Smith v The Queen

[1970] HCA 48

HIGH COURT OF AUSTRALIA

McTiernan, Menzies, Windeyer, Owen and Walsh JJ.

SMITH v. THE QUEEN

(1970) 121 CLR 572

26 November 1970

Criminal Law

Criminal Law—Conspiracy—Trial—Practice—Several accused—Separate summing up—Separate verdicts—Presentment—Form of count alleging conspiracy.

Decisions

November 26.
The following written judgments were delivered:-
McTIERNAN J. I agree with the judgment and reasons of my brother Menzies. (at p574)

MENZIES J. This is an application for special leave to appeal against a judgment of the Court of Criminal Appeal of Victoria upholding the conviction of the applicant upon a charge of conspiracy tried in the Supreme Court. The relevant count in the presentment charged the applicant with conspiracy with nine other people. Of those presented on this count, four were acquitted and six convicted. There was another count alleging a separate conspiracy against six of the persons charged with the applicant. Of these, four were acquitted and two convicted. The trial took 136 days and the jury had to consider a huge mass of oral and documentary evidence. (at p575)

2. The count in the presentment with which we are now concerned was, at the hearing, amended to read as follows : "On divers dates between the 1st day of April 1965 and the 31st day of December 1965" the persons named "conspired together to cheat and defraud the National Bank of Australia Pty. Ltd. into paying money on behalf of or extending credit to the account known as the Southern Cross Fishing and Water Sports Centre at the Southern Cross Branch by divers fraudulent devices." Of this count the learned trial judge ordered particulars, and the following particulars were filed in the course of the trial : "The conspiracy alleged . . . . is (a) one to which the accused Mitchell was a party, (b) one in consequence whereof money was paid by the National Bank through the account known as the Southern Cross Fishing and Water Sports Centre at the Southern Cross Branch of the said Bank, to the accused Mitchell and to companies with which the accused Mitchell was associated." (at p575)

3. In the result, the applicant and those charged with him, other than Mitchell, were tried for conspiracy with Mitchell to cheat the National Bank as alleged. What the Crown had to prove, therefore was a conspiracy (1) to which Mitchell was a party, (2) to defraud the Bank, and (3) whereby moneys were paid by the Bank through the account of the Centre to Mitchell or to companies with which he was associated. (at p575)

4. Counsel for the applicant contended that the presentment, as so amended and limited by particulars, was demurrable in that it did not allege that the object of the conspiracy was to obtain the payment of money to Mitchell or his companies, and further that, as it stood, the count could be understood as charging not one, but two, conspiracies. I do not accept these contentions. (at p575)

5. I agree that the presentment was not artistically framed. It inaccurately referred to "paying money on behalf of or extending credit to" a bank account. Although it did refer to "allowing credit" it was, I think, eventually restricted by particulars to cheating, resulting in the payment of moneys by the Bank to indentifiable persons. This was, I think, enough ; the stated object was to cheat and defraud the Bank. What Lord Denman C.J. said in Reg. v. Kenrick (1843) 5 QB 49 (114 ER 1166) is apposite. The Chief Justice said (1843) 5 QB, at pp 60-62 (114 ER, at pp 1170-1171) :

"It was contended, in the first place, that the third count was bad by reason of uncertainty, as giving no notice of the offence charged. The whole law of conspiracy, as it has been administered at least for the last hundred years, has been thus called in question : for we have sufficient proof that during that period any combination to prejudice another unlawfully has been considered as constituting the offence so called. The offence has been held to consist in the conspiracy, and not in the facts committed for carrying it into effect : and the charge has been held to be sufficiently made in general terms describing an unlawful conspiracy to effect a bad purpose. This form of indictment was formally questioned in R. v. Gill and Henry

(1818) 2 B &Ald 204 (106 ER 341)

, and was, upon discussion, held good ; nor has that decision been overruled. The indictment in R. v. Eccles (1783) 3 Dougl 337 (99 ER 684) , stated in a note there, is equally general. There have not been wanting occasions when learned judges have expressed regret that a charge so little calculated to inform a defendant of the facts intended to be proved upon him should be considered by the law as well laid. All who have watched the proceedings of courts are aware that there is danger of injustice from calling for a defence against so vague an accusation : and judges of high authority have been desirous of restraining its generality within some reasonable bounds. The ancient form, however, has kept its place ; and the expedient now employed in practice, of furnishing defendants with a particular of the acts charged upon them, is probably effectual for preventing surprise and unfair advantages."

