proposition in this sense:

the jury reached verdicts that were internally

consistent. What we complain of is that with the

quashing of the conviction and the acquittal of

Marinovich and the dismissal of the applications by

the other two, the Court of Criminal Appeal was

wrong in that it necessarily failed to have a

consistent outcome.

What we say as far as the trial process itself

is concerned is, in effect, what the Court of

Criminal Appeal did find and that was that on the

evidence it really was not open to find a

three-headed conspiracy where all three are agreed

as to all the elements; where all three are in

agreement that the three of them will possess in

some sense and that the three of them have the

joint purpose to sell or supply to another.

Now, we say that the jury could not have found

that in the first place. We say that the Court of

Criminal Appeal in fact endorses that proposition

by what it did with respect to Marinovich but that

it then went on to misapply the concepts in Darby's case and to overlook the fact that the evidence was

identical.

TOOHEY J: Mr Richter, could you test it this way? If all

three appeals had been dismissed by the Court of

Criminal Appeal, would any of the present grounds

of appeal be relevant?

MR RICHTER:	If all three appeals had been dismissed on the basis that there was sufficient evidence to uphold
the tripartite agreement, as it were, then
grounds 1 and 2 would have come to this Court by
way of a special application saying there was not, or might have come.

TOOHEY J: That is quite a different argument, is it not?

MR RICHTER: Yes, Your Honour. Essentially, what we are

complaining, if I could put it this way, is the

unfairness of the inconsistent determinations by

the Court of Criminal Appeal. One the one hand, to

find that there was no evidence of a three-headed
conspiracy which, we would submit, required that

they quash the convictions of Ricciardello and

Romeo and, on the other hand, by a misconstruction

of Darby to say that Marinovich is acquitted

Romeo 13/3/91

because of insufficiency of evidence against him

but that there is a sufficiency of evidence against

the others. The sufficiency of evidence against

the others, to which the Court of Criminal Appeal

refers, is really a sufficiency of evidence of two

people agreeing with a third to obtain possession

from the third, but two people agreeing to on-sell to another, not three people agreeing, and if that

is right then, in our respectful submission, the

judgment of the Court of Criminal Appeal must be

set aside, with respect, to the applicants. There

was never a cross-appeal by the Crown, with

respect, to Marinovich which asserted that the

Court of Criminal Appeal was wrong about the

non-existence of a sufficient case of a
three-headed conspiracy such as the one I have

outlined.

BRENNAN J:  Do you say that Marinovich could never have been

convicted had the allegation been that the

conspiracy was that Marinovich should obtain the

"pink rock", or whatever it was called, to enable

Riccciardello and Romeo to have it in possession with the relevant intention on their part?

MR RICHTER:  If it was no part of his business, other than

foresight, that that is what they might do with it.

BRENNAN J:  No, the proposition I put to you is, was it

possible for a conviction to stand against

Marinovich if that had been the identified

conspiracy?

MR RICHTER:  I am sorry, Your Honour.

BRENNAN J: Let it be assumed that Marinovich did not have

any relevant intent.

MR RICHTER: Yes, sir.

BRENNAN J: Let it be assumed, however, that there was an

agreement that the pink rock should be obtained by

Marinovich and held in possession by Romeo and

Ricciardello with the intent.

MR RICHTER:	If Marinovich agreed that it be held by them and that it be held by them with the intent, that
makes him a party to a three-headed conspiracy to
supply another because he joins the purpose of
supplying the heroin to another and if there had
been sufficient evidence of that, his conviction
could have stood on that.
BRENNAN J:	I see.
MR RICHTER:	The real problem is one of the inherent unfairness in what happened, in our respectful

Romeo 9 13/3/91

submission, in the way that the matter was
disposed. Marinovich is acquitted - end of story
for Marinovich. Ricciardello and Romeo stand

convicted on a basis which is inconsistent with

that acquittal on the judgment.

TOOHEY J: Why is it inconsistent, Mr Richter? For

instance, does it follow from your argument that if

two or more persons are charged with conspiracy of the sort that is charged here, if one is acquitted

by the jury or a conviction against one is set

aside, it must inevitably follow that the other two

cannot stand convicted of the same conspiracy?

MR RICHTER:  No, not at all. And Darby is really a case

that adverts to the problem both ways. In other

words, the facts in Darby are very interesting and

very illuminating and in a moment I will try to
expand on the hypothesis of three people agreeing
in a Darby situation.

Darby and a man called Thomas were charged with a conspiracy to commit an armed robbery.

