FILE NO/S: CCA 59/2001; CCA 60/2001; CCA 65/2001

Criminal Law - General matters - Ancillary liability - Conspiracy - Generally - Whether Crown must prove guilt of all named conspirators.

Gerakiteys v R (1983 - [1984] HCA 8; 1984) 153 CLR 317, distinguished.

Criminal Law - General matters - Ancillary liability - Conspiracy - Proof and evidence - Evidence of participation by accused in conspiracy - Reasonable independent evidence of participation - Co-conspirators rule of evidence - Direction to jury - Multiple charges and accused - Need to identify evidence admissible under rule with respect to each charge and each accused - Whether the jury must agree that the same persons were parties to the conspiracy.

Ahern v R [1988] HCA 39; (1998) 165 CLR 87; R v Masters (1992) 26 NSWLR 450, applied.

Conway v R [2000] FCA 461; (2000) 172 ALR 185, disapproved.

KBT v R (1997) 191 CLR 417; Giannetto [1997] 1 Cr App R 1; Beach (1994) 75 A Crim R 447; R v Leivers and Ballinger [1998] QCA 99; [1999] 1 Qd R 649; R v Kamara [1974] AC 105; Woss v Jackson (1985) 11 FCR 243; R v Griffiths [1966] 1 QB 589; Phillips (1988) 86 Cr App R 18, referred to.

Criminal Law - Appeal and new trial and enquiry after conviction - Appeal and new trial - Particular grounds - Fresh evidence - General principles - Miscarriage of justice - Course to be taken by appeal court - Hearing and evaluation of new evidence.

Ratten v R [1974] HCA 35; (1974) 131 CLR 510; Lawless v R (1978 - [1979] HCA 49; 1979) 142 CLR 659, applied.

Criminal Law - Evidence - Matters relating to proof - Standard of proof - Circumstantial evidence - Reasonable hypothesis consistent with innocence - Direction to jury - Adequacy - Whether need for direction that intermediate conclusions of fact should be proved beyond reasonable doubt.

Chamberlain v R (No 2) [1984] HCA 7; (1983) 153 CLR 521; Shepherd v R [1990] HCA 56; (1990) 170 CLR 573, referred to.

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Circumstances of offender - Conduct during delay between offence and sentencing.

R v Todd (1982) 2 NSWLR 517; Duncan v R (1983) 47 ALR 746, R v Miceli [1997] VR 588, referred to.

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Parity - General principles - Principle confined to disparity between co-offenders.

Lowe v R [1984] HCA 46; (1984) 154 CLR 606, referred to.

First and Second Appellants: D Grace QC and R A Browne

Judgment Number: [2002] TASSC 58

JOHN GEORGIADIS, JULIE THEODOSIS and JOHN BELBIN v THE QUEEN

1 Appeals against conviction of all appellants dismissed.

2 Appeals against sentence by Georgiadis and Belbin dismissed.

3 Appeal against sentence by Theodosis allowed and further hearing as to sentence adjourned.

JOHN GEORGIADIS, JULIE THEODOSIS and JOHN BELBIN v THE QUEEN

1 Each of the appellants has filed a separate notice of appeal. The numbering of their grounds of appeal differs, but many of their complaints are common. The first two appellants, John Georgiadis and Julie Theodosis, were represented by Mr Grace QC, who led Mr Browne on their appeals; and Mr Browne on his own represented the third appellant, John Belbin. It will be convenient when referring to the first two appellants, as distinct from the third, as the "joint appellants" and when referring to all three as "all the appellants".

2 All the appellants stood trial together with three other persons namely Andrew Wayne Lamont, Paul Edward Kelly and John Bostock on an indictment alleging four different conspiracies and in respect of the appellant Theodosis charging two counts of perverting justice. The conspiracy counts were pleaded in three alternatives, one of which was to defraud the Minister of Sea Fisheries ("the Minister") contrary to the Criminal Code, s297(1)(d). The first count charged the joint appellants with conspiring together and with two of their employees, Williams and Gamble, to defraud the Minister. They were convicted. The second count charged all three appellants and Bostock with conspiring together and with Williams, Gamble and another of the joint appellants' employees, one Jones, to defraud the Minister. All three appellants were convicted on this charge. The third count charged the three appellants with conspiring together and with Williams, Gamble, Jones and a man named Hutchings, an abalone diver, to defraud the Minister. Again, all three appellants were convicted. The fourth count charged the joint appellants, Lamont and Kelly, with conspiring together and with Gamble and Jones to defraud the Minister. All four persons so charged were convicted. The appellant, Theodosis, was charged with two counts of perverting justice. She was acquitted on one such count and convicted on the other.

3 The nature of the fraud on the Minister alleged as the primary object of each conspiracy count was to cause the Minister to not act in accordance with the public duties vested in him with respect to the management, control, protection and regulation of the taking of abalone and the processing of abalone taken from Tasmanian State fishing waters.

4 The case concerned the taking and processing of abalone between 1991 and 1995. The joint appellants were fish processors. Through corporate structures they carried on this business from premises in Queensland and in Hobart. Two of the co-conspirators who were charged, Bostock and Kelly, were licensed commercial abalone divers. Another of them, the appellant Belbin, was a deckhand for Bostock and the remaining accused, Lamont, was an employee of the joint appellants in the Hobart factory.

5 In essence, all the conspiracies were agreements to understate the weight of abalone caught and processed in returns that had to be lodged with the Minister or his delegate or to omit to lodge such returns in order to deflect the Minister from carrying out his statutory duties with respect to the enforcement of the Act and regulations governing the taking and processing of abalone.

6 It was the Crown case that between 1991 and October 1995 a seafood processing business trading under the name of Royale Seafood Supplies Tasmania purchased and subsequently processed for sale to its parent company run by the joint appellants in Queensland, in addition to product the subject of legitimate sales, between 25 and 30 tonnes of abalone which had been unlawfully harvested or poached from Tasmanian fishing waters. The appellant, Georgiadis, exercised ultimate control over both the Queensland and Tasmanian businesses. In early 1991, he engaged Williams, whom he had known in Queensland, to set up the business in Hobart. Williams had no experience in the fishing or fish processing industry, but found suitable premises and commenced the enterprise. Shortly after the procuring of the premises, the appellant Georgiadis recruited Gamble, a man with considerable experience in purchasing and processing seafood. At first, lobsters were purchased and despatched to Queensland, then other seafood products and ultimately abalone. According to Williams' evidence, a suggestion was made by the appellant Georgiadis to purchase abalone "off the ticket" in the winter of 1992. This expression refers to abalone which, having been harvested by a licensed operator, is not declared in documentation required by the relevant regulations governing the commercial fishing industry and hence is not counted as part of the quota of fish to which an operator's harvest is limited. The suggestion was made by Georgiadis to Gamble, who in turn mentioned it to Williams. Williams spoke to Georgiadis and indicated his unwillingness to be a party to such transactions, but Georgiadis insisted that such a course be pursued and Williams reluctantly agreed.

7 Pursuant to the agreement, Williams and Gamble then approached persons who were prepared to supply "off the ticket" product and made arrangements for its delivery to the Derwent Park factory of the Tasmanian business, or alternatively made arrangements to collect it on behalf of that business, the necessary documentation being either deliberately not completed or falsely completed by understating the amount of abalone in fact received by Royale Seafoods Tasmania. The undeclared quantities of abalone were then, for the most part, delivered to Royale Seafoods Queensland, although some were delivered directly to customers on mainland Australia nominated by the appellant Georgiadis. Williams, on a number of occasions, took delivery of "off the ticket" abalone from the appellant Belbin, either at his home on the East Coast or at other rendezvous away from the factory, paying him by cheque. More frequently he would take delivery from Belbin of undeclared abalone at the factory. On some occasions, no documentation required by the relevant regulations was filled in at all. On other occasions, portion only of the amount of abalone received was entered in returns submitted to sea fisheries authorities.

8 In order to legally harvest and process abalone on a commercial basis between 1992 and 1995, the following requirements were imposed under the provisions of the Fisheries Act 1959 and the Sea Fisheries Regulations 1962:

(a) The diver was required to hold a commercial abalone diver's licence.

(b) The amount of abalone that could be taken under such a licence was limited by quota units specifying an amount of catch which could not be exceeded.

(c) Upon landing abalone caught, the diver was required to fill out part A of a diver's docket before leaving the landing area.

(d) The diver could only sell the abalone taken under authority of the commercial abalone diver's licence to a licensed processor.

(e) Two copies of the dive docket with part A already completed by the diver had to accompany the abalone when it was delivered by the diver, or his agent, to the processor.

(f) The processor was required to complete part B of the dive docket which had to match the weight of abalone described in part A.

(g) The diver was required, within 48 hours of landing the abalone, to forward to the Minister or to the Director of Sea Fisheries, a copy of the dive docket.

(h) Upon completion of part B of the dive docket, the processor was required to forward one of the copies of that document to the Minister or the Director of Sea Fisheries within 48 hours. The processor was also required at the end of each month to forward a return to the Minister or the Director detailing all the abalone received by the processor during the preceding month.

(i) From 1994 onwards, the processor also had to forward, at the end of each week, a return to the Minister or the Director of Sea Fisheries containing such details in respect of the previous week.

9 It was an offence to lodge dockets or returns containing false or misleading statements or to not lodge the documents at all when required. Evidence was given that these dockets and returns were then collected at the relevant government department by staff acting under the supervision of the Minister or the Director of Sea Fisheries from which the activities of licensed commercial abalone divers and licensed processors could be monitored, in particular with respect to the amounts of abalone caught by a licensed commercial abalone diver against his authorised quota entitlements.

10 Payment to Belbin was made by Williams by way of cheque drawn on the business account and payable to a person nominated by Belbin or to cash. Sometimes he asked for the cheque in his own name, sometimes in the name of Bostock or another person, sometimes payable as a cash cheque and sometimes he would ask Williams to cash the cheque himself and pay Belbin in cash, which Williams did. When the dealings in off-quota abalone first commenced, legal abalone was selling for about $24 or $25 per kilogram, while off-quota abalone was paid for by Royale Seafoods Tasmania at the rate of $18 per kilogram.