The essence of the charge was, of course, conspiring with Mitchell to defraud the Bank, and there is no doubt that the count alleged this, although, maybe, with some surplusage. It would have been simpler if the presentment had merely alleged a conspiracy with Mitchell to defraud the Bank by fraudulent devices inducing it to pay money to Mitchell and his companies. That was the essence of the case and his Honour the learned presiding judge kept the jury to that case. The objection of duplicity was, in essence, that the evidence could be understood as showing that what was done by those charged with the conspiracy fell, within the period alleged, into two distinct stages, and that what was done in the first stage did not result in the payment of money but was merely "kite flying" to obtain credit, whereas what was done in the second stage did lead to the payment of money. This second stage, so it was claimed, could be regarded as a separate and distinct conspiracy, so that the jury was given the opportunity to find the applicant guilty even if his participation in what happened was limited to the first stage. It seems clear to me, however, that only one conspiracy was charged and, if it had happened that the jury found no more than that the applicant had participated in what counsel called the first stage, without the frauds then perpetrated giving rise to payments to Mitchell and his companies, the applicant, upon the presentment as limited by particulars ordered, and upon the judge's direction, would have been acquitted. The jury's verdict was clearly that the applicant was party to one conspiracy whereby moneys were paid by the Bank to Mitchell or his companies. (at p577)

6. I therefore agree with the Court of Criminal Appeal in rejecting the submission that the applicant could not be properly convicted upon the presentment as it went to the jury, and I do not find it necessary to discuss the authorities relied upon for that Court's conclusion beyond saying that I agree that R. v. Ongley (1940) 57 WN (NSW) 116 , is clearly distinguishable. (at p577)

7. The objection to the presentment was followed by a number of submissions, none of which seemed to me to give rise to any matter warranting the granting of special leave to appeal, and I touch upon them but briefly. (at p577)

8. There was an objection to the use of a chart prepared by one Tuckwell. As to this I do no more than record my full agreement with the statement of the Court of Criminal Appeal as follows (1971) VR, at pp 59-60 :

"The chart was nothing but a convenient record of a series of highly complicated cheque transactions which had been proved by other evidence, and was likely to be of considerable assistance to the jury. Had they all been accountants, doubtless after considerable time they could have prepared such a chart for themselves. The use of such charts and other time-saving devices in complicated trials of this kind is a usual and desirable procedure and is encouraged by the courts." (at p577)

9. There was a further contention that the learned judge erred in that he failed to discharge the jury from verdict, he having made a gravely prejudicial remark in the presence of the jury during the course of the evidence relating to the applicant's interview with the police. Again I do no more than record my agreement with what the Full Court said in rejecting this contention. Any possibility of prejudice was removed by what his Honour said when the matter was brought to his attention. (at p578)

10. The Court of Criminal Appeal also rejected an attack upon the exercise by the learned trial judge of his discretion to refuse to allow the applicant's case to be reopened in order to lead evidence to disprove something said by the accused Mitchell in the course of his statement from the dock. The Court of Criminal Appeal pointed out that there were no sound grounds for impeaching the refusal to allow a case to be reopened to rebut a statement that was not evidence against the applicant. (at p578)

11. Another of the matters which, as it seems to me, were peculiarly matters for the Court of Criminal Appeal and not for this Court, was the submission earnestly pressed by counsel for the applicant that the conviction was against the evidence and the weight of evidence. The Court of Criminal Appeal said (1971) VR, at p 63 :

"The learned judge reported there was in his opinion ample evidence to warrant the verdict. We agree. In our opinion, according to the view the jury took of the evidence admissible in relation to the applicant, which was, of course, entirely a matter for it, it was well open to it to find that he was a guilty party to the conspiracy during the period alleged or a substantial part of it."

Indeed, counsel for the applicant conceded that there was evidence upon which the jury could find a verdict of guilty against the applicant. Without going into elaborate detail, it can be stated shortly that there was evidence upon which the jury could have found (1) that the Southern Cross Fishing and Water Sports Centre was the applicant's own business ; (2) that the applicant provided Mitchell on several occasions with a number of cheques signed in blank upon the bank account of that business ; (3) that the applicant was aware that this bank account was being used by Mitchell to manipulate large deposits and withdrawals which had nothing to do with the legitimate business of the Centre ; and (4) and that the applicant was party to the opening of spurious bank accounts which were used, with the bank account of the Centre, to defraud the Bank of a lot of money. The jury was not bound to conclude that the applicant was no more than a foolish dupe of Mitchell. (at p578)

12. The last of the matters peculiarly for the Court of Criminal Appeal, and not for this Court, was the contention that the learned trial judge, by not discharging the jury before it reached a verdict against the accused Mitchell after about twenty-two hours' consideration, or by not informing the jury that it was not under any obligation to come to a verdict, coerced the jury to arrive at a verdict against Mitchell and also against the other accused. The jury convicted the applicant after consideration of his case for four and a half hours. It appears to me that the learned trial judge conducted a most difficult trial with the most conspicuous fairness and ability, and that nothing which he did or said savoured of coercion. He was at great pains to assure the jury that they could have whatever time they required to consider their verdicts. I agree with the Court of Criminal Appeal that there is nothing in this point of coercion. (at p579)