Darby had confessed. In other words, he said,

"Yes, what we were about, what Thomas and I were

about was we were going to commit an armed

robbery." Thomas declined to answer questions. So

there was no evidence admissible against Thomas of

what the agreement was.	Thomas and Darby were
convicted by the jury.

Thomas applied to the Court of Criminal Appeal

on his own on the basis that the evidence could
never disclose that the agreement alleged against

him with Darby was to commit an armed robbery, as

against a murder or as against a kidnapping or as

against anything else. In other words, those

hypotheses not being excludable by the evidence he

could not be convicted of a conspiracy with Darby

to commit an armed robbery. The Court of Criminal

Appeal upheld that and quashed his conviction and

entered an acquittal.

Darby then decided that he would have a go and he appealed to the Court of Criminal Appeal,

relying essentially on the Shannon type of doctrine
that if two people are charged with a conspiracy,

one is acquitted, the other one must be acquitted. And what this Court essentially said in Darby was,

"No, you look at the sufficiency of the evidence

against each to prove the conspiracy alleged."

Now, you may have a situation where if the

evidence is the same it is sort of inconsistent to

say that as against A you have proved an agreement

between A and B but as against B you have not

proved an agreement between A and Band that makes

Romeo 10 13/3/91

perfectly understandable sense, in our respectful

submission, to say that.

What the High Court did in Darby was

essentially to say it is not an automatic reflexive

disposition of a case, a two-headed case in that

instance, to say if one is acquitted the other has

to be acquitted because it is an agreement between
the two. Rather, it is a question of assessing the

evidence against the two and as against the one

there may be a sufficiency, as against the other,

not.

DAWSON J:  You see, that really was the argument there: it

takes two to make an agreement; if one, by

acquittal disappears, ergo it was said - - -

MR RICHTER:	Ergo there was no agreement.
DAWSON J:	- - - there was no agreement and that was

rejected.

MR RICHTER: That was rejected and

DAWSON J: That is not this case.

MR RICHTER:  - - - for obvious reasons because as against

Darby there was sufficient evidence but the real question is sufficient evidence of what? Not of his complicity with all sorts of vague notions but

as against him a jury could say, "He agreed with

Thomas to commit an armed robbery. As a matter of

evidence we're satisfied that that agreement

existed." Notionally, of course, a case against

Thomas and against Darby must be separately

considered on evidence admissible against each.
The confessions of Darby were not admissible
against Thomas. Therefore, on a strict analysis of

the case against Thomas one could not say that

Thomas had joined an agreement between himself and

Darby to commit an armed robbery.

So, if one assumes, for example, even if they

had been tried together it would have been quite

proper for a jury to acquit one and convict the other but only on the basis that the conspiracy

charged, all the elements of the agreement charged

were proved against that person; not on the basis

that some of the elements were proved against that

person but that all the elements were proved

against that person.

DAWSON J:  I do not understand how that applies here. Here

you have alleged a conspiracy to possess a drug

with intent to supply.

MR RICHTER:	To another, and that is important.
Romeo	13/3/91
DAWSON J:	And at the end of the day you look at the

evidence, or the jury does and it says or could

say, "Well, now, look, as regards Romeo there

certainly was an intent to supply the drug, an

intent to possess the drug and for that matter an

intent to possess the drug supplied by Marinovich."

You look at Ricardo and you say the same thing

about him. Then you look at Marinovich and you

say, "Well, look, we can say as to him there was

certainly an intent to possess the drug and that's

in conjunction, in agreement with the other two, but in his case we have a reasonable doubt about his intent. Therefore, there still is an agreement

but we cannot say that he is a party to that

agreement with the necessary intent or, if you

like, he is a party to the same agreement as were

the other two people.

MR RICHTER:  Where that fails, in our respectful submission,

is this, that it was an essential element of the

agreement charged that the three of them agree,

with respect, to the on-sale to another.

DAWSON J: Why?

MR RICHTER: Because that is the offence.

BRENNAN J:	Can you demonstrate that by reference to the record, that is by particulars that were given or
in any other matter of it?

MR RICHTER:  No. The particulars that were given were

really the taped conversations.

BRENNAN J: That was evidence~ The whole argument, it seems

to me, founders or succeeds according to your

capacity to demonstrate what the terms of the

charged conspiracy were.

MR RICHTER:  Yes, Your Honour and

BRENNAN J:  And in the absence of particulars it seems to me

that you must be able to point to something which

shows that the conspiracy was of its nature a

three- headed conspiracy.

