The State of Western Australia v Oates - [2004] WASC 170

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- OATES [2004] WASC 170

CORAM: ROBERTS-SMITH J

HEARD: 26 JULY 2004

DELIVERED : 26 JULY 2004

PUBLISHED : 6 AUGUST 2004

FILE NO/S: INS 28 of 2004

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ANTONY GORDON OATES
Respondent

Catchwords:

Criminal law - Evidence - Conspiracy to defraud - Substantive offences contrary to s 229 Companies (Western Australia) Code - Application to stay indictment - Severance of counts - Whether inclusion of conspiracy count an abuse of process - Principles

Criminal law - Practice and procedure - Application to stay indictment - Application for severance

Legislation:

Nil

Result:

Application dismissed

Category: A

Representation:

Counsel:

Applicant: Mr S D Hall SC & Mr A S Derrick
Respondent: Ms E L Fullerton SC & Mr P B O'Neal

Solicitors:

Applicant: Zilkens & Co
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Ahern v The Queen (1988) 165 CLR 87; 34 A Crim R 175
Connolly v Meagher; Ex parte Connolly (1906) 3 CLR 682
Davidovic v The Queen (1990) 51 A Crim R 197
Director of Public Prosecutions v A (A Child) (2001) 23 WAR 331
Jago v District Court of New South Wales (1989) 168 CLR 23
McCready v The Queen (1985) 20 A Crim R 32
Mills v The Queen (1985) 17 A Crim R 214
Pearce v The Queen (1998) 194 CLR 610
R v Dowding [2000] VSC 439
R v Hoar (1981) 148 CLR 32
R v Humphries [1982] 1 NZLR 353
R v Jones (1974) 59 Cr App Rep 120
R v Turner (No 15) [2001] TASSC 144
Ridgeway v The Queen (1995) 184 CLR 19
Rogers v The Queen (1994) 181 CLR 251
Smith v The Queen (2001) 206 CLR 650
Tripodi v The Queen (1961) 104 CLR 1
Verrier v Director of Public Prosecutions (1967) 2 AC 195

Case(s) also cited:

Kural v The Queen (1987) 162 CLR 502
Mok v The Queen (1987) 27 A Crim R 438
Moore v The Queen [1988] 1 Qd R 252
R v Byrnes & Hopwood (1995) 130 ALR 529
R v Griffiths & Ors [1966] 1 QB 589
Romeo & Ors v The Queen [1988] WAR 304