13. This leaves one matter which, to my mind, does raise an important question of law in relation to the trial of persons charged with criminal conspiracy. (at p579)

14. As has already been indicated, ten accused persons were presented for trial upon one count. The accused Mitchell made an unsworn statement from the dock ; the other accused gave evidence. The course followed by the learned trial judge in obtaining the verdicts of the jury was to direct the jury upon the law, sum up in a general way upon the evidence, and then, taking the accused in turn, either individually or in groups, direct the jury upon the matters particular to each accused or group of accused, and then direct the jury to consider its verdicts one after the other. Thus the jury were first directed to consider their verdicts against Mitchell. Upon his conviction they were directed to consider their verdicts against Seager, Bishop and Langford ; then J.H. and J.P. Boston ; then the applicant and his wife Diane Kathleen Smith ; then Rees, and finally Millar. Therefore the learned trial judge had the jury available until all the verdicts had been returned. It was not until the last verdict had been returned that the jury was discharged. (at p579)

15. The course which was followed had been a matter of discussion between the learned trial judge and counsel. The judge adopted the course followed against the objection of counsel for Mitchell but with the approval of counsel for six of the other accused, but when, after the jury had considered its verdict against Mitchell for many hours, his Honour proposed to counsel that he should recall the jury, charge them in relation to the other accused and require the jury to consider a verdict against all the accused together, counsel for all the accused objected. Shortly after his Honour advanced this proposal, the problem, that it was directed to solving, ceased to exist, for the jury returned verdicts against Mitchell. The readily explicable objection taken by counsel to recourse at a late stage to a different procedure from that which had been followed for days does not, I think, preclude reliance by the applicant upon the error of the course which was followed and did result in his conviction, if it should appear that that course was not justified in law. The correctness in law of the course which was followed is the present problem. If the course taken was one open to the presiding judge, there can be no question but that, in following it, his Honour wisely exercised his discretion to separate the jury's problems as far as was reasonably possible to secure that the case against each person accused should be decided upon its own merits. (at p580)

16. The fundamental strength of the objection to the course taken at the trial, is, that the jury, upon a summing up which was complete as to Mitchell only, had to decide whether or not there was a conspiracy between Mitchell and at least one of the other persons charged as parties to the alleged conspiracy. Mitchell alone could not have been convicted : Reg. v. Manning (1883) 12 QBD 241 ; R. v. Plummer (1902) 2 KB 339 ; and Kannangara Aratchige Dharmasena v. The King (1951) AC 1, at pp 5 and 6 . His conviction, therefore, involved an affirmation by the jury that at least one of the other accused was a conspirator with him. If it had turned out otherwise, it would, of course, have been necessary for the jury to have been instructed to acquit Mitchell too, notwithstanding its earlier verdict against him. His Honour the presiding judge clearly enough had this possibility in mind. The possibility of avoiding, by direction, any inconsistency that there would otherwise have been upon the record does not, however, provide a complete answer to the objection that the verdicts should not have been taken in succession in the manner already stated. (at p580)

17. The propositions for which counsel for the applicant contended were as appear from the judgment of the Court of Criminal Appeal stated as follows by counsel for Mitchell and adopted by counsel for the present applicant in that Court. They were :

"1. In a joint trial on a count against several persons of conspiring together (a) an accused cannot be found guilty on the basis that on the evidence admissible against him he conspired with one or more of the other accused ;

(b) an accused can only be found guilty on the basis that he and one or more of the accused are found guilty of conspiracy.

2. As a result of the content of the charge and the procedure
of separate charges and separate verdicts the jury in finding the applicant Mitchell guilty (a) at most could have found that on the evidence

admissible against him he conspired with one or more of the other accused ; (b) did not find him guilty on the basis that he and one or more of the accused were found guilty of conspiracy. 3. The jury should have been directed fully as to the

guilt or innocence of each accused before being required to make a decision that the applicant Mitchell and one or more of the accused were found guilty of conspiracy. 4. The jury should have been directed that they could not find the applicant Mitchell guilty unless they reached unanimous agreement as to the identity of the one or more of the accused with whom he conspired."