MR RICHTER: Precisely, Your Honour, and that is what we

will seek to do because, in our respectful

submission, that is what the material bears out,

and that really is what we seek to do in our

outline of submissions and we would go to the first

paragraph which asserts that the agreement alleged

was between Marinovich, Ricciardello and Romeo and

that takes us to the indictment, first of all, the

indictment on its face and we are concerned with

counts 1 and 2 of course. The indictment on itself

alleges that Marinovich, Romeo and Ricciardello:

Romeo 12 13/3/91

conspired together to possess a quantity of
heroin with intent to sell or supply it to

another.

DAWSON J:  But you see the agreement is to possess the quantity of heroin with the necessary intent. The

parties to the agreement may be various but that is

the agreement.

MR RICHTER:  The agreement has to be, in our respectful

submission, not just to possess; the agreement has

to be to supply as well, that has to be the common

purpose of supply to another.

BRENNAN J: But by whom?

MR RICHTER:	By all three.
BRENNAN J:	Why?

MR RICHTER: Because that is an essential element of the

offence in section 6(1) of the Misuse of Drugs Act

BRENNAN J: Not it is not. With respect, that is not the

proposition. The proposition if A, Band C Join a

conspiracy that A should commit the section 6(1)

offence, that is a conspiracy.

MR RICHTER: Yes, we agree, but in order to do that all of

them have to agree that A, and it has to be a part

of the agreement, that A supply or sell to another

and that is the precise point that we are making.

So that whilst we agree with what Your Honour

Mr Justice Brennan just put to me the narrow

proposition avoids what we say is the gravamen of

the offence because it is not - - -

BRENNAN J: Well then let us focus on that for a moment. Is

it the proposition that the conspiracy that was

charged in count 1 is that three parties agreed

that one of them or two of them should have

possession and that one of them or two of them

should have possession with intent?

MR RICHTER:  To supply to another, yes.

BRENNAN J: Is that the proposition?

MR RICHTER: Yes, sir.

BRENNAN J:	So that what had to be proved against each of the accused was that each of them agreed that Romeo
and Ricciardello should have possession and have it
with intent?

MR RICHTER: Yes, Your Honour.

Romeo 13 13/3/91

BRENNAN J:	Now, did the evidence establish that against those two?
MR RICHTER:	No, it did not establish that those two were in

agreement with Marinovich as to the sales.

BRENNAN J: That is not a point. Did it establish as

against Romeo and Ricciardello they had agreed that those two should have it in possession and with the relevant intent?

MR RICHTER:	Yes.
BRENNAN J:	So that the proposition that you advance is that

the conspiracy of its nature as alleged was that three of them had so agreed to that proposition?

MR RICHTER:  Yes, Your Honour.

BRENNAN J: Well now, it seems to me that that is where your

argument does succeed or founder.

MR RICHTER: That is what we need to show. In any event,

having taken the Court to the indictment, what we

say is that the Crown opened its case on the basis

that that was the agreement alleged. We take the

Court first of all to page 54 of the appeal book

where Mr Davies, who prosecuted the trial, says as

follows:

What then is meant by the concept of

conspiracy?	When one perspires - we all know
what that means.	When one expires - we all

know what that means. When on conspires - if

you wish to take it literally, it means you

breathe together, but for more practical
purposes it means no more than an agreement.

A conspiracy is an agreement; a meeting of

the minds of the persons said to be conspiring

and their corning to an agreement to which they

all lend their minds. In other words, they

put their heads together -

et cetera. I will go to line 31, if I may, where

Mr Davies says this:

You will remember, Mr Foreman and ladies

and gentlemen, that a few minutes ago I said

to you that the only difference in the wording

of the first two charges in the indictment is
that the second one speaks of a further

quantity of heroin, but with that difference

it can be said too that the Crown case is that

perhaps starting at the same time, but

certainly very early in the period in

question, there were running together these

Romeo 14 13/3/91

two conspiracies directed to different

quantities of heroin.

It may be that as time went by - and we

are only talking about a few days - the second

one really took over the first; but the Crown case is that early in the meeting of the minds of the three accused what they agreed to
obtain was a quantity of 1 kilogram of heroin,

it being a part of a larger quantity believed

to be available, and that when they agreed to

do that the scheme was, the conspiracy was,

that they would get it into their control - in

that regard the Crown would say to you it

mattered not particularly who actually held

it, conveyed it, stored it, moved it - each of

them being of the view that it wasn't, of

course, to be kept under the bed but was to be

on-sold.

Each of them being of the view.