ROBERTS-SMITH J: The accused Antony Gordon Oates was presented in this Court on an indictment dated 26 July 2004 charging him with 15 counts.
Count 1 was a charge that:
"… between 26 August 1988 and 29 May 1989 at Perth in the State of Western Australia and other places within and without the said State ANTONY GORDON OATES conspired with Alan Bond, Peter Alexander Mitchell, Peter George Beckwith, Maureen Noonan and divers other persons to defraud Bell Resources Ltd, its subsidiaries and its shareholders by fraudulent means contrary to section 412 of the Criminal Code."
The remaining 14 counts comprised seven offences charging that the accused made improper use of his position as a director of Bell Resources Ltd ("BRL") to gain an advantage for Bond Corporation Holdings Ltd ("BCH Ltd"), contrary to s 229(4) and s 570 of the Companies (Western Australia) Code ("the Companies Code) and in the alternative, seven counts charging that with intent to defraud BRL and others, he failed to act honestly in the discharge of his duties as an officer of BRL, contrary to s 229(1)(b) and s 570 of the Companies Code.
By application under the Criminal Procedure Rules 2000 (WA) dated 16 July 2004 and subsequently amended by application dated 22 July 2004, the accused sought an order that the indictment be stayed as an abuse of process on the grounds that:
(a)count 1 as particularised alleges that the accused was party to more than one conspiracy and therefore to more than one criminal offence, and is accordingly bad for duplicity;
(b)the inclusion of count 1 on the indictment is unfair and oppressive in that the evidence to be led in proof of the substantive counts numbered 2 to 15 comprises overt acts by which the conspiracy is to be proved.
By that application the accused also indicated that if the Court would refuse the order the indictment be stayed, he would demur to count 1 as disclosing no offence known to the law.
The application came on for hearing before me on 26 July 2004.
The trial, which has been listed for hearing for 10 weeks, was due to commence on 4 August 2004. That being so, after hearing submissions on 26 July I ruled that the application to stay the indictment would be refused and indicated I would deliver my reasons later. Following further submissions I gave my ruling on the demurrer on 30 July and delivered my reasons for overruling it.
These are now my reasons for refusing the accused's application to stay the indictment.
I should begin by setting out the nature of the charges and the State case and then by outlining the submissions made. I should also say that at the hearing Ms Fullerton SC put the application in the alternative, in that were I not to order the stay it was put I should order count 1 be severed from the other 14 counts on the indictment.
At the outset, Ms Fullerton said on 26 July that having read the State's outline of submissions, the accused was content not to press the point with respect to duplicity at that time. She did not disagree with the State's argument that duplicity is a matter of the form of the indictment and the question would be whether, at the end of the prosecution case, the evidence was sufficient to support the charge as laid or revealed some quite different conspiracy, not charged.
The accused was extradited from Poland to stand his trial following a request by the Commonwealth of Australia dated 7 July 1996. Extradition was sought in respect of each of the 15 counts on the indictment together with a further two counts alleging, in the alternative, that on 26 August 1988 the accused breached s 229(4) or s 229(1)(b) of the Companies Code by conduct of the same general kind as that alleged in some of the other counts of the indictment, namely by authorising the transfer of BRL funds to BCH Ltd in his capacity as director of the former corporation. On 15 January 2002 the request was refused in respect of those two counts by the Supreme Court of Poland on the basis that the equivalent offences in Poland were by then time‑barred.
It is submitted that the dates during which it is alleged the accused acted in concert with the named co‑conspirators in count 1 corresponds precisely with the date of the two time‑barred substantive counts (namely 26 August 1988) and the date upon which the last of the substantive counts (14 and 15) were allegedly committed (namely 29 May 1988). It is submitted that it must be taken as given that were it not for the fact that two substantive counts are no longer justiciable the indictment would include them.
The submission on behalf of the accused goes on to assert that quite apart from the coincidence in the dates, the particulars of overt acts reveal that the evidence relied upon to prove the substantive counts is the primary evidence by which the prosecution seeks to prove the conspiracy. It is submitted that without proof of the acts relied upon to make out the various and successive substantive breaches of the Companies Code there would be no evidential basis upon which a conspiracy to defraud BRL could be mounted.
It is then submitted that the framing of an indictment charging a conspiracy together with the substantive counts by which the conspiracy is to be proved, exemplifies a prosecutorial approach that has attracted trenchant judicial criticism. Reference is made to R v Hoar (1981) 148 CLR 32. It is said that joinder may produce a longer and more complex trial and a plethora of unnecessary evidentiary problems.
Ms Fullerton submits that it is "not without importance" to observe that were this case to be prosecuted under Commonwealth legislation, s 86 of the Crimes Act (Cth) would apply and the prosecution would need to satisfy the Court the conspiracy was properly joined. (See R v Turner (No 15) [2001] TASSC 144; R v Dowding [2000] VSC 439). In my view it is inapt to deal with this application by analogy to a statutory provision which does not apply to it.
It is then submitted that in the particular circumstances of this case there is a very real prospect that unfairness will result should the indictment stand in its present form. There are five reasons advanced for that. They are first, that the substantive charges alone require that the jury be carefully directed as to the quite different elements that need to be the subject of proof and that to then expect a jury to discriminate between the elements in those alternate counts and the evidence relied upon to establish them and the way the jury should approach the question whether a conspiracy has been proved comprised largely of the same conduct, would be to impose an unnecessary burden on the trial process for all concerned. Secondly, the factual matrix in which it is alleged the accused's criminal liability emerges and difficulties inherent in proving these facts given both the volume of material and the passage of almost 16 years. Third, it is submitted the co‑conspirators rule would have some application to the conspiracy but apparently none in proof of the substantive counts. She says that this is a rule