11 It was Williams' evidence that he had no contact with the appellant Theodosis in respect of off-quota transactions until June 1993 when she came to Tasmania from Queensland with an in-house accountant to inspect the documentation in the Tasmanian office. On that occasion, he showed her a book known as the "green book" in which, he told her, he kept records of the purchase of off-quota abalone. He could not remember if she made any response. He left the employ of the company shortly thereafter. He said that Georgiadis kept a close rein on the Tasmania operations and normally telephoned from Queensland once or twice each day. On many occasions he spoke to Georgiadis about off-quota abalone and was sometimes instructed to procure a specific amount to fulfil an order which Georgiadis had, while on other occasions he was asked to acquire "another bin or two" of off-quota abalone. The green book referred to above was an invoice/statement book in which a record of cheques paid for the purchase of illegal abalone was kept. The butts for cheques paid for illegal product were normally endorsed, according to Williams, as payment for "bait, or cray bait or something to that effect".

12 There was evidence that Georgiadis exercised control over the Tasmanian operation, not only by daily telephone conversations with his employees, especially Gamble and Williams, but by facsimile transmission of instructions and other documentation. He would advise how much product was required, both licit and illicit, and the price to be paid for it. Although cheques for the acquisition of product and payment of office expenses were drawn by the employees in Hobart, they would be put in funds the same day by bank transfer from a Brisbane account of the amount required to cover the cheques. This necessitated the submission to Brisbane of details of all transactions for which payments were required. This was done either by telephone or facsimile transmission.

13 According to the evidence of Gamble, Georgiadis first requested him to procure off-quota abalone some time after early 1992. Gamble introduced Williams to Belbin, who had earlier approached him asking if he were interested in buying off-quota abalone. Gamble asked Georgiadis how much abalone he wanted to buy, was given a figure and Gamble then agreed with Belbin for the purchase of that amount on the understanding that the abalone was not to be included in any of the documentation required by the relevant regulations. A pattern developed whereby Georgiadis would advise how much off-quota abalone he required and Gamble would approach Belbin for that amount, or Belbin would approach Gamble advising that he was going diving and asking if any off-quota product was required. Gamble would then telephone Georgiadis for instructions, ringing Belbin back with any order authorised by Georgiadis. The off-quota abalone would be delivered to Williams or to another employee, Jones. No other employee at the Hobart factory was aware of the purchase of off-quota abalone.

14 Gamble had no conversation with the appellant Theodosis about off-quota abalone before Williams left at the end of June 1993. Thereafter, he gave evidence, he frequently had conversations with her about how much off-quota abalone was required to be despatched to Queensland. He also took over the payments for off-quota abalone, recording, as Williams had done in the green book, the weight of abalone off-quota and the price per kilogram. In the cheque butt, the amount payable in respect of illicit abalone would be described as payable for bait. Gamble was responsible for the submission to the Sea Fisheries authorities of the monthly returns of all abalone received by the processor in the preceding month and of the dive dockets.

15 When product was sent to Brisbane from the Hobart factory, it was accompanied by documentation in the form of (inter alia) a sales sheet. That part of any consignment which consisted of off-quota abalone was variously described as live lobsters or duck bills, marked with an asterisk to differentiate them from genuine lobsters or duck bills. It was Gamble's evidence that he discussed this code with the appellant Theodosis. In other records of Royale Seafoods Tasmania, off-quota abalone was also described as "bait, duck bills, packaging, polychips and woodwool". On one occasion, on 5 June 1993, the appellant Georgiadis sent a direction by facsimile addressed to Williams or Gamble ("Andrew/George") to despatch quantities of abalone and scallops for an order to Taipei. The document included the instruction "Make sure you get abbs [sic] in. Send out as duck bills about ½ on export permit".

16 Two employees of the joint appellants working at their Queensland premises gave evidence of the delivery there of abalone which the jury could conclude was off-quota and not disclosed in returns required to be submitted to the Minister. Peter White was employed at the Queensland premises from about 1991 until about 1999. He gave evidence that both joint appellants worked in the office and regularly were on hand to receive, unpack and weigh product coming from Tasmania. All deliveries from Tasmania were labelled and in the case of lobsters, the entire package was weighed and after the lobsters had been unpacked, the packaging would be re-weighed to determine the weight of the product. In the case of abalone, they would be removed from their cartons and weighed. The packaging was not, however, weighed. Furthermore, the weight of a carton of abalone greatly exceeded that of a carton containing lobsters because they could be more densely packed. Mr White said that from time to time he noticed that the labels on the boxes coming from Tasmania containing abalone were marked "lobster" or "large lobster" with an asterisk. Product coming into and out of the factory was documented in "inward/outward sheets". In relation to a number of deliveries to the premises therein recorded in his own hand, what was entered as lobster or large lobster was in fact abalone because the carton weights recorded were not only consistent with the weight of abalone which would fit in such a carton, but also inconsistent with the weight of lobster which could be accommodated in the carton. Furthermore, no packaging weight was recorded.

17 Mr Jerome Kalwij was employed at the Brisbane factory between February 1995 and January 1997 as the bookkeeper. In his examination of the books, he discovered that fishermen in Tasmania were paid different prices, some at $18 per kilogram and others as $24 per kilogram. He telephoned Gamble, who explained that the former price was paid for off-quota abalone and the latter for quota. He said that off-quota abalone was sent to Queensland as "large live lobsters". On occasions after unloading product incorrectly labelled lobster, he entered it on the inward/outward sheet as abalone and was told by Theodosis to change the entry to "large live lobsters".

18 In addition to the conspiracy alleged in count 1 between the joint appellants and their employees Williams and Gamble, three further conspiracies to defraud the Minister were alleged. Count 2 charged a conspiracy between all three appellants and Bostock, the diver for whom the appellant Belbin worked, together with Williams, Gamble and a third employee Jones in respect of off-quota abalone procured from Bostock and Belbin. There was evidence that after Georgiadis had asked Gamble to procure off-quota abalone, Belbin contacted Bostock, who agreed to supply the same. He did so on many occasions between 1992 and 1993 when he sold his quota licences and retired from the industry. Count 3 was a similar conspiracy between all the appellants, the three abovenamed employees Williams, Gamble and Jones and a fisherman named Hutchings in respect of off-quota abalone procured from Belbin and/or Hutchings. This supply of off-quota abalone was delivered by Belbin after Bostock had retired and was procured from Hutchings. Count 4 charged a conspiracy between the joint appellants, Lamont and Kelly and the employees Gamble and Jones in respect of off-quota abalone supplied by Kelly, the other diver. Lamont was employed as a process worker at the Hobart factory and assumed duties in May 1995, which included making false entries in divers' dockets and omitting to make any entry on a docket with respect to the weight of illegal abalone received at the factory. He was involved in the conspiracy between about May 1995 and October 1995 when, as the result of a police raid on the factory, the conspiracies came to an end. Kelly supplied off-quota abalone to the factory for a period of about 18 months prior to October 1995.

19 We come now to the grounds of appeal. The numbering follows the grounds contained in the joint appellants' notice of appeal, with a cross reference where appropriate to those of the appellant Belbin.

"THAT the Learned Trial Judge erred in permitting the Crown to amend the dates in respect of counts 1 and 2 on the indictment after the evidence of the witness Gamble."

"THAT the Learned Trial Judge erred in directing the jury that before the Appellant(s) could be convicted of any count on the indictment, the jury had to be satisfied beyond reasonable doubt that the Appellant(s) conspired with at least one of the co-conspirators named in that count, given that the conspiracy charge in the indictment was confined by particulars so as to preclude the Crown from asserting and establishing a conspiracy other than one between the Appellant(s) and all other named conspirators."

(Ground 1 of appellant Belbin's notice of appeal, but confined to counts 2 and 3 in the indictment.)

22 In substance, the complaint is that each conspiracy count was an "all or nothing" count and that unless the jury were satisfied of the existence of a conspiracy of the kind alleged in each count between all the conspirators charged and named, no conviction could be sustained. The learned trial judge, speaking generally of the crime of conspiracy and before dealing with each individual count, instructed the jury:

"The Crown does not have to prove that all the persons named as conspirators were parties to the agreement. It proves a conspiracy by proving that any two of them conspired; but, of course, in order to convict an accused person the Crown must prove that he or she was a party to the conspiracy."

23 Jordan CJ set out the fundamental rule in respect of conspiracies in R v Ongley [1940] 57 WN NSW 116 at 117, when he said:

"A count in conspiracy must comply with the general rule of charging one offence only: R v Molloy [1921] 2 KB 364; R v Disney [1933] 2 KB 138. Where a count in conspiracy charges, as it should do, only one conspiracy to effect some one or more improper purposes, the only issue before the jury under that count is whether all or any of the accused are guilty of the conspiracy alleged. The jury may find that all or any two or more of the accused are guilty of a conspiracy to effect all the improper purposes alleged: Crimes Act, 1900, s 393; O'Connell v The Queen [1844] EngR 880; 11 Cl & F 155 at 236-7, or to effect some only of the improper purposes alleged: ibid 11 Cl & F at 258; but they cannot find some of the accused guilty of a conspiracy to effect only some of the improper purposes and other of the accused guilty only of a conspiracy to effect only other of the improper purposes; because to do so would be to find the existence of two conspiracies under a count which charges one only; and this, the law does not allow: ibid 11 Cl & F at 236-7, 412; The Queen v Manning 12 QBD 241 at 244."