Either right at the start, or perhaps more

realistically firming up a little after the

start of their discussions, there was, the

Crown says to you in relation to count 2, a

separate - sure, they are very closely related

and the material relevant to them is largely

the same, but a separate agreement, a separate

meeting of the minds, a separate joint
formation of the idea of getting into

possession a further - and you've guessed it; the rest of the large quantity of heroin that they were discussing, with intent that that

further quantity should also be on-sold,

obviously for profit. Again, the Crown would

say to you that we are speaking of the

agreement, it being an agreement that they

would get it into their control, each of them

being of a mind that it would then, by one or

more of them, be on-sold.

Let's just go over that again because it

is something that, at the start of a longish

trial, you really need to have a clear

understanding of, is it not, Mr Foreman and

ladies and gentlemen? The charge is that the

three accused conspired, that is agreed, to

possess, that is to have in their custody

and/or control, a quantity of heroin, namely

1 kilogram, with intent that that quantity

should be sold or supplied to someone else,

and it matters not the identity of the other

person or persons - simply, to use a phrase

that the Crown will use regularly through the

trial, to be sold, or on-sold, if you wish.

In relation to the second count, the same

Romeo 15 13/3/91

considerations apply, that there was an
agreement to get into possession, that is to

have possession of, a further large quantity

of heroin with intent that that too be
on-sold.

And so the intent is rendered essential to the

three of them.

If I can then take the Court to page 60. The

relevant pages are really pages 60 to 65.	What our
learned friend, Mr Davies, said was this:

In very short form, and not particularly

attempting to use the precise words, this is

the picture presented -

and he then goes through what appears on the

various tapes, and at page 60 when he discusses the

morning of Thursday, 13 November, all three of the

accused being present and that is important at that

stage.

At page 62, line 10, relating to the conversations that take place, the case is opened

on this basis:

Throughout that, the accused Romeo not

being present -

this is the last three conversations -

Ricciardello constantly speaks of Ralph -

"Ralph said this. I will ask Ralph that."

Between the two of them you can hear them -

that is Marinovich and Ricciardello -

calculate that they will need -

some amounts of money and so on. The learned

prosecutor continues going through the tapes, and

having come through the tapes at line 40 of page 64

he says this:  That is what the cook might call,

Mr Foreman and ladies and gentlemen, a potted

version of what the Crown says can be gleaned

from these five devastating tapes - and they

are almost entirely the Crown case. There is

a web around it and there's formal evidence

to the charge of agreeing to get a kilo, of
agreeing as well to get the rest or as much of
the rest as can be obtained, and disclosing
the fact, as you listen to the ordinary around it, but that is the Crown case related got 4 ounces and got rid of it.

Romeo 16 13/3/91

What then, is the framework of the

evidence? Obviously, the formal evidence of

the planting of the device; the setting up of
the receiver; the listening, monitoring

conversations -

et cetera. The evidence that the learned Crown

prosecutor opens at that page is evidence of the

three of them, all three of them acting together in

all purposes, in our respectful submission.

It is clearer, we would say, when one comes to

deal with the closure of the Crown case because we
assert that the Crown closed its case upon the
basis of a three-party agreement agreeing to all
the elements, and if I can take the Court to

page 409 of the appeal books at line 13, the

learned prosecutor addressing the jury says this:

What then are we dealing with primarily

in this case, Mr Foreman and ladies and

gentlemen? Leave aside for a moment count 3,

which is something of an adjunct to the total

proceeding really. You're dealing with a

matter of conspiracy. What is it?

Well, it may be more helpful to deal with

some of the things that it isn't. It isn't a

charge of actually doing the acts which were

being discussed. If you had a conspiracy to

murder, it goes without saying that no one

would be suggesting that anyone was murdered

because, had that been so, no doubt the person

would have been charged with it. So it

doesn't involve_your deciding whether they

actually got hold of anything; nor, for that

matter, just how close to getting hold of it

things proceeded.

What it does involve your contemplating

and deciding is this: did they agree? That's
an ordinary English word.	was there a

concluded agreement to commit the offence in

question -

"the offence in question", of course, being one of

possession for sale or supply, and what he is

saying is "Was there a concluded agreement between

the three to commit that offence?"

In saying that, that must encompass in it

the notion of all the elements of that offence

being agreed to by the three of them and he is

putting it up as just that, an agreement between

the three to commit the offence. When one analyses

what that must mean, it must mean there has to be an agreement by all three of them to each element

Romeo 17 13/3/91

of the offence because otherwise they would not be

agreeing to commit the offence. One of the

elements of the offence is the intent to sell or

supply to another. He goes on:

that is, possession of heroin with intent to

sell or supply it to another? Those words

may sound very simple, Mr Foreman and ladies

and gentlemen. Was there a concluded

agreement to do this?