notoriously difficult for a jury to comprehend and apply and made all the more difficult when it is sought to be employed by the State in proof of the conspiracy but not other counts. Fourth, whilst the substantive counts are made in the alternative so that the jury would not be invited to return verdicts of guilty in respect of the alleged breaches of s 229(4) and s 229(1)(b) in respect of any given date, the conspiracy is not laid in the alternative but is in addition to the verdicts sought in respect of the substantive counts. Accordingly it is said it would be open to the jury to return a verdict of guilty on the conspiracy and of each of the substantive counts comprising the conduct of the accused from which it is alleged both the existence of agreement is to be inferred and the accused's participation in it. It is submitted that to permit the State to prosecute in this way is to offend the fundamental principle that a person should not be twice punished for the same criminal act (Connolly v Meagher; Ex parte Connolly (1906) 3 CLR 682). Finally, it is submitted that again in the event the jury convicted on both the conspiracy and the substantive counts, the court would be confronted with a sentencing issue with which it should not have to be confronted, were the indictment to have been framed "in an appropriate and balanced way" having regard to the now recognised principle of fairness enunciated in Hoar (see Pearce v The Queen (1998) 194 CLR 610).
The final submission made in support of the application is that there are effective and appropriate charges available to be prosecuted and they are indeed those charged in the indictment. They not only cover the same conduct alleged to constitute the primary evidence of the accused's participation in the conspiracy by focussing attention on his statutory and common law obligations as a director but, in addition, they cover the same time frame as that comprehended by the conspiracy. Furthermore, by reason of being charged as individual offences, the substantive counts attract separate penalties on conviction, giving the court the option should it regard it as appropriate, to order that the sentences be wholly or partially accumulated. It is submitted that there is no justification for charging a conspiracy in these circumstances.
In his submissions, Mr Hall SC, for the State, emphasises that the application is one to stay the indictment as an abuse of process and for that to succeed there would have to be some "very strong evidence or basis" for thinking that the prosecution was seeking to improperly achieve an ulterior purpose by the procedure adopted. He submits that the mere joinder of a conspiracy count with substantive counts does not in itself provide such a basis because there are circumstances (such as those here) in which joinder is appropriate. One such circumstance is where the prosecution sets out to show that there was a continuing conspiracy of which the substantive offences were no more than incidents – or to use his expression "milestones along the way". (R v Humphries [1982] 1 NZLR 353). Another circumstance applicable here is where the substantive charges do not adequately represent the overall criminality of the accused (R v Jones (1974) 59 Cr App Rep 120).
It is submitted unfairness to the accused or difficulty in the trial process arising out of the fact that some evidence admissible in respect of the conspiracy count would not be admissible in respect of the substantive counts, do not arise here. That unfairness or difficulty falls away where it is alleged that the substantive counts were committed in the course of a common enterprise involving the same parties as the conspiracy (Davidovic v The Queen (1990) 51 A Crim R 197; Tripodi v The Queen (1961) 104 CLR 1). In such a circumstance the same evidence is admissible in respect of all counts and accordingly, no unfairness by reason of the joinder arises.
So far as the possibility of unfairness arising out of the potential for double punishment is concerned, the State submits that if the joinder is otherwise appropriate any problem in respect of punishment is to be resolved by ensuring that in imposing sentence the fact that certain of the overt acts are the subject of separate punishment is taken into account – and it must also be recognised that in some cases the element of concert may itself justify a more severe penalty (Verrier v Director of Public Prosecutions (1967) 2 AC 195).
It is submitted that this is not a case in which there is unfairness resulting from the fact that substantive offences are effective and sufficient charges because none of the available substantive counts here either individually or together, reflect the totality of the conduct and achievements of the conspiracy.
This Court has inherent power to prevent abuse of its process and to control proceedings before it if they would constitute oppression or injustice to an accused (Jago v District Court of New South Wales (1989) 168 CLR 23). But abuse of process is not confined to the institution or maintenance of proceedings for an improper purpose. In Director of Public Prosecutions v A (A Child) (2001) 23 WAR 331 I referred to this aspect in the following passages at [38]‑[39] in the context of discussing what Malcolm CJ had said in R v Lorkin (1995) 15 WAR 499:
"Malcolm CJ (at 809) described the view taken by Mason CJ in Jago as 'a relatively broad view of the inherent jurisdiction or power to prevent abuse of process' and added (at 509):
'In Walton v Gardiner (1993) 177 CLR 378 at 393‑395 the broad view of the approach to the scope of abuse of process was adopted by Mason CJ, Deane and Dawson JJ, who held that the power of the court to stay proceedings as an abuse of process was not limited to cases where the proceedings had been brought for an improper purpose, or where there was no possibility of a fair hearing. The power extends to cases where the court was satisfied that the continuation of the proceedings would involve unacceptable injustice or unfairness.'
His Honour then discussed in detail the authorities relating to the presentation and effect of a nolle prosequi, in particular Jell, before turning to Williams v Spautz (1992) 174 CLR 509 which as he pointed out (at 515) was primarily concerned with the question of proceedings alleged to have been instituted and maintained for an improper purpose. As the Chief Justice noted, there was no element of improper purpose in the case before him, it was rather the policy considerations referred to by Lord Scarman in R v Sang [1980] AC 402 at 455 which were there called in to play. Those policy considerations were first that the public interest in the administration of justice requires a court to protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike; the second was that unless the court protects its ability to function in that way its failure to do so would lead to an erosion of public confidence by reasons of concern that the court's processes may lend themselves to oppression and injustice."