24 The appellants place much reliance upon Gerakiteys v R (1983 - [1984] HCA 8; 1984) 153 CLR 317 where several members of the court stressed the importance of stating with clarity the precise nature of any conspiracy alleged. In particular, Murphy J, at 323, said:

"There must be regularity and precision in charges for purposes of sentencing, parole and double jeopardy, as well as to ensure that an accused person truly knows what allegations he must meet. It is essential to avoid confusion about the basis of any conviction which may result. Unless courts insist on strictness in this area there is a very real danger that, in a conspiracy trial, some members of the jury will believe the accused is guilty of conspiracy A but not B, while others will find he is guilty of B but not A. Conspiracy must not be allowed to become so amorphous that it will create a real danger of concealed duplicity of charges, so that the accused may be convicted despite the lack of unanimity among the jury members."

The appellant Gerakiteys had been convicted on a first count of conspiring with a person known as Harrison and divers others to cheat and defraud divers insurance companies. Particulars furnished by the Crown showed that nine persons other than Gerakiteys and Harrison were parties to the conspiracy, the evidence at trial being that in addition to an arrangement between Gerakiteys and Harrison there were four separate similar arrangements involving various people who were intended to make fraudulent claims on a particular insurance company. There was no arrangement to which all nine claimants were parties to defraud all those companies. At 332 - 333, Deane J said:

"It is apparent that the facts alleged by the Crown at the trial involved at least five distinct conspiracies. One consisted of a central conspiratorial arrangement between the applicant and Harrison alone that particular arrangements would be made with another person or other persons for such other person or persons to be placed in a position and furnished with the means to make fraudulent claims upon an insurance company or insurance companies. The other four were four separate consequential conspiracies to which Harrison, the member or members of one or other of the four groups of insured and, arguably, the applicant were parties involving the making of claims by the particular insured. On the other hand, the facts alleged by the Crown at the trial failed to provide a basis for a finding of a single all-embracing conspiracy between the applicant, Harrison and all of the 'divers other persons' (ie, all nine insured) involving all of the separate steps which were taken to cheat and defraud the various insurance companies. There was no general conspiracy to which all the insured were parties and no one insured was a party to a conspiracy involving the making of claims by a member of a group of insured other than his own."

"... the wording of the first charge in the indictment in the present case is so vague and imprecise that it is arguable that it refers to any one of a number of different alleged or conceivable conspiracies."

25 In our view, the draftsman of the indictment in this case has been careful to avoid any such imprecision. In relation to the first count and the particulars given thereunder, a general conspiracy was alleged between the joint appellants, who were the proprietors of the business, and Williams and Gamble, their employees at the time of its inception, to defraud the Minister by omitting to make true returns or by making false returns in the documentation required by the relevant regulations in relation to off-quota abalone to be procured by them. The second count alleged a consequential conspiracy of a similar type, but was confined to the product acquired from Belbin and Bostock. The parties to that conspiracy were alleged to be all the appellants, Bostock and the joint appellants' employees Williams, Gamble and Jones. Likewise, the third and fourth counts alleged similar consequential conspiracies confined to product acquired from Belbin and Hutchings in respect of the third count and from Kelly in respect of the fourth, the parties again being the proprietors of the business, their employees at the time and the supplier(s). In these circumstances, it was open to the jury to convict any two or more of the alleged conspirators who they were satisfied were party to the respective agreements. Reference is made to Romeo v R (1991) 65 ALJR 261 where Mason CJ, delivering the judgment of the court, said:

"The conspiracy charged in the indictment was not confined by particulars so as to preclude the Crown from asserting and establishing a conspiracy between two of the three accused."

In our view, the same, in substance, can properly be said of each count of conspiracy in this indictment. The learned trial judge was not in error in directing the jury that each appellant had only to conspire with one of the co-conspirators named in the count in question for a conviction to be valid.

"THAT the Learned Trial Judge erred in law in failing to identify to the jury the evidence that was not admissible against the Appellant(s) in respect of each count."

(Ground 2 of the appellant Belbin's notice of appeal, but confined to counts 2 and 3 of the indictment.)

27 It is well established that on a trial of this nature, it is incumbent on the trial judge to identify for the jury any potentially prejudicial evidence which is not admissible against each accused; Leary v R [1975] WAR 133; R v Minuzzo and Williams [1984] VicRp 34; [1984] VR 417; Romeo, Catanzariti & Lyster v R (1987) 25 A Crim R 80. As to the means by which that objective is achieved, in R v Minuzzo and Williams (supra), Young CJ said, at 432:

"But it is not to be thought that it is necessary to adhere to any rigid formula. Everything must depend upon the facts of the individual case and upon how the trial Judge decides to compose his charge."

28 On behalf of the appellants Georgiadis and Belbin, it is contended that the learned trial judge did not direct the jury that evidence of lies told by Theodosis when she was interviewed by the police as to the authorship of facsimiles, relied upon the Crown to form the basis of an inference of her consciousness of guilt, was inadmissible against Georgiadis and Belbin.

29 Theodosis was interviewed by the police on 13 February 1996. In the course of the interview, she denied being able to identify the handwriting of the authors of three incriminating facsimiles sent to the Hobart business. In the course of the trial, it was admitted that one of the facsimiles was written by her and the other two were written by Georgiadis. Evidence was also adduced of police interviews with accused, other than Theodosis. All the police interviews were conducted subsequent to a police raid on the business on 19 October 1995.

30 The learned trial judge directed the jury it was to consider the case against each accused separately and only on the evidence admissible against that accused. With particular reference to the use the jury could make of the evidence of police interviews with any accused, the learned trial judge instructed the jury:

"The Crown do not allege that the conspiracy continued after the police raid on 19 October 1995 so ... anything at all that was said or done by any one accused in the absence of any other accused after that date, can be taken into account only when considering the case against that accused. Messrs Bostock, Kelly and Lamont and Ms Theodosis were questioned by the police. In the case of them all except Mr Kelly those statements were video taped. The questions asked and answers given were asked and given in the absence of any other accused and what was said can only be taken into account when considering the case against ... the accused who was being interviewed. For example, what Mr Bostock said to the police is not to be taken into account when considering the guilt of anyone other than Mr Bostock. Similarly, what Mr Lamont said to the police is irrelevant except upon your consideration of the guilt of Mr Lamont, and so on with each of them who were interviewed in the absence of the others. So that is an evidentiary proposition. Is that clear, ladies and gentlemen? All right, thank you."

31 There is no ambiguity about this direction. The members of the jury were clearly told that the evidence of what one accused said in that accused's police interview could not be taken into account when considering the guilt of any other accused. The direction was not qualified elsewhere in the learned trial judge's summation and it was reinforced by other directions he gave. In directing the jury as to evidence capable of corroborating accomplice evidence against Theodosis, the learned trial judge referred to her interview with the police and any lies that the jury were satisfied she told in the course of the interview. With reference to the accused Lamont, the learned trial judge told the jury:

"As in the case of Ms Theodosis regard may be had in this context, to Mr Lamont's interview with the police."

When identifying evidence capable of corroborating accomplice evidence against each accused, including Georgiadis and Belbin, the learned trial judge did not mention police interviews with any accused other than the accused being dealt with.

32 The directions given by the learned trial judge made it plain to the jury that the evidence of what Theodosis said in her police interview, which, of necessity, included any lies the jury may have been satisfied that she told, could not be relied upon by the jury in its consideration of the guilt of any other accused.

33 On behalf of the joint appellants, Georgiadis and Theodosis, it is contended that the learned trial judge should have directed the jury that evidence of the words and acts of Robert Jones, an employee of the Hobart business, was inadmissible against the joint appellants in respect of counts 1 and 2 of the indictment, as Jones was only alleged to be a co-conspirator of the joint appellants in respect of counts 3 and 4 of the indictment. The premise for this submission is, in part, misconceived. Jones was alleged to be a co-conspirator in respect of count 2, as well as counts 3 and 4. As to the evidence of Jones, a similar contention to that advanced on behalf of the joint appellants, is advanced on behalf of Belbin who only faced charges on counts 2 and 3 of the indictment. On his behalf, it is submitted that the learned trial judge should have directed the jury to disregard the Jones' evidence which related to count 4 of the indictment in considering the charges against Belbin.

34 Jones was employed by the Hobart business between September/October 1993 and August or later in 1995. He performed general floor work at the Derwent Park factory, including driving work such as deliveries and pickups. After Williams' involvement in the business ceased in late 1993, Jones' position with the business was described as that of production manager, although the nature of his work did not change. His first involvement with off-quota abalone was an occasion when, at the direction of Williams, he collected abalone from Belbin and Bostock at Belbin's residence and was not provided with a dive docket. Over a period of about three months or so, Williams sent Jones to collect off-quota abalone about eight or nine times. On a number of occasions, Jones was involved in the delivery of cash payments to Belbin. Some time after the commencement of Jones' employment in the business, he, upon the instructions of Gamble, began accepting regular weekly deliveries of abalone from Kelly accompanied by dive dockets which did not record the correct weight of the abalone delivered. Jones had no discussion with either of the joint appellants about off-quota abalone.

35 Jones' evidence establishes that at the direction of Williams and Gamble, off-quota abalone was purchased from Bostock, Belbin and Kelly. Jones also gave evidence of the system adopted by the business when dealing with off-quota abalone which included recording it in the company records as "large lobsters" accompanied by an asterisk. His evidence was directly relevant to establishing the existence of a system of purchasing off-quota abalone in the Hobart business between September/October 1993 and late 1995. This evidence was relevant to the existence of the conspiracies which are the subject of the conspiracy counts and was not evidence of the nature of hearsay evidence of the participation of either Georgiadis or Theodosis in those conspiracies. As to the direct relevance of this evidence, the following passage from R v Masters (1992) 26 NSWLR 450 is apposite. In their joint decision, the members of the court, Hunt CJ, Allen and Badgery-Parker JJ said, at 461:

"In order to establish the existence of the conspiracy, evidence is admissible of acts done or statements made by persons other than the particular accused even if he were not present - not (so far as the statements are concerned) to prove the truth of what was said but in order to establish, from the fact that the acts were done or the statements were made, the inference that the agreement which constituted the conspiracy charged had been entered into: Ahern v The Queen (at 93-94). That evidence is direct evidence, not hearsay (ibid at 93); and it is admissible for that purpose even if the acts were done or the statements were made before the particular accused joined or became a participant in that conspiracy, for it does not depend in any way upon any acknowledgement or acceptance of the truth by that accused of the statements so made."