Of course the word, "concluded", needs to be

looked at, doesn't it? What do we mean by

that? No more than - a question for you - had
the matter reached a stage of their agreeing

to carry ut a course of conduct which, if

done, would amount to the commission of the

offence it is said they conspired to commit -

would amount to the commission of the offence by

the three of them acting together in agreement.

BRENNAN J:  Why the three of them?

MR RICHTER: Because he is asserting that that is the

agreement: they agreed to commit the offence
together. Otherwise, he is not putting up a

three-headed conspiracy and, what we say is, that

is precisely what he is doing. He is putting up

the three-headed conspiracy, the three agreed to

each element of the offence.

DAWSON J: Well, he does that because he is asking for a

conviction of all three, but the judge separated it

all out in his summing up.

MR RICHTER:  The judge separated it out, in our respectful

submission, in a different way and adverting to

different principles. What the judge, essentially,

was doing was putting it as a three-headed

conspiracy and by some omission a part of the

which becomes important because after the judge	transcript was not included in the appeal books
summed up, there were exceptions taken to the references to the issue of whether two could be convicted. Exceptions were taken by all counsel
and, in effect, what the judge was saying, "This is
a Shannon case. They all three get convicted or
they all three get acquitted". He did not
expatiate on that greatly to the jury in the end
but he did redirect the jury and there was one
particular page of which we had faxed up this
morning and, unfortunately, it contains the fax
heading and the like, but at page 2218 of the trial
transcript, the learned trial judge, in fact,
redirected the jury.

Romeo 18 13/3/91

Not going so far as to go into great detail,

but having earlier said in argument, over the
objections to the charge, that this is a three or

none conspiracy in so far as the elements of

agreement to possess and agreement to on-sell are

concerned, he had some discussion with counsel

about why he left the possibility of two. What if,

for example, one of the two - if there was not

sufficient evidence against one of the two - to

establish that he had agreed to deal in heroin as

against some other drug, and that is why he had

initially charged the jury on that. We would seek

to pass up to our learned friends and to the Court

photocopies of the particular page at which the

learned trial judge added an emphasis to the jury,

and what he said was this - and it is the second

paragraph on the page, when the jury came back in:

When I explain to you that you cannot

convict one accused alone on a conspiracy in the circumstances of this case, but that you

can convict two, that direction does not

diminish the fact that you are being asked to

find and deal with a case fought upon the

basis of a conspiracy of three people.

What, in effect, the learned trial judge was trying to tell the jury throughout his charge was that the concept of agreement required at least two people.

There is no agreement by one person with himself or

herself and because of that there have to be at

least two parties to an agreement but that,

essentially - and this is reinforced in the

redirection - the Crown case is that it is a

three-headed agreement and that is the way it was

put and presented throughout.

I was reading from page 410 of the closing

address by Mr Davies and he says:

Of course the word, "concluded", needs to

be looked at, doesn't it? What do we mean by

that? No more than - a question for you - had
the matter reached a stage of their agreeing

to carry out a course of conduct which, if

done, would amount to the commission of the

offence it is said they conspired to commit?

Why do I dwell on this, Mr Foreman and ladies

and gentlemen? No doubt you will hear a lot

said about the difference between agreement

and negotiation, and it is a very important

difference, as a matter of law, but it also

needs to be very carefully understood and

applied. Negotiation, in the relevant sense

there, that is, as an appropriate

consideration when asking the question, "Was

there agreement or just negotiation?" means

Romeo 19 13/3/91

negotiation between themselves, negotiation

between themselves as a step towards coming to

an agreement amongst themselves.	You can see
why that's important.

That, Mr Foreman and ladies and

gentlemen, is very different from the question

of whether they are still negotiating with
someone else outside their group, in this

case, of course, the potential supplier, and

that wouldn't matter.

Now, the question about the possibility of
convicting two, not the three, was not of
convicting two of a separate conspiracy but of the

tripartite conspiracy. In other words, for

example, Ricciardello's defence involved the

assertion that there had not been a concluded

agreement. It was all - not serious and not
brought to finality; as did Romeo's defence.

Marinovich's defence involved the assertion that what he was doing was trying to get money from

Ricciardello who owed him money; trying, in the parlance used, to rip him off, the money. So he

was not really in agreement. The jury rejected all

that and found finality of agreement between the

three. But the learned trial judge's reference to the possibility of convicting two would have to do with the notion that what if, for example, with

respect to Ricciardello, the jury entertained a

doubt as to whether or not he had gone to final
agreement with the other two.