In Rogers v The Queen (1994) 181 CLR 251, Mason CJ said (at 255):
"… I agree with the reasons given by Deane and Gaudron JJ for concluding that the prosecution's tender of the records of interview constituted a direct challenge to the 1989 determination and was therefore an abuse of process. The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party's genuine purpose to obtain the relief sought in the second proceeding. The circumstances in which abuse of process may arise are extremely varied and it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.' See also the judgment of Deane and Gaudron JJ (at 275, 280)."
In Ridgeway v The Queen (1995) 184 CLR 19 at 59‑60, Toohey J said:
"There is no doubt that a court may intervene to prevent an abuse of its process in criminal as well as civil proceedings. The concept of abuse of process is not a precise one, nor can it be. It gives effect to a concern on the part of courts that may arise in a variety of circumstances but at the heart of the concept lies the legitimate power of the courts to stay prosecutions brought in exercise of the prerogative of the Crown.
Generally, abuse of process derives from a concern that judicial process be not invoked for an improper purpose and that the process be not abused in a way that interferes with the conduct of a fair trial. There are distinct aspects of abuse of process in that proceedings may be stayed if it appears that they have been brought for an improper purpose even though there is no reason to doubt that the accused will receive a fair trial.
Equally, an accused may not receive a fair trial by reason of delay, for instance, though there is no improper purpose in bringing the proceedings. But the power of a superior court to stay its proceedings on grounds of abuse of process is not confined to those situations. A stay of criminal proceedings gives effect to the view that it 'would offend the court's sense of justice' if the accused had to stand trial in those circumstances."
The expression "sufficient and effective charge" as used by Ms Fullerton is taken from the joint judgment of Gibbs CJ, Mason, Aickin and Brennan JJ in Hoar. In that case, H was convicted of conspiring to commit an offence against the Fisheries Act 1965 (NT), mainly to fish for barramundi during a prohibited period and at a prohibited place. It involved fishing operations on a large scale, to the extent probably of some tonnes of fillets.
H was sentenced to 3 months imprisonment but ordered to be immediately released on a recognisance release order for 3 years.
The trial Judge directed that certain substantial plant and equipment be forfeited.
The Full Court of the Federal Court held that the sentence was inadequate, and substituted a sentence of 14 months imprisonment with a non‑parole period of 6 months. The forfeiture order was set aside, the court holding that forfeiture could only be ordered in respect of an offence against the Fisheries Act – which conspiracy was not.
The High Court agreed in relation to the forfeiture order. It refused H's application for special leave to appeal against the order increasing his sentence. However it was in that latter context that the High Court made certain observations about conspiracy being charged with substantive offences.
The Crown had informed the Court that there were still summary substantive offences pending against H based on the same transactions as those involved in the offence of conspiracy, but no decision had been made at that stage whether or not to proceed with them. Twelve of the offences were alleged to be constituted by acts which were the overt acts of the conspiracy and were taken into account by the Federal Court in imposing sentence for the conspiracy. As their Honours pointed out (at 38), further prosecutions would therefore seek punishment for the same acts. Their Honours continued:
"That suggests that the Crown's advisers have overlooked a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act (see Connolly v. Meagher). It has long been established that prosecutions for conspiracy and for a substantive offence ought not to result in a duplication of penalty. In 1848 Lord Denman C.J. in Reg. v. Button) said: 'If, however, a prosecution for a larceny should occur after a conviction for a conspiracy, it would be the duty of the Court to apportion the sentence for the felony with reference to such former conviction.'
In exceptional cases the element of concert may justify a more severe penalty for conspiracy than for the substantive offence which the conspirators commit (see Verrier v. Director of Public Prosecutions), but where a court, imposing a penalty for conspiracy, takes into account the overt acts of the conspiracy, it would be wrong to impose a further penalty in respect of those acts.
Indeed the Crown has adopted a course of proceeding which is calculated to cause the maximum amount of prejudice to the defendants and the greatest difficulty to the courts in determining what is a proper penalty. If the Crown's belief was that it had effective charges for the substantive offence then it should have proceeded with those charges and sought on conviction an order for forfeiture which the Court would have been authorized to make. If there had been some real basis for doubting that the offence had been committed the Crown may perhaps have been justified in alleging an attempt or a conspiracy. Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed. As Lord Pearson observed in Verrier, the addition of a charge of conspiracy in the same indictment 'will tend to prolong and complicate the trial'. There is even less justification for charging conspiracy and the substantive offence separately and for maintaining the prosecution in respect of the substantive offence after securing a conviction for conspiracy.
In the light of the evidence called for the Crown there seems to have been no reason for thinking that the offence had not been committed. The evidence was that barramundi had been taken, cleaned and filleted and that the fillets had been placed in the freezing plant. Consequently, had the Crown followed the ordinary course, it would have been unnecessary to charge conspiracy and the entire problem of penalty, including the question of forfeiture, would have been disposed of in connexion with the substantive offence or offences.
In the present case, the Crown elected to proceed first on the charge of conspiracy and sought, on appeal as well as at first instance, a sentence appropriate to the gravity of the overt acts of illegal fishing. Such a sentence was imposed on appeal. It would be wrong for a court now to impose further punishment for the acts of illegal fishing in respect of which Hoar has already received a sentence.
In this situation we should assume that the Crown will, in accordance with the dictates of propriety, not proceed with the substantive charges and that no order for forfeiture will be made in respect of offences so charged. We shall consider the matter on this footing." (Footnotes omitted).