36 The Jones' evidence relates to a period which was covered by each of the four conspiracy counts. As to each conspiracy count, the evidence was relevant to the issue of the existence of the conspiracy which is the subject of the count. There was, accordingly, no reason for the learned trial judge to direct the jury that any of the Jones' evidence was inadmissible as against any of the three appellants.

37 Counsel for Belbin submits that a substantial quantity of evidence, which he detailed in his written submission, is solely relevant to counts 1, 4, 5 and 6 of the indictment, with which Belbin was not charged, and that the learned trial judge should have identified this evidence and directed the jury that it was inadmissible against Belbin on the charges he faced on counts 2 and 3 of the indictment.

38 Belbin's involvement in the activities which underpinned the conspiracies upon which counts 2 and 3 of the indictment are based, began in September 1992 and concluded in March 1995. The evidence about which Belbin's counsel makes complaint is a great deal of evidence of matters which occurred after March 1995, by which time Belbin's involvement in the asserted conspiracies had ceased, and in some instances, evidence of matters which occurred even later, subsequent to the police raid on the business on 19 October 1995. The evidence referred to includes:

* a substantial number of listening device audio recordings of conversations, involving persons other than Belbin, between 13 September 1995 and 12 October 1995 and the transcripts of the same;

* exhibits of paperwork referable to off-quota abalone transactions of the business after March 1995 and oral evidence about the same;

* documentary and oral evidence of various events which occurred after March 1995;

* evidence in relation to counts 5 and 6 of the indictment, that is, two charges of perverting justice laid against Theodosis based on actions taken by her subsequent to 19 October 1995.

39 In a case such as this, it would have been impractical and confusing for the trial judge to have specifically identified each item of evidence that was not relevant to a charge against a particular accused and direct the jury to disregard it. The course adopted by the learned trial judge was to explain to the jury in general, but appropriately clear and prescriptive terms, what evidence was relevant against an accused on a charge. He said to the jury:

"I have to give you some directions in law about the evidence - the admissible evidence generally.

As I have already told you, it is your task to consider if you are satisfied beyond reasonable doubt of the guilt of each accused separately and only on the evidence admissible against each accused. It is as if there are 6 separate trials going on at the same time .. because there are six accused, of course - and not all of the evidence that you have heard is evidence against all of the accused.

I have already told you that it is possible for a criminal conspiracy to exist and for persons to join and to leave that conspiracy. For example, according to Williams, the conspiracy started with a conversation with Mr Georgiadis in the winter of '92. There was other evidence in the documents G T 6 and G T 7, and the cross-examination of Gamble which you might think showed that dealings in off the ticket abalone from Mr Bostock began as early as three months after Gamble started at Royale Seafoods, but at all events, whenever it began, so far as Williams is concerned, he ceased to be a party to it after he left in June 1993. Similarly, it appears from the evidence, that Mr Bostock apparently retired at some stage and according to the evidence of Gamble by about mid 1993 he ceased to receive abalone from Mr Bostock, so if you are satisfied that Mr Bostock was a party to a conspiracy, you will no doubt think that by about mid 1993 he'd ceased to be a party to it ...

On the other end of the time scale, Gamble's evidence was that Mr Kelly did not supply any off the ticket abalone until July 1994 so on that evidence, Mr Kelly could not have been a party to any conspiracy before that.

So the first proposition is that all the evidence, written or oral, that tends to prove the existence of one or more of the three alternative conspiracies charged during the period specified in the counts is admissible against each of the accused to prove the first issue of whether there was a conspiracy as charged. But, on the issue of whether any one of the accused was a party to one of the three alternative conspiracies charged, your deliberations are confined to the evidence, written and oral, of words and acts, done in furtherance of the conspiracy, that occurred during the period that you are satisfied that that accused was selling, in the case of Belbin, Bostock and Kelly, or buying, in the case of Georgiadis, Theodosis and Lamont, off the ticket abalone. For example, anything that the others might have said or done after Mr Bostock retired cannot be taken into account when considering the issue of whether he was a party to one of the charged conspiracies in the case against him and similarly, nothing that was said and done by the others in furtherance of the conspiracy prior to Mr Kelly selling off the ticket abalone to Gamble can be taken into account when considering the question of whether Mr Kelly was a party to any charged conspiracy. The same thing goes for Mr Lamont who, as I have said, on the evidence of Mr Jones had no dealings with off the ticket abalone until the time he - that's Jones - went off sick with a bowel operation. During the period that you are satisfied that any one of the accused was a party to the conspiracy you can take into account the words and acts of those whom you are satisfied were at that time co-conspirators provided that those words and acts were in furtherance of the conspiracy charged. A substantial illustration of this proposition concerns the case against Mr Bostock. Remember that the conspiracy charged is to defraud/pervert justice/commit the crime and the Crown case is that the substantial evidence of that is the dealings of abalone. So, in that case- that's against Mr Bostock - the words and deeds of his deck hand, Mr Belbin are admissible against Mr Bostock, I should add - provided of course they were done in furtherance of the conspiracy. Not everything he said, but everything that he said and did in furtherance of the conspiracy."

40 This direction was reinforced by the direction which follows it, which is set out in par30 of these reasons, in the course of which the learned trial judge explained to the jury that as the Crown did not allege that the conspiracy continued after the police raid on 19 October 1995, anything said or done by an accused after that date in the absence of another accused, could not be taken into account when considering the case against the absent accused.

41 Relating these directions to the Crown case against Belbin, the jury was clearly directed that as to whether Belbin was a party to the conspiracies which were the subject of the charges against him, their deliberations were confined to the evidence, written and oral, of the words and acts done in furtherance of the particular conspiracy that occurred during the period that the jury were satisfied that Belbin was selling off-quota abalone; that is, their deliberations were confined to evidence of matters which transpired prior to March 1995. Accordingly, the jury were directed to exclude from their considerations the evidence referable to matters which occurred after March 1995, albeit by means of a generic reference to that evidence, rather than the identification of each particular item of evidence. This is the evidence about which counsel for Belbin complained. The complaint is not sustainable.

42 A further tranche of the evidence which counsel for Belbin submits should have been the subject of a specific direction that it was inadmissible against Belbin is documentary and oral evidence as to the involvement of the accused Paul Kelly in the conspiracy. On the evidence of Gamble, Kelly first supplied off-quota abalone to the business in May 1994. The evidence about which complaint is made relates to Kelly's involvement in the business from that time until October 1995. The evidence draws no link between Kelly's sales of off-quota abalone to the business and the sales effected via Belbin. They were entirely separate transactions. There was no evidence that Kelly or Belbin knew of each other's activities or even knew each other. In the circumstances, it is highly unlikely that the jury would have considered any evidence of Kelly's sales to the business when considering whether Belbin was a party to the conspiracies which are the subject of counts 2 and 3 of the indictment. In any event, the learned trial judge directed the jury that:

"In order to determine whether there was a conspiracy on any one count and, if so, in order to determine its scope and purpose, you are entitled to look at the proven acts, conduct and words in furtherance of the unlawful agreement of all the conspirators alleged in that count. If you are satisfied beyond reasonable doubt that there was a conspiracy of a particular scope and purpose, you then look at the proven acts of each accused in order to determine whether you are satisfied beyond reasonable doubt that that accused was a party to the conspiracy ...".

43 Kelly was not named as an accused or a co-conspirator in counts 2 or 3 of the indictment. Accordingly, consistent with this direction, the jury were not to pay regard to the evidence referable to Kelly when considering these counts.

44 We conclude that insofar as any evidence relied on by the three appellants in support of this ground was inadmissible against a particular appellant, the directions of the learned trial judge sufficiently identified that evidence and required the jury to disregard it.

"THAT the Learned Trial Judge erred in failing to direct a [sic] jury as to how they were to deal with the evidence admissible against the Appellant(s) pursuant to the 'Co-Conspirators' Rule'."

(Ground 3 of the appellant Belbin's notice of appeal, but confined to counts 2 and 3 of the indictment.)

46 After directing the jury as to the elements of the crimes charged in the indictment, the learned trial judge proceeded to give directions concerning the evidence. In that regard, he first pointed out that a criminal conspiracy could exist with persons joining and leaving that conspiracy while it continued. His Honour reminded the jury of evidence given by Williams that the first conspiracy started with a conversation he had with the appellant Georgiadis in the winter of 1992; evidence that purchases of off the ticket abalone from the co-accused Bostock began three months after Gamble started working for Royale Seafoods (in about Easter 1991); evidence that Williams ceased to be a party to any conspiracy once his employment by Royale ceased in June 1993; evidence that Bostock retired and ceased to supply abalone by about mid-1993 and was no longer a party to the conspiracy thereafter; and evidence that the co-accused Kelly could not have been a party to it until July 1994, because that was when he first supplied off the ticket abalone.

"The first proposition is that all the evidence, written or oral, that tends to prove the existence of one or more of the three alternative conspiracies charged during the period specified in the counts is admissible against each of the accused to prove the first issue of whether there was a conspiracy as charged. But, on the issue of whether any one of the accused was a party to one of the three alternative conspiracies charged, your deliberations are confined to the evidence, written and oral, of words and acts, done in furtherance of the conspiracy, that occurred during the period that you are satisfied that that accused was selling, in the case of Belbin, Bostock and Kelly, or buying, in the case of Georgiadis, Theodosis and Lamont, off the ticket abalone."

48 The learned trial judge then gave examples, such as that anything the others said or did after Bostock retired could not be taken into account when the jury were considering the issue of whether he was a party to one of the charged conspiracies in the case against him. His Honour then continued:

"During the period that you are satisfied that any one of the accused was a party to the conspiracy you can take into account the words and acts of those whom you are satisfied were at that time co-conspirators provided that those words and acts were in furtherance of the conspiracy charged."