The other two would still be convicted if the

jury found finality of agreeing to the tripartite
conspiracy, although, as against Ricciardello,

there would not be enough evidence of finality, as

against Ricciardello. As against the other two,

there might well be enough evidence of finality.

In other words, the jury has no doubt that the

other two had determined to go through with the

arrangement, the tripartite arrangement.

BRENNAN J:  I am not following you there, Mr Richter,

because are you describing the tripartite

conspiracy now as being one to which all three were

party and the membership of the conspiracy was an

essential characteristic of the conspiracy?

MR RICHTER:  Yes, Your Honour.

BRENNAN J: Well, how could it be that if an essential

characteristic of the conspiracy was that three

should have been party to it, that it would have

been open to the jury for two to be convicted and

one to be acquitted?

Romeo 20 13/3/91

MR RICHTER:  Because the jury might find that on the

evidence admissible against Marinovich, for

example, and, say, Romeo, that those two had agreed

and, in their minds, had concluded agreement with

Ricciardello as well; in other words, the

agreement to which they subscribed their names was

the three-headed agreement. But because of an

evidentiary deficiency in the case admissible
against Ricciardello, because of, for example,

utterances in records of interview which might have

cast doubt - which were not cross admissible, of
course - about his having come to a concluded
agreement in this concert of the tripartite

agreement, he is entitled to be acquitted because

of the insufficiency.

BRENNAN J: That can hardly be right, can it, because if the

tripartite agreement was the essential

characteristic of a conspiracy which gave it its

identity, it would be necessary to prove, as

against each accused, that all three had agreed,

not to prove as against two that they had agreed to

a three-party agreement but to prove as against

each that three had agreed? And that would have

been on this state of the evidence, impossible.

MR RICHTER:	No, with respect, on the evidence admissible against each, just as it was possible as against
Darby to prove that he had agreed with Thomas that
it was not possible against Thomas to prove that he
had agreed with Darby. That is not a matter which
arises from the evidence that was commonly
admissible and formed the enunciation of the
formation of the agreement, namely of the tapes,
but that might arise because of the notion raised
by Ricciardello in police interviews with him that
it was not serious.
Now, if that is so then Darby would say, "Yes, you can convict two of the tripartite agreement
them convinces the jury that they were parties to a because the evidence admissible against each of tripartite agreement."
If, for example, Ricciardello had never been presented and the case is solely presented on the evidence against the other two, the two are
prosecuted, it is the Darby situation in the appellate forum, if we could put it that way. If only two of them had been prosecuted, and the
allegation had been, "You're guilty of a conspiracy
between the two of you and the third one who's not
here, let's have the evidence.  Does the evidence
prove, as against the two of you, that all three
agreed?" They could surely be convicted if the
evidence was sufficient to prove that.

Romeo 21 13/3/91

If the third one is then brought to trial and

the evidence admissible against him because of some

peculiarities does not persuade a jury sufficiently

that as against him he had concluded an agreement;
not that he was party to a two-party agreement, but

the evidence is not sufficient to demonstrate that

he had concluded a tripartite agreement, then he is

entitled to be acquitted.

That is essentially what Darby is about, in

our respectful submission, but it is not what this

case was about although the Court of Criminal

appeal sought to dismiss the applicants' appeals on

the Darby basis. Certainly there is a conspiracy

trial of three people going on, but there are three

trials going on within that one conspiracy trial.

Each one of those separate trials is aimed at

establishing that the particular accused had agreed

with the other two as to all elements of the

offence.

Now, as against one, there may or may not be a

sufficiency of evidence. If there is no
sufficiency of evidence he has to be acquitted and

can properly be acquitted. As against the other

two there may well be a sufficiency of evidence

that they, in their minds, were agreeing to the

three-headed agreement and so they could be

convicted.

Essentially, in our respectful submission,

where the flaw lies in the Court of Criminal

Appeal's decision here is this: what they really

said was that the evidence admissible equally

against all of them was not capable of proving the

three-headed agreement because all it demonstrated

was that Marinovich would supply Romeo and

Ricciardello but he was not a party to the

agreement to on-sell to another.

Now, given that that conclusion emerged from on that issue, it was not possible as against the	the evidence that was identical against all three	other two to say that the evidence was capable of
proving that the other two had agreed to anything
else because the objective situation of the
analysis of the tapes demonstrated that the Crown case against any of them could go no higher than to
show an agreement that Marinovich put Romeo and
Ricciardello in possession but could go no further than that and could not prove that the three agreed that the heroin be on-sold to another. Therein, in
our respectful submission, was the error that
occurred in the Court of Criminal Appeal.