The potential confusion for the trial Judge and unfairness to the accused in a situation in which he may be punished twice for the same acts was a point relied upon by Ms Fullerton here. However, when I drew her attention to s 11 of the Sentencing Act 1985 (WA), she ultimately acknowledged "with some chagrin" that the section authorises convictions to be entered for each offence constituted by the same conduct, but prohibits the imposition of more than one punishment for the same act. Nonetheless, she adhered to her submission that there were no acts which could attract punishment on the conspiracy other than those alleged to constitute the substantive offences charged.
I have already referred to the authorities on the scope of the Court's jurisdiction to prevent an abuse of its process. In examining the question whether in the circumstances of this case, joinder of the conspiracy count with the 14 counts of substantive offences, (seven of them alternatives) is an abuse of process calling for an order staying the proceedings or severing the first count from the others, the starting point must be that the determination of what charges to prefer is an exercise of the prosecutorial discretion, which is not subject to judicial review. That point was made by the Victorian Court of Criminal Appeal in McCready v The Queen (1985) 20 A Crim R 32. There, Young CJ (with whom McGarvie and Ormiston JJ agreed) said (at 39):
"… it is I think clear that it is for the Crown to decide upon what offences an accused person is brought to trial by way of presentment or indictment, and, although the Court unquestionably has power to prevent an abuse of its process, it is not for the Court to decide, speaking generally, upon what offence the Crown should proceed. There are, of course, many statements in the books by judges and courts of the highest standing that it is undesirable to join charges of conspiracy with charges of substantive offences, that the charge of conspiracy should be sparingly employed, that at times a charge of conspiracy by reason of the evidence admissible to prove it may put an accused person at a considerable disadvantage. But all those observations stop short of denying to the Crown the right to indict or present for trial upon such charge as the Crown thinks fit."
In McCready it was contended that it was an abuse of process for the Crown to proceed on a charge of conspiracy to obstruct, pervert, prevent or defeat the course of justice contrary to s 42 of the Crimes Act 1914 (Cth), when it should have charged substantive counts. As to that, Young CJ said (at 40) that he did not think that proposition could be made out, adding:
"Before a court could interfere with a charge presented by the Crown on the grounds that it was an abuse of process, there would have to be some very strong evidence or basis for thinking that the Crown was indeed seeking to achieve an ulterior purpose by the procedure adopted. That would indeed be an abuse of process. It may not be the only abuse of process, but the mere choice of one section rather than another under which to prosecute, even though the section charged carries a higher penalty than the alternative section that might have been used, is not in my view an indication of an abuse of process."
I have already indicated my view, based on the more recent authorities, that the notion of abuse of process is wider than the bringing or maintenance of proceedings for an ulterior purpose. It will include the conduct of proceedings in a manner, or in circumstances, which would involve incurable unfairness or would bring the administration of justice into disrepute.
The inclusion of a conspiracy count on an indictment charging substantive offences may create relevant unfairness because of the different evidentiary rules which apply. This was recognised in Jones (supra).
In that case the appellants had been convicted of one count of conspiring to intimidate as well as one count each of unlawful assembly and affray and 39 other counts, including intimidation, causing damage, threatening behaviour and assault. The offences arose out of an official building trade strike which involved picketing some seven building sites.
Prior to arraignment, submissions were made to quash the conspiracy count on the ground it was improperly included in the indictment. The trial Judge rejected those submissions. The Court of Appeal held the trial Judge was correct. James LJ, delivering the judgment of the Court, said (at 124):
"In our view, the judge was right in his refusal to quash this count. The question whether a conspiracy charge is properly included in an indictment cannot be answered by the application of any rigid rules. Each case must be considered on its own facts. There are, however, certain guiding principles. The offences charged on the indictment should not only be supported by the evidence on the depositions or witness statements, but they should also represent the criminality disclosed by that evidence. It is not desirable to include a charge of conspiracy which adds nothing to an effective charge of a substantive offence. But where charges of substantive offences do not adequately represent the overall criminality, it may be appropriate and right to include a charge of conspiracy.
The indictment ought to include those charges which make for simplification of the issues and which avoid complexity and the need for multiplicity of counts. In some cases a conspiracy count may involve complexity which counts for substantive offences would avoid; in other cases a charge of conspiracy may be the simpler way of presenting the case to the jury because the alternative would be to proceed on a substantial number of charges of substantive offences. A further guiding principle is that a count for conspiracy should not be included with counts charging substantive offences if the inclusion will result in unfairness to the defence. This is an aspect which has to be weighed with the other considerations. In the present case the alleged criminality disclosed by the witness statements could not be represented by charges of substantive offences alone, the Crown case could not be adequately presented in the interests of justice by preferring a small number of charges of substantive offences of intimidation, and the task of the judge and the jury was simplified by proceeding upon one count of conspiracy instead of a large number of counts alleging substantive offences. No material misdirection, confusion or unfairness resulted from the inclusion of this count."
In the present case, Ms Fullerton argues that including the conspiracy count gives rise to a number of the undesirable features referred to in Jones including that the count adds nothing in terms of criminality to the substantive offences, it will add complexity and unnecessary difficulty to the trial and that it will result in unfairness to the defence.
Mr Hall on the other hand, maintains the substantive charges would not adequately represent the overall criminality contemplated by the conspiracy count and the latter would not add difficulty or complexity to the trial nor would it create unfairness because the same evidence would be admissible on the substantive charges in any event.
Another case in which joinder of a conspiracy count with counts of substantive offences was held appropriate because the Crown was setting out to show a continuing conspiracy of which the substantive offences were no more than incidents, was R v Humphries, supra. There the Crown proposed to present an indictment containing 13 counts charging substantive offences of manufacturing and possessing prohibited drugs. The 14th count was of conspiracy to supply one of the drugs. The trial Judge refused to order separate trials. Somers J delivered the judgment of the Court of Appeal. He noted (at 355) the disfavour with which the courts look upon the joinder of a count of conspiracy with specific counts which relate to the subject‑matter of the conspiracy, observing that one reason for that attitude is that evidence admissible only on the conspiracy count can have a prejudicial effect in respect of other counts. His Honour added that sometimes too, the addition of a count of conspiracy is undesirable because it unnecessarily complicates what is otherwise a simple case and because it tends to prolong a trial. However, his Honour also referred to Jones, supra, for the proposition that where charges of substantive offences do not adequately represent the total criminality involved, it may be appropriate and right to include a charge of conspiracy. His Honour thought that was "just such a case" (355) and the addition of such a count did not seem likely to add to the trial such a degree of complexity as would warrant severance.
Referring to the submission concerning the prejudicial effect of certain evidence upon the conspiracy count, Somers J thought that fell to be resolved against the common law as to the admissibility of evidence in conspiracy trials:
"The proof of conspiracy - a conscious common design to do an unlawful act or to do a lawful act by unlawful means - may be inferred from the separate acts of the persons charged when those acts demonstrate that such persons were acting together in concert. And the acts or declarations of one though done or made in the absence of another will be evidence against that other where such acts or declarations are in furtherance of the common design. The reason for the admission of evidence of the latter kind is that agreement between the parties implies authority in each to act or speak to attain the agreed object of all. There is here an apparent circularity of argument. If the authorising agency is the agreement how can evidence of what is said or done by one be admissible against the other unless that agreement is first proved, and if proved what is its necessity?
This difficulty has been met by the requirement that before the acts or words of one in furtherance of the common purpose is admitted against another there must first be reasonable evidence of the existence of the common intention. The point is specifically referred to in R v Gunn & Howden (1930) 30 SR (NSW) 336, 342; Tripodi v The Queen (1961) 104 CLR 1, 6-7; and in the Privy Council in Mirza Akbar v King-Emperor [1940] 3 All ER 585, 591.