As to these propositions the Full Court observed :

". . . it is one thing to say where two are on trial that the jury cannot be told they may convict one and acquit the other. It is quite another to say it cannot be told that it can convict both by verdicts considered separately." (at p581)

18. I agree. (at p581)

19. The decisive answer to the submission that it was an error to require the jury to consider its verdicts against the accused separately is, I think, to be found in the long-established practice that a person charged with conspiracy with a named person can be tried and convicted alone : Archbold, Pleading, Evidence and Practice in Criminal Cases, 37th ed. (1969), par. 4080, and Kannangara Aratchige Dharmasena v. The King (1951) AC, at p 6 . So a person can be convicted of conspiracy with another (a) who is uncaught : R. v. Kinnersley and Moore (1719) 1 Str 193 (93 ER 467) ; (b) who is dead : R. v. Niccolls (1745) 2 Str 1227 (93 ER 1148) ; Reg. v. Kenrick (1843) 5 QB 49 (114 er 1166) ; and (c) who is amenable to justice but not charged ; R. v. Sayers (1943) SASR 146 . If recognition, that a person can only be convicted of conspiracy with another or others, does not prevent one person being tried alone as a party to the conspiracy alleged, surely such recognition does not prevent the taking of separate verdicts against persons charged with and tried together for conspiracy with one another. (at p581)

20. Furthermore, there is direct authority to support the taking of the course which his Honour took : Reg. v. Newland (1954) 1 QB 158 ; Glanville Williams, Criminal Law, 2nd ed. (1961), 683 ; Kenny's Outlines of Criminal Law, 18th ed. (1962), 418. (at p581)

21. The problems associated with separate trials of persons alleged to have conspired together have been adverted to from time to time, but, in this case, it is not necessary to consider whether authorities such as Reg. v. Manning (1883) 12 QBD 241 and R. v. Plummer (1902) 2 KB 339 would require some kind of reconsideration of a verdict of guilty upon the trial of one "conspirator" if the other "conspirator" were to be acquitted upon his trial subsequently. As at present advised, I am disposed to think that the earlier verdict could continue to stand - even if some way of impeaching it could be found - but that is a matter for another day, upon which, if it comes, it will be necessary to consider whether what was said by the Privy Council in Kannangara Aratchige Dharmasena v. The King (1951) AC 1 ought to be applied in cases of separate trials. There it was decided that if two persons are tried together upon a charge of conspiracy and are convicted, the conviction of one cannot be quashed and that of the other sustained. In the present case, as I have said, a verdict of guilty against Mitchell could not have been allowed to stand if verdicts of not guilty had been returned against all the other accused and this possibility was in the contemplation of his Honour the presiding judge who could himself have dealt with the matter. (at p582)

22. For the foregoing reasons, my conclusion is that his Honour had a discretion to conduct the trial as he did, and that, in choosing the course which was followed, there was no error of law. (at p582)

23. Accordingly, I consider that the application for special leave to appeal should be refused. (at p582)

WINDEYER J. I have read the judgment of Menzies J. I agree in it. There is nothing that I could usefully add. (at p582)

OWEN J. I agree that special leave to appeal should be refused. I have nothing to add to the reasons given by my brother Menzies for reaching that conclusion. (at p582)

WALSH J. I agree with the reasons given by Menzies J. for holding that this application for special leave to appeal should be refused. (at p582)

2. The most important matter raised by the submissions made on behalf of the applicant was the question of the propriety of the procedure, adopted at the trial, of asking the jury to consider separately their verdicts in the cases of different accused persons or groups of accused persons. I agree with the Court of Criminal Appeal and with Menzies J. that in taking that course the learned trial judge did not contravene any rule of law which has been laid down or which ought now to be laid down. Although I think that logical objections of some force may be raised against the validity of that procedure, it seems to me that the law relating to trials in conspiracy has been developed in a way which has not always been entirely logical. I think that we should not hold that the course taken in this case was wrong in law. In my opinion it is a course which a trial judge may adopt if in the exercise of his discretion he thinks it is proper to do so in the interests of justice. If that be so, there is no reason in my opinion for disagreeing with the conclusion of the Court of Criminal Appeal that in the circumstances of the present case it was well within the discretion of the trial judge to take that course. (at p583)

3. It is not desirable to attempt to enunciate general rules or tests as to the manner in which a trial judge should exercise his discretion in deciding upon the procedure to be used in obtaining the verdicts of the jury in a joint trial for conspiracy. But I think that I should say that in my opinion the course which should be regarded as the normal course is that of inviting the jury to consider, at the same time and after a summing up which has dealt with the whole trial and with the cases for and against each of the accused, all the verdicts which need to be returned. A departure from that procedure should be made only if it appears to the trial judge that there are substantial reasons for doing so. I do not regard it as unfortunate that the practice of summing-up and taking a verdict for each defendant is not obligatory : see Glanville Williams, Criminal Law, 2nd ed. (1961),683. I think that the practice of asking the jury to return verdicts only after there has been placed before the jury everything which they will be required to consider, including the complete charge of the presiding judge, ought still to be followed as a general rule in conspiracy trials as well as in other joint trials. But the trial judge may be justified in some cases in adopting the procedure which was adopted in this case. (at p583)

4. The application for special leave to appeal should be refused. (at p583)

Orders

Application for special leave to appeal refused.