The Abuse of Process Issue
47 The fact that particular conduct may constitute the Commission of more than one criminal offence is not an unusual situation. It is only in exceptional circumstances that the prosecutorial choice in laying a charge would constitute an abuse of process. However, in my opinion, the fact relied upon by the Applicant, namely the difference between the maximum penalties applicable to alternative charges, is a perfectly legitimate basis for the exercise of prosecutorial choice.
48 The charging of conspiracy where a substantive offence has been committed is the subject of guidance by courts of the highest authority. Although the practice has been discouraged, it has never been suggested that it is an abuse of process to proceed on a conspiracy charge where a substantive offence carrying a maximum penalty could have been lain.
49 In written submissions to this Court, counsel for the Applicant referred to the most frequently cited Australian authority on this issue, being The Queen v Hoar (1981) 148 CLR 32, where the joint judgment of the High Court, as quoted in the Applicant's submission, said at 38:
"Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence is being committed."
50 However, the Applicant's written submissions did not contain the balance of that sentence in the High Court judgment which was "… and there is a sufficient and effective charge that this offence has been committed".
51 The reasoning in the joint judgment in Hoar was the subject of detailed consideration by Vincent JA in R v El-Kotob (2002) 4 VR 546; [2002] VSCA 109 where his Honour said:
"[42] No member of the High Court in Hoar suggested that substantive charges must always be laid in preference to a charge of conspiracy or that there may not be circumstances in which a presentment could properly contain both a count of conspiracy and counts relating to substantive offences. However, where "a sufficient and effective charge" relating to a substantive offence was available, it was considered to be inappropriate to lay a charge of conspiracy. Although the attributes of such a charge were not identified, it would seem to be reasonably apparent that their Honours contemplated the availability of a charge or charges that properly reflected the real criminality involved in the conduct and enabled, upon conviction, the making of an appropriate punitive response to it.
[43] Often criminal activities pursued as a consequence or in the implementation of an unlawful agreement are regarded not only as overt acts demonstrating the commission of the crime of conspiracy but are punished as incidents of it. In those cases the most serious features of the offenders' conduct may be perceived as being related to the development of the criminal design rather than its implementation. That was the manner in which the Federal Court dealt with the situation in Hoar . The specific statutory offences encompassed by the overt acts almost certainly did not represent the total criminality encompassed by the conspiracy. This situation may be contrasted with that presented in a case where the offenders had engaged in planned bank robberies. The commission of the substantive offence in that case can be seen to possess a much higher degree of criminality of itself. The conspiracy is subsumed by the substantive offence. However, there may well be cases where, in order that the full extent and character of the criminality involved may be properly reflected in both the convictions recorded against the respective participants and any further penalties imposed upon them, a distinction is appropriately made between the conspiracy and the consequent but nevertheless separate substantive offences so that convictions are recorded on both. What must be avoided, as I understand the judgments in Hoar , is not necessarily the joinder of counts but the presentation of the individual before the court on inappropriate counts and the potential for undue complexity with its risks of unfairness."
52 In the present case the only matter relied upon as indicating any kind of abuse was the different maximum penalties that could apply. That, in my opinion, is a matter upon which a legitimate prosecutorial choice could reasonably be made on the basis that the maximum provided for in the Corporations Law is not adequate to reflect the criminality of the offending in the present case. Accordingly, to use the language of the joint judgment in Hoar, a charge under the substantive offence is not "sufficient and effective".
53 The authorities on the charging of conspiracy, in lieu of substantive offences, which are many, frequently refer to the elements of unfairness that may arise from the imprecision of the charge, the vagueness of the case and the scope of admissible evidence. It is difficult to see how weight could be given to such considerations in the context of a plea of guilty, as in the present case.
54 In any event, the issue of what is a "sufficient and effective charge", to use the terminology in Hoar, is a matter that goes directly to the exercise of the prosecutorial discretion, with which the courts are reluctant to intervene.
55 As Gaudron and Gummow JJ noted in Maxwell v The Queen (1996) 184 CLR 501 at 534, this reluctance reflects, in part, the public interest in maintaining the independence and impartiality of the judiciary:
"It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what."
56 With respect to the proposition in this quotation referring to "decisions as to the particular charge to be laid or prosecuted", their Honours referred to two cases as authority.
57 One was the decision of Kirby P in Chow v DPP (1992) 28 NSWLR 593 where his Honour said at 604-605:
"It is the function of prosecutors, not of judges, to determine whether a person will be prosecuted for a criminal offence and, if so, upon what offence. The judge is, at least ordinarily, bound by the charge which the prosecutor elects to bring: see R v Brown (1989) 17 NSWLR 472 at 477f. Under our criminal justice system, the judge has no right to require the prosecutor to proceed on a 'higher' rather than a 'lesser' charge. Necessarily, the prosecutor will often have a great deal of material (some of it inadmissible) which will be weighed in electing whether or not to prosecute and if so for what offence. The judiciary is not well placed to supervise such decisions. They belong, in any case, by statute, tradition and the principled demarcation of the prosecutorial and judicial functions, not to the judiciary but to the prosecution."
58 Kirby P made similar observations in Weininger v The Queen (2003) 212 CLR 629 at [80]:
" … In several cases this Court has insisted upon respect for the prerogatives of the prosecution. The primacy of the prosecutor in determining the accusations that will be placed before a court, and in deciding whether or not to accept a plea of guilty to a lesser offence, is clear law in this country. This delineation of functions arises from a recognition of the different roles of prosecutors and courts in our system of criminal justice. It is not for courts to determine what the accusation will be but whether the accusation, as made, is established according to law in a trial lawfully conducted."
59 The second authority referred to by Gaudron and Gummow JJ in Maxwell supra, is of particular relevance for the present case. This was the judgment of Young CJ in R v McCready (1985) 20 A Crim R 32 where at 39 his Honour said:
" … [I]t 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 charges as the Crown thinks fit."
60 Of significance for the present case is what his Honour went on to say at 40:
"Mr Lewis contended, as I have indicated, that the process adopted by the Crown was worse than unfair: it was an abuse of process because it charged a conspiracy when it should have charged substantive counts, but I do not think that that proposition can be made out. 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. Mr Winneke contended that substantive counts were in fact not open in this case, but I find it unnecessary to consider that submission for it seems to me that the reasons which I have already given are sufficient to meet the contention that there was an abuse of process in the present case."
61 His Honour's reasoning that a choice made because one offence carries a higher penalty than another is not an indication of an abuse of process, should be followed by this Court.
62 In any event, the proposition that the Applicant would be subject only to a single charge under s184 of the Corporations Code or under Div 11.5 of the Criminal Code, and, accordingly, be exposed to a maximum penalty of five years imprisonment, is not correct. On the limited facts of the case before this Court, the Applicant transferred the relevant computer records with respect to eight different clients of the bank. It was probably open to the Crown to charge the Applicant with multiple contraventions of s184(2)(a) of the Corporations Code, and, possibly, multiple conspiracies to contravene s184. The sentence to be imposed would take into account the principle of totality, but it is by no means clear that charging of substantive offences would lead to a lesser sentence than proceeding upon the common law conspiracy charge alone. In my opinion, the Applicant has not made out the factual basis for its submission.
63 For the above reasons the alternative submission should be rejected.