The question then is whether. apart from Tape 28F, there is reasonable evidence of the existence of a common purpose …"
His Honour then referred to various aspects of the evidence on the depositions and concluded it was sufficient evidence of a combination between the alleged conspirators to warrant the admission against the applicant of evidence of declarations by the other alleged conspirators in the applicant's absence, which were in furtherance of such combinations. He further concluded the statements of the other alleged conspirators were capable of being accepted as in furtherance of a common design.
In the present case, senior counsel for the accused does not point to any specific evidence which she says would be admissible against the accused on the conspiracy count but not on the substantive counts (or any of them).
The highest senior counsel for the accused was able to put it was that the prosecution contends that the substantive counts were committed in the course of a joint criminal enterprise between each of the parties who participated in the conspiracy and that each of the substantive offences alleged against the accused were committed by him either in the course of that joint criminal enterprise or incidental to it. She said the prosecution identified the joint criminal enterprise as the fraudulent use of the funds of BRL by using them to the advantage of BCH Ltd, Dallhold and their associates. So the joint criminal enterprise she says, as the State articulates it, is precisely the same as the agreement the subject of the conspiracy. Ms Fullerton submits the prosecution does not contend there was a joint criminal enterprise in which each of the same conspirators was engaged to breach the provisions of s 229 of the Companies Code. Her submission was that at least two of the identified conspirators could not conceivably have been engaged in a common purpose to that end because they were not officers of either of the companies concerned.
In my opinion that submission does not assist the accused because there is no reason why a person could not be guilty as a principal of an offence against s 229 of the Companies Code by his active participation in or encouragement of the conduct of another person who is a director of a company which conduct is a breach of that person's duties.
Ms Fullerton's final submission on the point was that the use to which the acts and declarations may be put are not the same in proof of the conspiracy count as they are in proof of the substantive counts because the offences are different.
That submission seems to me to overlook the fact that the admissibility of the evidence would not depend upon complete correlation between the conspiratorial agreement and the common purpose pursuant to which the substantive offences are said to be committed - although as I apprehend it, there will be such correlation in this case in any event.
The fundamental test of admissibility is relevance (Smith v The Queen (2001) 206 CLR 650), which is to say whether or not the evidence tends to prove a fact in issue or a fact tending to prove a fact in issue. Evidence of what the accused and others did or said will therefore generally be admissible if it tends to prove (inter alia) the conspiratorial agreement alleged and/or the common criminal purpose. In relation to the latter, the common purpose pursuant to which it is alleged the substantive offences were committed, is not so confined as Ms Fullerton would have it. Further, while it is true that the use to which the acts and declarations are put is not the same in proof of the conspiracy count as it is in proof of the substantive counts, that is not something which could create any unfairness to the accused in the circumstances of this case.
In Mills v The Queen (1985) 17 A Crim R 214 the applicant and another were jointly tried on a charge of conspiracy to defraud. The Crown case was that the applicant, his co‑accused and others, had entered into a conspiracy to defraud the T & G Life Assurance Society by having the Society purchase land owned by a number of the conspirators at a grossly inflated price. The scheme involved one of the conspirators who was an employee of the Society acting in breach of his duty to the Society.
The applicant's application for leave to appeal was dismissed.
The court referred to the argument pertinent here at 221‑222 and I think it is best to set out the relevant passages in full:
"The next submission of the applicant was … summarised in counsel's summary of argument as follows:
'1. It is undesirable to charge conspiracy when a substantive offence has been committed and there is a sufficient and effective charge available to the prosecution. Such a course involves injustice to the accused and a conviction obtained in such circumstances should be quashed. Such a charge is oppressive and amounts to an abuse of process.'
Mr Sher referred us to a number of cases in which courts have expressed disapproval of charges of conspiracy where a substantive charge was available. The argument suggested that the trial judge had a discretion to refuse to allow the Crown to proceed upon a charge of conspiracy if it could be seen that it would be unfair to do so. In the end, however, Mr Sher was obliged to concede that in order to persuade the court to quash the presentment or set aside the conviction he had to show that to proceed as the Crown had proceeded was to abuse the process of the court.
It is not necessary to refer to all of the cases mentioned by Mr Sher. In many of them there is no more than a judicial disapproval of the Crown's charging conspiracy in general. There are many such cases but we shall quote only from one of the more complete statements. In Cooper [1947] 2 All ER 701, Humphreys J speaking for the Court of Criminal Appeal (Lord Goddard CJ, Humphreys and Singleton JJ) said (at 704):
'It was said in the judgment of this Court in Luberg (1926) 19 Cr App R 133, that difficulty had arisen in that case as the result of including a count for conspiracy together with a number of counts charging particular offences against that section of the Larceny Act 1916 (UK), s 32, which makes it an offence to obtain goods by false pretences. Sankey J, as he was in those days, said this at 136: "But we do desire to say one word about the whole indictment. It will be observed that it starts with the general count for conspiracy. I am far from saying that that is wrong. It is perfectly open to prosecutors to do that, but it does, in our judgment, place the defendants in a case like this in some difficulty. The reason is that it renders admissible evidence of what one prisoner says in the absence of the others, because if they are all conspirators, what one of them says in furtherance of the conspiracy would be admissible evidence, even though it was said in the absence of the other conspirators. This is not only my own opinion. There is the well-known case of Boulton (1871) 12 Cox CC 87, where Cockburn CJ, in summing-up, refers to this procedure and says (at 93): 'I am clearly of opinion that where the proof intended to be submitted to a jury is proof of the actual commission of crime, it is not the proper course to charge the parties with conspiring to commit it, for that course operates, it is manifest, unfairly and unjustly against the parties accused; the prosecutors are thus enabled to combine in one indictment a variety of offences, which, if treated individually, as they ought to be, would exclude the possibility of giving evidence against one defendant to the prejudice of others, and deprive defendants of the advantage of calling their co-defendants as witnesses.' It is perfectly true that that case was different from the present one. It is equally true that since the decision in that case, an Act of Parliament has been passed which enables a prisoner to go into the witness-box and give evidence. It is a perfectly admissible and proper course to pursue, and a course which is often pursued, but we think that if that course is pursued, great care and great caution is necessary during the hearing of the evidence to be quite sure that no evidence is given which is inadmissible, and great care is required in the summing-up to keep all the several issues perfectly clear."'
In that particular case the vice was the joinder in one indictment of a count of conspiracy with substantive counts. The accused had been convicted of conspiracy to steal although acquitted of four counts of robbery and four counts of larceny. The conviction was quashed on the ground that the verdicts were inconsistent.
So with the other authorities to which we were referred. In any case where a conviction has been quashed, it has always been quashed for some reason other than the oppressive nature of the charge of conspiracy: see, for example, Gerakiteys (1984) 153 CLR 317 (no evidence to support conspiracy); Dawson [1960] 1 WLR 163 (convictions quashed because several conspiracies charged as one); Griffiths [1966] 1 QB 589 (several conspiracies charged as one and substantive counts in the same indictment). We were not referred to any case in which a conviction for conspiracy was quashed solely on the ground that the charging of the conspiracy was oppressive, although we were referred to a number of cases in which the court expatiated upon the undesirability of charging conspiracy: see, for example, Hoar (1981) 148 CLR 32 especially at 37-39; Grunewald v United States 353 US 391 at 404 (1957); Ryan (1984) 14 A Crim R 97. It is unnecessary to cite more. The principles are clear. The court does not look with favour on charges of conspiracy realising the disadvantage at which an accused can be placed thereby and although the court retains the power, in the interests of justice, to quash a conviction which is the result of oppression, it will rarely, if ever, do so except where the charge is brought as an abuse of the process of the court. It was no doubt considerations such as these which drove Mr Sher to concede that he had to show an abuse of process. Mr Sher did not shrink from attempting to do so, but in our opinion, there is nothing in the present proceedings to suggest that the Crown proceeded in abuse of the court's process and this argument just therefore fail."