49 The learned judge then illustrated what he was saying by explaining that in the case against the co-accused Bostock, the words and deeds of his deck hand Belbin that were said or done in furtherance of the conspiracy, but not otherwise, were admissible against Bostock. His Honour also explained that because the Crown did not allege that the conspiracy continued after a police raid on 19 October 1995, nothing thereafter said by one accused in the absence of another accused, particularly in interviews with the police, could be taken into account when considering the cases against the other.

50 The law was settled by Ahern v R [1988] HCA 39; (1998) 165 CLR 87 at 94 - 95:

"When two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others: Tripodi (1961) 104 CLR at 7. Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency ...".

51 The following proposition also comes from Ahern v R at 100. Evidence in the form of acts done or words uttered outside the presence of the accused by a person alleged to be a co-conspirator will be admissible to prove the participation of the accused in the conspiracy where:

1 it is established that there was a combination of the type alleged;

2 it is established that the acts were done or the words were uttered by a participant in furtherance of its common purpose; and

3 there is reasonable evidence, apart from the acts or words of the alleged co-conspirator, that the accused was also a participant.

Satisfaction of the third requirement is to be determined by the trial judge and not by the jury. Ahern at 103 - 104. The statement of the Full Court of the Federal Court in Conway v R [2000] FCA 461; (2000) 172 ALR 185 at 243 that the trial judge should direct the jury that they must first consider the evidence directly admissible against a particular accused in order to find "reasonable evidence" of his participation in the crime charged before using the acts or declarations of any co-conspirator against him, is contrary to Ahern v R and is not correct. It will not always be necessary for the trial judge to rule formally upon the existence of reasonable evidence, just as it is not always necessary for a formal ruling to be made that there is a case to answer. Often, it will be obvious to everyone that such evidence has been established. R v Masters (1992) 26 NSWLR 450 at 465 - 466.

52 The learned trial judge was satisfied that there was reasonable evidence, apart from evidence of the acts and words of their alleged co-conspirators, that each of the appellants was a participant in the conspiracies respectively alleged against each of them. There was ample evidence in that regard and the contrary was not submitted for the appellants. It was therefore, appropriate for his Honour to instruct the jury that if they were satisfied that there was a combination of the type alleged and that certain acts were done and words uttered by a participant in furtherance of its common purpose, the jury were entitled to use the evidence of those acts and words to prove the participation of the respective appellants in that conspiracy.

53 The first direction of the learned trial judge that all the evidence written, or oral, that tended to prove the existence of one or more of the charged conspiracies was admissible against each of the accused, to prove the issue of whether there was such a conspiracy, was in accordance with Ahern v R at 93. It was explained in R v Masters (supra) at 461, that in order to establish the existence of a conspiracy, evidence is admissible of acts done or statements made by persons other than a particular accused even if he or she was not present. Evidence of such acts and statements may establish an inference that the agreement which constituted the conspiracy charge had been entered into. The evidence is direct evidence, not hearsay, and it is admissible for that purpose even if the acts were done or the statements were made before the particular accused joined or became a participant in that conspiracy, for it does not depend in any way upon the acknowledgement or acceptance of the truth by that accused of the statements so made.

54 Also in accordance with authority was the second direction of the learned trial judge that on the other hand, on the issue of whether any one of the accused was a party to a conspiracy charged, the jury's deliberations were confined to the evidence, written and oral, of words and acts said and done in furtherance of the conspiracy during the period when that accused was selling or buying off the ticket abalone (because a scheme involving selling and buying off the ticket abalone was an essential part of each conspiracy). On the evidence and in the circumstances of this case, anything said or done by one of the co-conspirators outside that period of time would not have been said or done in furtherance of any purpose that was common with the accused. Tripodi v R [1961] HCA 22; (1961) 104 CLR 1 at 7; Ahern v R (supra) at 100; R v Masters (supra) at 461.

55 After explaining the second direction with examples, the learned trial judge then made what we will describe as the third direction, when he said that "during the period that you are satisfied that any one of the accused was a party to the conspiracy you can take into account the words and acts of those whom you are satisfied were at that time co-conspirators provided that those words and acts were in furtherance of the conspiracy charged". Counsel for the joint appellants submitted that the learned trial judge erred in that passage, by leaving it to the jury to determine whether there was reasonable evidence, apart from the actual words of alleged co-conspirators, that each of the appellants was also a participant. In our opinion, there was nothing in what was said by his Honour that directed the jury to determine that question. It is arguable that the opening words of the third direction were erroneous as unduly favouring the appellants, for it was not necessary that the jury should first be satisfied that an accused was a party to the conspiracy before they could take into account the words and acts of co-conspirators said or done in furtherance of the conspiracy. However, the direction needs to be considered in the light of the second direction, by which it had also been made clear to the jury that when determining whether any one of the accused was a party to a conspiracy, they could have regard to the words and acts of co-conspirators said or done in furtherance of the conspiracy.

56 The directions to which we have referred should also be considered in the light of other directions given much earlier in the summing up, when his Honour was dealing with the elements of the crime of conspiracy. He explained that since it was an unlawful agreement that constituted the crime, it was necessary to ask two questions in the case of each accused who was alleged to be a conspirator: first, was there an agreement of the kind alleged between two or more persons; and second, was the accused a party to that unlawful agreement? The jury were directed to consider the proven acts of each accused in order to determine beyond reasonable doubt whether that accused was a party to the conspiracy. If there was any error in that passage, it was favourable to the appellants, for it made no reference to a consideration of the words and acts of co-conspirators said or done in furtherance of the conspiracy.

57 It was submitted for the appellants that an exposition of the law concerning the co-conspirators rule, followed by a summary of the facts, was insufficient, and that it was incumbent upon the learned trial judge to explain to the jury how that law applied to the facts. Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466. Up to a point that is correct, and his Honour did do much more than is suggested by that simple statement of the submission. However, it was not necessary that his Honour should explain in detail how every piece of evidence could be used. All that was required was that there be sufficient clarity and detail in the summing up to enable the jury to adequately comprehend what they were being told and how they should apply the law to the evidence.

58 A major probative effect of the co-conspirators rule will often be that what would normally be excluded as hearsay will be available for use by the jury to prove not merely that there was a combination or conspiracy, but also that the accused was a party to it. Counsel for the respondent submitted that there was hardly any evidence of that kind that could have been used against the appellants and that the failure of the learned judge to specifically refer to it in his summing up was not significant. He correctly submitted that most of the evidence that implicated the appellants in the alleged conspiracies was either direct evidence of their participation or circumstantial evidence that did not depend on the co-conspirators rule for its admissibility.

59 Counsel for the appellant Belbin mentioned no hearsay evidence implicating him in a conspiracy. Counsel for the joint appellants Georgiadis and Theodosis, could only point to one item of hearsay evidence (given by two witnesses, Williams and Gamble) implicating Georgiadis in a conspiracy, and none implicating Theodosis. He could give no other examples. The evidence concerned what occurred in about the winter of 1992 and was as follows. Gamble gave evidence that the appellant Georgiadis telephoned him and asked him to buy some cheap abalone. As a result he, Gamble, told Williams that Georgiadis wanted them to buy cheap abalone off the ticket. Williams' response was that he was not happy about the idea and that it was too risky and he said he would speak to Georgiadis. When Gamble later spoke to Georgiadis the latter confirmed that he wanted them to go ahead and purchase off the ticket abalone. As a result of that, Gamble then contacted Belbin and made arrangements for the purchase of off the ticket abalone. Georgiadis instructed Gamble as to how much he wanted and what to pay for it. The evidence of Williams was that Gamble told him that he had just had a telephone conversation with Georgiadis, who wanted them to purchase off the ticket abalone. Williams said that he had no memory of discussing with Georgiadis that Gamble had told him of that request, but he, Williams, discussed with Georgiadis what the latter wanted them to do and he told Georgiadis that he was very unhappy with the idea and that it was something that he did not think they should get involved in. The response of Georgiadis was that he was unwilling to hear him on the matter. He said that the business was not making money, in fact it was losing money, and he wanted to purchase off the ticket abalone for that reason. In summary, therefore, both Gamble and Williams gave evidence of the initiation of the conspiracy by Georgiadis. Their evidence that Gamble told Williams that he had been so requested by Georgiadis was hearsay evidence against the latter. It was not in fact admissible against him pursuant to the co-conspirators rule because it was evidence of the initial formation of the conspiracy and not evidence of a statement made in furtherance of the conspiracy. R v Masters (supra) at 461.

60 The failure of the learned judge to instruct the jury to disregard the evidence that Gamble told Williams of Georgiadis' request that they purchase off the ticket abalone, could not have amounted to a miscarriage of justice. It was a small item of evidence in a trial that occupied many weeks. The defence of Georgiadis was that Gamble and Williams were members of a conspiracy that purchased off the ticket abalone without his knowledge, and that they did so for their own financial benefit. He denied initiating such a conspiracy and requesting both of them to purchase off the ticket abalone. The probative force of their evidence that he initiated their illicit activity was not strengthened by their evidence that one of them told the other that he had done so. That they added to their evidence that he initiated the conspiracy that they talked to each other about him doing so, could not have influenced the jury's verdict. Further, no objection to the evidence was made at the trial (or raised at the hearing of the appeal), nor was his Honour requested by counsel for Georgiadis to warn the jury about misusing the evidence. See R v Saffron (1988) 17 NSWLR 395 at 434.

61 Another effect of the co-conspirators rule will often be to allow to be used other hearsay evidence, not evidence implicating a particular accused in a conspiracy, but to establish that there was a conspiracy of a particular kind and its nature and extent. In this case there was some evidence of that kind, but it was not, in our view, necessary that the learned trial judge should refer to it all in detail. It was made clear that the jury could use it for the purpose for which it was admissible. There was no risk that without referring to it in detail the jury might improperly use it to infer from it that the appellants were members of a conspiracy.