MASON CJ:  Mr Richter, can you direct us to the passages in the summing up in which the trial judge indicated

Romeo 22 13/3/91

to the jury that they could convict one or at least

two of the three accused?

MR RICHTER: Yes, those passages -

MASON CJ:  Now, you have given us 2218.

MR RICHTER: Yes, well perhaps what I could do is this: the

references in the summing up upon which we

particularly rely are references at pages 768 to

770 and 784 to 785 and also pages 790 and

additionally pages 855 to 856.

The Crown draws attention to some passages in

their summary of submissions at the following pages

which refer to the possibility of convicting two

and that is at pages 760, 768 - my learned friend's

notation there is line 14, it is in fact line 34 -

page 769, page 770 and page 857. There is also a

reference to that - which is not included by our

learned friend in his outline, but at page 853 at

lines 4 to 7 - but, in our submission - - -

BRENNAN J: Are there any passages in the summing up in

which the trial judge identifies the conspiracy by

reference to its content?

MR RICHTER:  Yes, and those are really the passages on which

we rely where he tells them what is alleged.	If I
could take the Court first to page 768 - - -

BRENNAN J:	When you say, "the passages on which you rely", that is the first set of passages you gave us?
Yes, Your Honour. At page 768, line 14, His Honour
says this:

Today, I am going to tell you about the

law of conspiracy. Tomorrow, I will give it a

little practical life in relation, I think you

will find, to the facts of this case.	I say
that to you now because, of course, examples

are helpful but you must never let examples

from other circumstances interfere with your

judgment about these particular facts.

May I illustrate it in this way:  a young

couple thinking about buying a house -

and then he gives an illustration, and at line 33:

What amounts to a conspiracy? Well, agreement is essential, and you must be

satisfied that two or more of these accused

agreed together to possess heroin with intent

to sell or supply it on the first count, and

also on the second. If I may use a very

Romeo 23 13/3/91

simple example, if it takes two to tango, well

it has got to take two to agree, hasn't it?

And that is really the context, in our submission,

which he is thinking about, the notion of two, the

explanation to the jury that it is the agreement

which is essential.	The learned trial judge
continues:

People do not commit a criminal offence

merely by talking about the possibility of

committing some crime unless they reach a

stage where they have agreed to commit the

crime if it is within their power.

Furthermore, you must be satisfied that an

accused's mind goes with his words, and that

when he entered into the agreement, if you

find that he did, he intended to play some

part in the agreed course of conduct in

furtherance of its criminal purpose.

Now, you can have conspiracies where

there are major players and minor players.

Some people may just have a little part;

other people a very big part. It doesn't make

any difference. If they are agreed in the way

that I have described, then if you are

satisfied beyond reasonable doubt of the

elements in that particular case, then it

would be open to you to bring in a verdict of

guilty, but before you may convict these three

accused or any two of them of a conspiracy,

you must be satisfied that these accused had

passed beyond the sphere of negotiation or

intention. You must be satisfied that they

have reached the stage when they have agreed

to commit the crime if it is within their

power.

For these conversations to constitute a

conspiracy, either on the first count or on

the second count, these accused must be shown

beyond a reasonable doubt to have got beyond

mere negotiation to an agreement that, with

the intention of selling or supplying it to

others, they would get possession of heroin if

it was within their power to do so.

Now, the learned trial judge continues:

Possession of heroin is pretty simple for me to define in the circumstances of this case.

And he then gives them a definition of possession,

and at line 11 he says:

Romeo 24 13/3/91

As to the intent that it will be sold or

supplied, sell and supply have their ordinary

meaning.	You don't need a judge to tell you
what selling and supplying means.	To sell is

to dispose of heroin for a price or a

consideration. Supply covers the delivery of the drug from one to another and includes the

delivery by way of gift. In the context of

this case, I don't propose to say a lot about

the evidence of intention because you might

think that the intentions are plain enough.

What matters are questions relating to

agreement and what the substance is, but I

shall have a lot more to say tomorrow about

what are the specific things that you have got

to consider.