The last authority to which I shall refer on this point is Davidovic, supra, a decision of the Full Court of the Federal Court of Australia. This rather more clearly shows the lack of prejudice or unfairness resulting from the juxtaposition of a conspiracy count with counts of substantive offences where the principles of common purpose apply to evidence admissible in relation to the substantive counts.
The appellant was convicted on one count of conspiracy to supply heroin and one of possessing heroin for the purpose of supply. Briefly the Crown case was that the accused supplied heroin on a regular and frequent basis to the other conspirators who then re‑packaged it into smaller "deals" and distributed it to customers. The object of the conspiracy alleged was that the appellant would supply heroin to his co‑conspirators who in turn would supply others.
The first ground of appeal asserted that the trial Judge erred in omitting evidence of acts and conversations involving persons alleged to be the other conspirators outside the presence of the appellant because there was insufficient other evidence to establish that he was a party to the conspiracy. The court (Miles, Foster and von Doussa JJ) held in a joint judgment, that this misconceived the principles enunciated in Tripodi, supra and Ahern v The Queen (1988) 165 CLR 87; 34 A Crim R 175, in that it failed to recognise the clear distinction to be drawn between the existence of a conspiracy on the one hand, and the participation of each of the alleged conspirators in it, on the other.
There were two other grounds of appeal, the final one being that the trial Judge erred in allowing the substantive count to go to the jury, or alternatively in failing to direct them that the evidence provided by the tape‑recordings (relative to the conspiracy) had been admitted for purposes limited to the conspiracy count and was not to be used in the second count which charges a substantive offence of possession for supply. As to that, the court said (at 205‑206):
"This submission assumes that even if the evidence provided by the tape-recordings of acts and declarations of the other conspirators made outside the presence of the appellant were admissible as to the truth thereof on the conspiracy count to prove his participation in a common enterprise with the object alleged, the evidence could not be used upon the second count as proof that the appellant was in possession of heroin found in his clothing at the time of his arrest for the purpose of supplying it to other people. This assumption is ill‑founded. The rule that acts done and statements made by another person in the absence of the accused are admissible against the accused if done or made in furtherance of a common criminal purpose to which both are parties is the same whatever the charge. The principles which governed the admission of the tape‑recordings into evidence on count one applied also to count two: Ahern at 100; 182 and Corak and Palmer (1982) 30 SASR 404. Where the charge is one of conspiracy the evidence may be more readily admitted as combination is an element of the offence: Tripodi at 6. Where only a substantive offence is charged the admission of the evidence is conditioned on there being reasonable evidence from which the accused's participation in the combination may be inferred, but once this threshold is passed, the evidence 'may be used to prove, not the fact of participation in the combination, but the offence charged': Ahern at 100; 182. That threshold was passed in the present case, and the evidence was available to prove both the object of the conspiracy and the purpose of the appellant's possession of the heroin.
There is no absolute rule that a count charging conspiracy may not be joined with a count charging a substantive offence constituted by one of the overt acts relied on as proof of the conspiracy, although in many circumstances it may be undesirable to do so as the combination of one or more conspiracy charges with one or more substantive charge may give rise to a very real risk that a jury will encounter difficulty in reasonably separating out or isolating evidence which is only admissible on one count from evidence which is only admissible on another: Griffiths [1966] 1 QB 589; (1965) 49 Cr App R 279; Moore [1988] 1 Qd R 252; (1987) 25 A Crim R 302; Hurrey (1987) 29 A Crim R 42 and Hoar (1981) 148 CLR 32. However the present case is not one where complexities of the kind discussed in the cases cited were likely to arise, and significantly no application was made on the appellant's behalf to sever the two counts. Here the evidence admitted on the conspiracy charge, once the trial judge ruled that it was available to prove the participation of the appellant in the conspiracy alleged, was also admissible to prove the purpose of his possession of the heroin on 28 February 1988. The Crown case was that his possession was for the purpose of supply to other people in furtherance of the common enterprise. This being so, no direction was required that parts only of the evidence admitted on the conspiracy count could be used by the jury in relation to the other count." (My emphasis).
Mr Hall submits that the situation in this case is the same, namely that the evidence admissible on the conspiracy charge will also be admissible on the substantive charges.
On the basis of what I understand the State case to be, and given that Ms Fullerton was not able to point to any specific evidence which she could say would not be so admissible, I accept the prosecution's submission in that regard.
Indeed, I note that in her oral submissions advancing the argument that the conspiracy count adds nothing to the criminality comprehended by the substantive counts, Ms Fullerton contended there will be a "complete corollary" in that in both the conspiracy on the substantive counts, the body of evidence to be led in proof of dishonesty is the same.
I turn now to the question whether the substantive counts are effective or sufficient on their own to reflect the alleged criminality of the accused.
The conspiracy alleged in count 1 is to defraud BRL, its shareholders and subsidiaries. The object of the conspiracy was to use the funds of BRL for the benefit of BCH Ltd, Dallhold and their associated entities to the prejudice of BRL. Achievement of this object it is said would prejudice the economic interests of BRL, its subsidiaries that would be used in obtaining the funds and its shareholders (in that the asset backing of their shares was improperly put at risk).
The prosecution case will be that to achieve the object the conspirators agreed to do whatever proved to be necessary both to obtain the use of BRL's funds and to retain the use of them. It will be said that acts carried out to re‑structure the intercompany lending were in furtherance of the conspiracy because they sought to conceal and falsely legitimise the fraudulent use of the funds.