62 A considerable amount of evidence given at the trial was admissible under the co-conspirators rule, but it was admissible in any event without the rule's application. For example, evidence that Williams and Gamble were engaged in purchasing off the ticket abalone for the Tasmanian company, recording its purchase in records by the use of codes and forwarding it to Queensland with supporting documents that also used codes to disguise that it was abalone, was admissible against the joint appellants without the need for reliance on the co-conspirators rule. At a late stage of the trial, the learned trial judge commented that so much had been made of the co-conspirators rule before the case began, but that it had "really fizzled away", and he referred to the evidence that might have been thought to be admissible under the rule as admissible in any event as "ordinary circumstantial evidence". He was correct in what he said. It was submitted for the appellants that as there were four conspiracies alleged by the Crown, with some common parties and some not, with conspirators entering and leaving the various conspiracies, the learned trial judge should have identified which of the evidence, admissible under the co-conspirators rule, was admissible against each of them and on which counts. In our view, it would have been an enormous task for the judge to have done so and it would not have benefited the jury. So much detail would have had to be provided to the jury that they could not have absorbed, comprehended and applied it in any sensible way. The directions that were given were simple and easy to understand. They were sufficient for the purpose of enabling the jury to understand their duty and what evidence could be used against the various accused persons. There were six people standing trial. There were six counts. In all, the six accused respectively faced a total of 15 charges and to allocate the evidence admissible under the co-conspirators rule between them could not have been done successfully, item by item. The combinations and permutations would simply have been too many for the learned judge to have successfully coped with for the purpose of informing the jury.

63 We will not repeat what his Honour said. We have referred to some of it. The directions clearly explained how the jury should go about applying the evidence when considering their verdict with respect to each accused on the respective counts.

64 We conclude that ground 4 has not been established by any of the appellants.

"The conviction of the appellants on counts 1 - 4 inclusive of the amended indictment are nullities on the ground that the appellants Georgiadis and Theodosis were married on 27 February 1994 and pursuant to s297(2) of the Criminal Code the appellants are not criminally responsible for any conspiracy between themselves only."

"By reason of new evidence in the form of a certificate of marriage evidencing the fact that the appellants Georgiadis and Theodosis were married on 27 February 1994, a substantial miscarriage of justice has occurred.

By virtue of s297(2) of the Criminal Code the appellants Georgiadis and Theodosis could not be convicted of a conspiracy between themselves only and the jury should have been so directed."

66 It is convenient to deal with both of these grounds at this stage as the direction the subject of ground 2 opens up the theoretical possibility that the joint appellants were convicted by the jury on the evidence admissible against them of conspiring with each other alone. At the commencement of the appeal, Mr Grace QC sought leave to amend his clients' notices of appeal by adding ground 5, and during the course of it, he sought leave to add ground 8. Neither application was opposed by the respondent, nor was the tender by Mr Grace of a certificate of marriage of the joint appellants on 27 February 1994.

(2) A husband and wife are not criminally responsible for any conspiracy between themselves only."

68 As to ground 5, prior to the decision of the High Court in R v Darby (1981 - [1982] HCA 32; 1982) 148 CLR 668, it was accepted in Australia that where two persons were charged with conspiracy and one was convicted while the other was acquitted, whether at the same trial or thereafter, the conviction of the first could not stand and required to be quashed as a nullity. This old common law rule was pointed out by Lord Dilhorne in Director of Public Prosecutions v Shannon [1975] 1 AC 717 at 758:

"... appears to have been based on the ground that the conviction of only one of two charged with conspiring together or of only one of a number of persons charged with conspiring together in the same indictment meant that there was a repugnancy on the record which could only be corrected by quashing the conviction. In olden days it was not possible for the appellate court to examine and to consider whether the evidence justified a finding that one conspirator alone was guilty. Proceedings by way of writ of error were taken to correct the record. Since the Criminal Appeal Act 1907, which abolished proceedings by writ of error, it has been possible for the Appellate Court to examine and to consider the evidence against each conspirator tried."

"At the same time it was recognised that if one conspirator was tried alone and convicted, his conviction was not invalidated by the possibility that his co-conspirator or co-conspirators might later be brought to trial and acquitted (Thody's Case (1674) 1 Vent 234; Rex v Kinnersley and Moore (1719) 1 Stra 193; Rex v Cooke [1826] EngR 607; (1826) 5 B & C 538; Reg v Ahearne (1852) 6 Cox CC 6)."

In Darby's case (supra), the justices in the majority, namely Gibbs CJ, Aiken, Wilson and Brennan JJ said at 678:

"In the light of the wealth of both academic and judicial consideration that has been devoted to this topic in recent years, we have no doubt that this Court should now redirect the common law of Australia on to its true course. It should determine that the conviction of a conspirator whether tried together with or separately from an alleged co-conspirator may stand notwithstanding that the latter is or may be acquitted unless in all the circumstances of the case his conviction is inconsistent with the acquittal of the other person. In our opinion such a determination will focus upon the justice of the case rather than upon the technical obscurities that now confound the subject. "

69 In the present case, there was nothing, even on the face of the record, to show that the joint appellants were husband and wife at any material time, or that the conspiracies of which they were convicted were conspiracies between themselves only. Even assuming the fact to be that they were married on 27 February 1994, each conspiracy count alleged that they had conspired with several other persons and their conviction on each count is not repugnant to, or inconsistent with, their inability at law to incur criminal responsibility for a conspiracy to which they alone were parties; nor in our view does the possibility that, in the light of the direction the subject of ground 2, the jury may have only been satisfied that the joint appellants were the only parties to any one or more of the conspiracies alleged, invalidate their conviction on each count. That possibility and the absence of any direction from the learned trial judge that husband and wife could not be convicted of any conspiracy between themselves only does not make the convictions a nullity. They could only be quashed in the circumstances of this case if the Court were of the opinion that there had been a miscarriage of justice.

70 Ground 8 raises the assertion that the new evidence of the joint appellants' marriage has resulted in a substantial miscarriage of justice by reason of the fact that the jury were not given a direction of the kind just adverted to. From the review of the facts already essayed, it is apparent that each of the conspiracies to which either of the joint appellants was a party required the active participation of people in Tasmania. The fraud on the Minister perpetrated by failing to fill in returns in respect of off-quota abalone, or filling in false returns, which was the gravamen of each conspiracy count, could only have been achieved by the deliberate omissions or acts of one or more of the employees of Royale Seafoods Tasmania or the divers, while the agreement of the suppliers of off-quota abalone was also essential. While the learned trial judge was correct in directing the jury that so long as they were satisfied that at least two of the alleged conspirators were parties to the conspiracy in the count under consideration they might convict those two, though not satisfied of the participation of other co-conspirators, and while this in theory left open the possibility of a conviction of the joint appellants without a finding of the participation of other co-conspirators, the reality is that no reasonable jury could have reached such a conclusion. It would have flown in the face of all the evidence. It was not the joint appellants' case that they had conspired on their own. Their case was that without their knowledge, the conspiracies to defraud the Minister had been entered into between Gamble, in particular, and the various suppliers of off-quota abalone. The learned trial judge gave the jury the following direction in the course of his summing up:

"There is I think little dispute that Messrs Belbin, Bostock, Lamont and Kelly and of course Gamble, Jones and Williams, were all familiar with the form of dive dockets and some of them at least were also familiar with the form of processors' returns. I must make it clear to you that it is not necessary that the Crown satisfy you beyond reasonable doubt that all of the alleged conspirators were familiar with those exact documents. It is sufficient if you are satisfied beyond reasonable doubt that there was an unlawful agreement to falsify or omit to declare the weight of abalone caught and/or documents in some form that had to be sent in to the authority responsible for controlling the abalone fishery and recording such information. You see, I do not think that there has been any evidence that Mr Georgiadis or Ms Theodosis ever saw a processor's return or a dive docket. Well that does not matter so long as you are satisfied beyond reasonable doubt that each of them entered into the unlawful agreement charged with the full understanding that documents of some kind which correctly recorded the weight of abalone caught and/or bought had to be sent to the authority responsible for regulating the abalone fishery."

In those circumstances, there was no possibility of a conviction based upon a private conspiracy between the joint appellants only to defraud the Minister in the way alleged. It follows that the omission of a direction concerning the effect of the Code, s197(2) could have had no bearing on the outcome.

71 Furthermore, this was not an issue raised at trial and no such direction was sought. The marital status of the joint appellants was peculiarly within their knowledge. They were not residents of Tasmania; they were not married here, and save for one occasion, they were always referred to on trial as John Georgiadis and Julie Theodosis respectively. The only evidence at trial suggesting the possibility that they were husband and wife was the following:

(a) Gamble's wife worked for her husband on a part-time basis commencing in about the end of 1993. She gave evidence that after about six months "Julie sent a fax down to see if I'd do full time work". She was then asked by Crown counsel leading her, "Who was that, Julie who?". She replied, "John's wife Julie, Mrs Georgiadis". This was not evidence that they were married during the course of the conspiracies. Indeed, it was not evidence that they had entered into a valid marriage.

(b) On 13 February 1996, the appellant Theodosis was interviewed by police in Brisbane. The following exchanges took place:

"Q Who owns Royale Seafoods Supplies Queensland Pty Ltd?

Q Alright then. Who manages that company in Brisbane?

A I can't really answer you too many questions. The person that you really should be speaking to is my husband. He's, he runs the whole company.

Q Are you aware of the manager of Royale Seafoods Supplies Tasmania?

Q Would you regularly correspond by or speak, communicate with him by fax or phone?

At best this is evidence that as at the time of the interview they may have been married. Neither piece of evidence is, in our view, capable of establishing the fact that the joint appellants were lawful husband and wife at any time during the course of the conspiracies. (See generally Cross on Evidence, 6th Australian edition, par 41075.)