It is not necessary for the Crown to

satisfy you that these accused had reached

agreement on all the ways and means by which

they would get or maintain possession or sell

or supply the drug. The whole object of the

crime of conspiracy is to make agreements to

commit crimes punishable even before matters
have even reached the stage of attempting the

commission of the crime, so it is no answer to

a charge of conspiracy for the accused to say

they have done nothing apart from talk,

because if the talk amounts to an agreement of

the sort I have described, that agreement is

the crime, and it is not an essential

agreement of the conspiracy charges in this

case for the Crown to prove that there was any

heroin to be had, or to prove why the

agreements it alleges were not carried

through, or that any accused knew that this

agreement was a crime. The crime of

conspiracy is complete, even if afterwards the
conspirators repent, or stop, or have no

opportunity to give the agreement effect -

et cetera. I have mentioned that you must be

satisfied that at least two accused agreed in

that way because, as I have said, obviously
there must be at least two parties to an

agreement, and on the first count or on the

second count you could convict all three, or

you could convict two of them, but if you

can't get to the stage of satisfaction that

two have agreed, in this case you should

acquit all three. You couldn't acquit two and

leave one guilty of a count of conspiracy.

You will remember in what I am saying that

when I talk to you about conspiracy, entirely

Romeo 13/3/91

different considerations apply to the separate

counts against Marinovich.

Now, at page 784 the learned trial judge tells the jury how it was that Mr Davies opened the case:

yesterday I defined conspiracy to you in

general terms. From time to time I will come

back to the definition. Now I will remind you

how Mr Davies opened these two conspiracies to

you, and I will read to you from pages 98 and

99 of the transcript.

The learned trial judge then reads those pages.

The opening never spoke of two agreeing to

on-sell. The sole agreement that the opening spoke

of, and one could understand that in terms of the

fact that the Crown was trying to convict all three

of them, was always on the basis that the three

agreed to the elements.	The three agreed to the
possession.	The three agreed to the on-sale.

But what the learned trial judge does in

reading those passages from the Crown prosecutor's

opening is to put those assertions -

the three accused conspired, that is, agreed

to possess, that is, to have in their

custody/control ..... intent that it too be

on-sold.

That was the agreement alleged by the Crown - the

three of them did. And what the learned trial

judge says at line 33 - and he is talking about

some criticism that Mr Heliotis for Marinovich made

about the way the case is put - he says that what

Mr Davies does is:

He didn't put a conspiracy to get 1 kilo of heroin no matter what the price, no matter

what the availability, no matter when it is

available, but of course what Mr Heliotis is

saying is something that, when I come to deal

with his submissions - it is an argument that

he wants you to consider, and I will come back

to that.

That really relates to the question of finality.

The learned trial judge then continues:

True it is that if the agreement is to look at

things, rather than to do things, it is not an

agreement to possess, but when I come to

explain to you the particular facts of this

case, the law in relation to conspiracy, you

will see that you are constantly concerned

Romeo 26 13/3/91

with whether or not people have agreed to do
something or are still negotiating about

whether they will. No amount of wanting makes

a conspiracy, but if you do agree and you have

reached a concluded agreement, then you can

conspire, and I will come back to precisely

what the law is, but why I read out to you

what Mr Davies said at the beginning is

because those are the conspiracies that you

are concerned with and no other. If you see

other conspiracies by any chance in the

evidence, ignore them. He has placed his

case; that is the case he seeks to prove, and

you are not concerned with anything else.

If, for example, the evidence seemed to

prove a conspiracy to commit some other crime

than that he defined in opening; for example,

to possess some other narcotic or narcotics

generally, then the accused should be found

not guilty on these charges.

And this is all said in the context of the

Crown's opening, that the only agreement alleged is

the three-headed agreement where all three are in

agreement as to the elements of section 6(1); that

is, possess and the intent to sell or supply to

another.

At page 790, His Honour, at line 7, says,

having gone through the various general remarks:

With those general remarks we will turn

now to the first item of the agenda. Count 1,

matters common_ to all the accused - if you

wouldn't mind looking at your little check

list. First of all, agreement or merely
negotiations, and that embraces these

propositions. Only the agreement that

Mr Davies opened on count 1 is the one that

matters, no other agreement - it's got to be
that agreement.	Has it arrived at being a

concluded agreement of the sort I have

described, or are they merely negotiating?

And, once again, His Honour is reinforcing it

is only the agreement that Mr Davies opened which
is the one upon which the jury is to deliberate.

And it obviously did because it found all three

guilty. And His Honour keeps repeating and

endorsing what the learned prosecutor said in the

way he defined the agreement, as the only agreement

Accordingly, the applications for special

leave to appeal are refused.

AT 3.20 PM THE MATTER WAS ADJOURNED SINE DIE

Romeo 80 13/3/91