The State case will be that the loans were the means by which the funds of BRL were extracted for the use of BCH Ltd, Dallhold and their associates. The terms of the loan were adapted to meet changing circumstances, but always with the object of maintaining the use of the funds to the prejudice of BRL. An example of this is said to be the second extension of the Freefold facility to $1 billion on 29 April 1989, which enabled inter‑company lending under this facility to be increased from $700 million to $1 billion. It will be submitted the approval of that extension was an action that was directed to the object of loaning the liquid assets of BRL to BCH Ltd, Dallhold and their associates. It will be alleged that the substantive counts were committed in the course of a common enterprise which involved the same parties as the conspiracy and that accordingly the same evidence is admissible in respect of all counts. On that basis it is submitted, no unfairness by reason of the joinder of the counts arises. I accept that submission.
Mr Hall then submits that it is evident from the particulars that not all of the overt acts are represented by substantive counts and that the overall criminality of the accused is not covered by the substantive counts. He gives some particular instances.
He instanced the overt acts relating to what is described as the first back‑to‑back transaction on trip 29 August 1988 (transaction 2), the misleading response to the National Companies and Securities Commission on 7 November 1988, the draw‑down of additional funds on the Freefold facility (transactions 24 to 27), the resumption of back‑to‑back transactions in December 1988 (transactions 29 to 39) and the misleading responses given to the Australian Stock Exchange in May 1989. He submits all of these evidence significant criminality that is not the subject of substantive counts.
With respect to those specific examples Ms Fullerton submits that the first back‑to‑back transaction (nominated as transaction 2) had been charged as a substantive offence in 1995 but was one of the offences which became time‑barred according to Polish law for the purposes of extradition and so it could not now be charged as a substantive offence. As to the others (transactions 24 to 27 inclusive and transactions 29 to 39 inclusive) Ms Fullerton's submission was that the Executive has determined not to charge those as substantive offences and that is therefore simply a matter of history which can have no bearing on the argument.
In my view, whether described as a matter of history or not, the relevant fact is that there are overt acts alleged which are said to demonstrate criminality and which are not the subject of substantive counts. It follows that if the accused were to be convicted of the conspiracy count (and those overt acts proved) that would encompass greater criminality than is covered by the substantive counts.
The particulars of the alleged conspiracy comprise 217 items. They have been set out with reference to the evidence in support of them, on a chart which runs to some 79 pages. Very many of them are innocuous. Many others will be said to evince a criminal character only because of the purpose to which they are alleged to be directed. There are far more of these than the seven substantive counts (and the seven alternative counts).
Furthermore, it is one thing to allege the commission of seven discrete offences to given effect to a common purpose and another to allege a continuing conspiratorial agreement which involved a range of activities, not limited to those encompassed by the substantive offences, to implement the conspiracy and to maintain its effectiveness over time.
I accept the State's submission that the criminality allegedly comprehended by the conspiracy count is wider and more extensive than that reflected by the seven discrete substantive counts. In that circumstance the charging of the conspiracy count in the same indictment is not an abuse of process.
Ms Fullerton then says that another way the "effectiveness and sufficiency" of the laying of the substantive charges may be tested, is by the available penalties which may be imposed. In the case of each of the more serious of the substantive counts, that is those under s 229(4) of the Companies Code, the statutory maximum is 5 years imprisonment. Thus, if the accused were to be convicted on all seven, the theoretical statutory maximum penalty would be 35 years imprisonment. Ms Fullerton says that is to be contrasted with the statutory maximum of 7 years imprisonment in respect of a conspiracy under s 412 of the Criminal Code. As I understand it, the argument is that as there would inevitably be some accumulation of the sentences on conviction for the substantive offences, that would immediately be greater than 7 years. Furthermore, it is submitted that a conviction on the conspiracy and the substantive counts (or any of them) would create a sentencing problem in that it would be difficult to avoid punishing the accused more than once for the same acts.
If it be (as I am persuaded it is) that the conspiracy count reflects greater criminality than is comprehended by the substantive counts, and there is evidence to support the conspiracy count, then the prosecution is entitled to pursue it. As to the issue of punishment as such, the State is entitled to anticipate that one or more of the substantive counts (or their alternatives) may not result in a conviction and to maintain a charge which does nonetheless encompass the full scope of the continuing agreement.
So far as any sentencing problem is concerned, s 11(1) of the Sentencing Act expressly provides that if the evidence necessary to establish the commission by a person of one offence is also the evidence necessary to establish the commission by that person of another offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of them. I refer to that provision on the assumption that I make at this stage only for the purpose of this application and on the basis of Ms Fullerton's submission that the evidence would be the same. So if the evidence necessary to support the conspiracy count is the same evidence that was necessary to support the substantive counts, the section would allow conviction on all, but sentence only on either the substantive offences or the conspiracy. From what has been put before me thus far, I must say I do not apprehend that will be so. It would then become a question of ensuring that any sentence for the conspiracy offence did not include the facts going to the convictions on the substantive offences (if any). I do not see that as an unduly difficult sentencing problem.
For the foregoing reasons, I came to the conclusion that no abuse of process has been demonstrated by the charging of the conspiracy count together with the seven substantive counts (and their alternatives) and the application for an order staying the indictment or severing the conspiracy count must accordingly be dismissed.