72 Given the absence at trial of evidence of the marriage bond at any material time and the necessity to establish not only the fact of the marriage, but the fact that a finding that the conspiracies were between the joint appellants only could have been made by the jury, ground 8 involves a question of fact or a mixed question of fact and law which, by virtue of the Criminal Code, s401(1)(b)(ii) requires the leave of the Court. Where reliance is placed on new evidence as opposed to fresh evidence strictly so called, that is evidence of which the accused was aware at the time of his trial and evidence which he could not have discovered with reasonable diligence, an appellate court will not intervene, save in exceptional circumstances, unless the evidence persuades the Court that the verdict must be quashed without more. In Ratten v R [1974] HCA 35; (1974) 131 CLR 510 at 520, Barwick CJ, in a judgment with which McTiernan, Stephen and Jacobs JJ expressed their agreement, summed up his conclusions as follows:

"To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence.

73 In Lawless v R (1978 - [1979] HCA 49; 1979) 142 CLR 659, Mason J (as he then was) expanded on the reasons for this approach. At 675 - 676 he said:

"... it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.

The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. No such reason for disturbing a conviction presents itself if all that emerges is that the accused has deliberately chosen not to call evidence or that he has failed to search out evidence with reasonable diligence, unless the evidence not called at the trial demonstrates that the accused should not have been convicted of the offence charged. If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand. After all, in a criminal appeal uncomplicated by the existence of newly adduced evidence it is not a ground for the setting aside of a conviction and the ordering of a new trial that the appellate court itself considers that it was unlikely on the evidence that the jury would have convicted. If there was evidence on which the jury could reasonably convict, the verdict must stand, for in such a case there is no miscarriage of justice. So it is when evidence not called at the trial, not being fresh evidence when considered with the evidence given at the trial, leads to the conclusion that the jury could reasonably convict, though it appears to the appellate court that it would be unlikely to do so. There is then no miscarriage of justice because the jury has arrived at a verdict which is unimpeachable and the new evidence produced on the appeal falls short of establishing that the accused should not have been convicted, it being the fault of the accused that the new evidence was unavailable at the trial."

74 In the present case, the evidence is not fresh evidence. It was known to both appellants and could have been advanced by them at the trial had they chosen to do so. It could not have led automatically to an acquittal because that was dependent not only upon the fact of the marriage, but also upon the fact that the conspiracy was one between them only. For the reasons already advanced, the latter finding was not only unlikely, it would have been quite unreasonable. In our view, ground 8 does not afford a basis for our intervention.

"The Learned Trial Judge erred in law in his directions to the jury in relation to circumstantial evidence, thereby giving rise to a substantial miscarriage of justice.

(i) His Honour failed adequately or at all to instruct the jury which evidence in the Crown case, as a matter of law, was direct evidence and which was circumstantial.

(ii) His Honour failed to identify to the jury the intermediate facts in these [sic] Appellants' case, which were indispensable to an inference of guilt.

(iii) His Honour failed to direct the jury that, as a matter of law, any intermediate facts which were indispensable to an inference of guilt, were required to be established to their satisfaction beyond reasonable doubt."

76 The learned judge gave a number of directions with regard to circumstantial evidence. When directing the jury about the ingredients of count 6, which charged the appellant Theodosis with perverting justice (she was acquitted of it), his Honour pointed out that there was no direct evidence that she had altered any sales invoices or instigated anyone else to do so, as was charged. The jury was instructed that the Crown case on count 6 was based only upon circumstantial evidence, and that where a case was based upon circumstantial evidence alone, a jury could only find the accused guilty if it was satisfied beyond reasonable doubt that guilt was the only reasonable inference that the jury could draw from the evidence it accepted. The jury was directed that if there was some reasonable or rational explanation of the evidence other than that the accused was guilty, the jury must acquit.

77 Later, the learned judge gave another circumstantial evidence direction, when dealing with the four conspiracy counts, in the following terms:

" Circumstantial evidence direction: I have already referred to this when directing you about the law concerning perversion of justice charged against Ms Theodosis on count 6, but it is important that I return to it with respect to all the charges of conspiracy. Direct evidence of the commission of a crime means a full admission of guilt by an accused or an account from a witness who said that he or she saw the crime being committed. Because of its nature, there is seldom direct evidence of the commission of the crime of conspiracy unless there is a full admission or a witness states that he made an oral or written agreement with someone else or he overheard that being done. How else could you have direct evidence that there was an unlawful conscious understanding of a common design between two or more people? In this case, as in many conspiracy cases, ... virtually the whole of the evidence is indirect or circumstantial evidence The evidence on which the Crown relies is like a number of bricks. The Crown submission to you is that brick by brick, the pieces of circumstantial evidence all fit together in such a way that in the end the only rational explanation of all that evidence is that the crime charged was committed. For the defence it is submitted - and each accused submitted this, or it was submitted on behalf of each accused, that there are insufficient acceptable bricks, or that the bricks don't fit together so you can't say that the only rational explanation of the evidence that you accept is that the crime charged was committed. The direction I give you is quite simple. In this case, you cannot convict any one of the accused of the crime of conspiracy unless you are satisfied beyond reasonable doubt from the evidence that you accept, that there is no other rational explanation for that evidence other than that accused is guilty of that crime. ... If there is any rational or reasonable explanation of the evidence, other than guilt - other than that the accused is guilty of the crime of conspiracy, that you cannot exclude ... you must acquit. So it is really a simple proposition, ladies and gentlemen. You say well, look, this is all the evidence we accept. Is there any reasonable explanation for it? We think about what Mr Glynn put to us, we think about what Mr Hodgman put to us, we consider all the evidence, all the other submissions and having done that, is there any - is there something about this evidence that is a reasonable explanation other than guilt - no - there isn't, then guilt follows. If there is, or if there is some rational possibility you can't exclude - `oh, well that's a reasonable explanation for that evidence -` then you've got to acquit. That is what circumstantial evidence means. It is different from direct evidence where somebody says " I saw the burglar climb in the window" - well, you either believe the witness or you don't. But in a circumstantial evidence case, you've got to be able to say from all the evidence we accept, is there any other rational or reasonable explanation other than guilt because if there is, we can't exclude some rational or reasonable explanation other than guilt, then we must acquit.

So in a circumstantial case the evidence builds up brick by brick - that you accept - I mean, you [may] not accept any of it - different matter - but the evidence that you accept - does it get to the stage where you can say `there is no other reasonable or rational explanation for this evidence other than guilt.' If there is, you've got to say not guilty - you can't exclude it."

78 Subsequently, the learned judge referred to evidence that abalone purchased off the ticket in Tasmania was sent to the Queensland operation as "duck bills" and as "bait *", and that the price per kilogram recorded as having been paid for it was an excessively high price for duck bills and bait but an appropriate one for off the ticket abalone. The learned judge described it as circumstantial evidence and explained that the Crown case was that the jury should infer from it and other evidence that the joint appellants must have known of the code or the system. His Honour reminded the jury of the argument of counsel for the joint appellants that such an inference should not be drawn.

79 At one point in his summary of the Crown evidence, the learned judge referred to evidence of the joint appellants' employees, Gamble, Jones and Williams, that in company documentation, codes for off the ticket abalone were used, such as "* large lobster". His Honour then directed the jury:

"Mind you, that's by no means the end of the story by any means at all, because don't forget, as I said in the beginning, this case is about an agreement, an unlawful meeting of the minds to defraud the Minister or pervert justice or commit that crime, not just in dealing with off the ticket abalone. The question for you is from that circumstantial evidence, or all of that is circumstantial evidence, that, together with the other evidence that you accept, is there any other reasonable explanation possibly - is there any other rational explanation for all that evidence other than there was that agreement and that unlawful meeting of the minds."

80 The first particular of ground 6 complains that the learned judge failed to adequately instruct the jury which of the evidence amounted as a matter of law to direct evidence and which of it amounted to circumstantial evidence. However, it was not supported by counsel for the joint appellants in written or oral submissions. We are not aware of any authority that a trial judge has an obligation to descend to particularity. In our view, the learned judge adequately explained for the jury the difference between direct evidence and circumstantial evidence.

81 As submitted by counsel, the second and third particulars of ground 6 complain of the failure of the learned judge to direct the jury that before the joint appellants could be found guilty of the conspiracy counts, it was necessary that the circumstantial evidence had established beyond reasonable doubt that common codes (eg "* large lobster", "duck bills" and "bait *") were used by the Tasmanian employees and the Queensland employees, including the joint appellants, when documenting the acquisition of off the ticket abalone and its supply by the Hobart operation to the Queensland operation. Counsel submitted that the existence of the codes and the awareness of the joint appellants of their existence, were indispensable intermediate facts that needed to be proved beyond reasonable doubt and the jury should have been instructed accordingly.

82 In Chamberlain v R (No 2) [1984] HCA 7; (1983) 153 CLR 521 at 599 Brennan J said:

"The prosecution case rested on circumstantial evidence. Circumstantial evidence can, and often does, clearly prove the commission of a criminal offence, but two conditions must be met. First, the primary facts from which the inference of guilt is to be drawn must be proved beyond reasonable doubt. No greater cogency can be attributed to an inference based upon particular facts than the cogency that can be attributed to each of those facts. Secondly, the inference of guilt must be the only inference which is reasonably open on all the primary facts which the jury finds. The drawing of the inference is not a matter of evidence: it is solely a function of the jury's critical judgment of men and affairs, their experience and their reason. An inference of guilt can safely be drawn if it is based upon primary facts which are found beyond reasonable doubt and if it is the only inference which is reasonably open upon the whole body of primary facts."

83 Counsel for the joint appellants pointed out that although the learned trial judge told the jury of the second condition, he told them nothing of the first. Although for a time following Chamberlain it was a practice of trial judges to instruct juries in accordance with the first condition, a practice which was enforced by courts of criminal appeal, the requirement to do so was substantially modified by the High Court in the later case of Shepherd v R [1990] HCA 56; (1990) 170 CLR 573, so that Chamberlain is no longer to be regarded as authority for the proposition that a jury may only properly draw an inference of guilt upon individual facts proved beyond reasonable doubt. However, Shepherd reaffirmed the principle that where it is necessary to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt. Dawson J, at 585, commented that to say as much is to do little more than state a truism but it does not mean that each item of evidence taken into account in reaching a conclusion of guilt must, considered separately, be established beyond reasonable doubt. At 579 - 580 his Honour said:

"On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol 9 (Chadbourn rev 1981), par 2497, pp 412 - 414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.

As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately."

84 Concerning whether a special direction should be given to the jury, Dawson J added at 585:

"Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful."

85 The learned trial judge pointed out to the jury that because of the nature of conspiracy cases, there will commonly be no direct evidence that there was an unlawful conscious understanding of a common design between the conspirators and circumstantial evidence will frequently be relied upon by the Crown to prove that. On each of the conspiracy counts in this case, the common design alleged was to defraud the Minister in the first alternative, to obstruct, prevent, pervert, or defeat the due course of justice in the second alternative, and to commit crimes in the third alternative. There was no direct evidence that the joint appellants were parties to such common designs, but there was a substantial body of direct evidence that they instigated, in the case of the appellant Georgiadis, and encouraged and directed, in the case of both of the joint appellants, the acquisition of off the ticket abalone and the concealing of that acquisition. We will refer to some of that direct evidence by way of examples.

86 The witness Gamble, who was employed by the joint appellants to manage the day to day operations of Royale Seafoods in Tasmania, gave evidence of how, in the course of telephone conversations, the appellant Georgiadis initially instructed him to procure off the ticket abalone, which instructions were passed on by Gamble to Williams. Both Gamble and Williams gave evidence of instructions from Georgiadis concerning how much and when off the ticket abalone was to be acquired for the business throughout the duration of the alleged conspiracies. Gamble gave evidence of the appellant Georgiadis approving the purchase of off the ticket abalone from a diver, Kelly, who was prepared to deliver the abalone to Royale's Tasmanian premises, the diver thereby taking upon himself the risk of being charged if the delivery was intercepted by marine police at a time when he did not have possession of a diver's docket for the abalone as required by law. As a consequence, Kelly became the preferred supplier of off the ticket abalone to the business. Williams gave evidence that he had many conversations with Georgiadis in which he expressed his concern about the illicit purchase of off the ticket abalone, but Georgiadis insisted that it take place and explained that he was unable to make a profit on the abalone they had been (legally) purchasing at the price they had been paying.

87 Williams gave evidence of showing to the appellant Theodosis what was referred to as the green book, in which he kept records of the purchase of off the ticket abalone. Gamble gave evidence of regular telephone conversations with Theodosis, in the course of which they referred to off the ticket abalone they were acquiring as the cheap abalone. He also gave evidence of discussions with her about falsely referring to off the ticket abalone in sale sheets and sales books as "lobster *" or "duck bills *". He said that they particularly chose to describe it as lobster because there was no quota for lobster and if people from the Departments of Sea Fisheries or Primary Industry audited the company's records, they would not be able to know that off the ticket abalone was being purchased by Royale.

88 In evidence was a written instruction sent by the appellant Georgiadis on 5 June 1993 to Williams and Gamble to "make sure you get abbs in send out as duck bills". Williams gave evidence that Georgiadis instructed him to write "bait" or "cray bait" or similar on cheque butts in relation to cheques for the purchase of off the ticket abalone. Georgiadis later instructed him to record it as "limpets". Gamble gave evidence that he received instructions from Georgiadis to enter off the ticket abalone on to cheque butts as "bait", "packing material" or "duckbills". Gamble also gave evidence that both of the joint appellants would advise what amount of abalone to be described as "lobster *" was to be sent to Queensland, and that it was only off the ticket abalone that was to be so described.

89 Direct evidence was given by Queensland employees of the knowledge and complicity of the appellant Theodosis in the use of codes. One of those employees, White, gave evidence of recording off the ticket abalone received from the Tasmanian operation as abalone and of Theodosis altering the record to indicate that instead of abalone the product was extra large lobster. Somewhat similar evidence was given by Mr Kalwij, who said he noticed that abalone was arriving from Tasmania in boxes marked as large lobster and when he entered the product in the factory record as abalone, he was instructed by Theodosis to alter the entry to read that it was large live lobster. He also said that she instructed him that the product description in the Queensland factory had to be the same as that on the Tasmanian documents accompanying the product.

90 There was a substantial body of direct evidence and of circumstantial evidence, other than of the use of codes, that the joint appellants were conscious parties to an understanding of a common design that off the ticket abalone would be purchased and that steps would be taken to avoid the relevant authorities ascertaining what was being done. Circumstantial evidence, which may have established that the joint appellants authorised the use of codes to defraud the Minister, was important and damning, but it was not essential that it be accepted as proving that fact before they could be found guilty. The use of codes and the knowledge of the joint appellants of the use of the codes and their complicity in that use, were not facts which constituted indispensable links in a chain of reasoning towards an inference of guilt. Without first making a finding beyond reasonable doubt about the use of codes by the joint appellants, the jury were entitled to find them guilty upon a combination of the evidence of their involvement in that use and other direct and circumstantial evidence of their involvement in the acquisition of off the ticket abalone.

91 For these reasons it is our view that this was not an appropriate case for a circumstantial evidence direction to be given to the jury that included a direction that unless the circumstantial evidence established in the jury's mind satisfaction beyond reasonable doubt of the joint appellants' complicity in the use of codes, they should return verdicts of not guilty. The circumstantial evidence tending to establish the use of codes by the joint appellants were strands in a cable rather than links in a chain. See Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at 579.

"The learned trial judge erred in law in his direction to the jury in relation to each count of conspiracy by failing to direct the jury that in order to convict the appellant(s) each member of the jury would have to be satisfied beyond reasonable doubt that the same persons were parties to the unlawful agreement."

(Ground 5 of the appellant Belbin's notice of appeal but confined to counts 2 and 3 of the indictment).

93 The learned trial judge provided the members of the jury with a comprehensive, and in our view, most helpful and informative, written memorandum which includes detailed directions on what is a conspiracy and the circumstances in which an accused can be convicted on a conspiracy charge. The memorandum was read to the jury. Whilst a summary of the memorandum does not adequately convey its substance or breadth, for present purposes, it is sufficient to say that the gist of the relevant directions is that the crime of conspiracy consists of a common undertaking of a common design by two or more persons to pursue an unlawful course of conduct; that in considering the charge against an accused, the question is whether the jury is satisfied beyond reasonable doubt that the accused is guilty of conspiracy with the other named conspirators, or any of them, as alleged in the charge; and that since it is the unlawful agreement which constitutes the crime, it is necessary, in the case of each accused who is alleged to be a conspirator, to ask two questions: first, was there an agreement of the kind alleged between two or more persons; and second, was the accused a party to that unlawful agreement?

94 Consistent with the learned trial judge's directions, before the members of the jury could convict an accused on a charge, they had to be satisfied of the accused's participation in an unlawful agreement together with one or more of the persons alleged in the charge. The direction left it open to the members of the jury to convict an accused without necessarily being in unanimous agreement about which of the persons alleged in the charge the accused had reached agreement with.

95 In support of the submission that the learned trial judge erred by failing to direct the members of the jury that before they could convict an accused on a conspiracy charge, each juror must be satisfied that the same persons were parties to the agreement reached with that accused, the appellants rely on the decision of the High Court in KBT v R (1997) 191 CLR 417, a case which involves a charge of maintaining an unlawful sexual relationship with a child, contrary to the Criminal Code (Qld), s229B(1). As to that section, Brennan CJ, Toohey, Gaudron and Gummow JJ said, at 442 that it is clear from the terms of the section that the actus reus of the offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions. In consequence, a person cannot be convicted under s229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts.

96 Various approaches have been taken to the determination of what are the matters on which a jury must be in unanimous agreement before convicting an accused of a particular offence. "Certainly, as common sense dictates, the law does not require individual jurors to agree about everything"; R v Leivers and Ballinger [1998] QCA 99; [1999] 1 Qd R 649, Fitzgerald P and Moynihan J at 651. In Giannetto [1997] 1 Cr App R 1, the English Court of Appeal, at 4, said: "The proposition that a jury must all find each essential element in an offence to be proved is not contentious ...". At 8, the Court expressed this requirement in slightly different terms, that is: "... the jury must be agreed upon the basis on which they find a defendant guilty". In Beach (1994) 75 A Crim R 447 at 453, the Victorian Court of Criminal Appeal said that a jury's verdict would not be acceptable if: "... based upon quite disparate findings relating to the very foundations upon which the verdict rests". In R v Leivers and Ballinger (supra) at 662, Fitzgerald P and Moynihan J, after referring to criteria, including the above, which had been adopted by courts when determining the matters upon which a jury must be in unanimous agreement before convicting an accused, said:

"It is important to emphasise that the criteria are not directly concerned with the legal constituent elements of the offence charged but with the actual issues which are prerequisites to a guilty verdict in the particular circumstances of the individual case."

97 Whilst recognising that the circumstances of each case will vary, we note that it has been held to be unnecessary that the jury be in unanimous agreement as to:

* whether an accused is guilty as an abettor or a principal, Giannetto (supra); R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101 and Thatcher v R (1987) 33 CCC (3d) 481;

* whether an accused is guilty as an abettor or as a participant in an unlawful common purpose, R v Leivers and Ballinger (supra);

* the route of the reasoning process by which a verdict is reached on a charge of manslaughter, Cramp [1999] NSWCCA 324; (1998) 110 A Crim R 198 and R v Dally [2000] NSW CCA 162 and on a charge of trafficking, R v Clarke and Johnstone [1986] VicRp 64; [1986] VR 643; and

* the precise means by which death was caused on a charge of murder, R v Ryder [1995] 2 NZLR 271.

98 In KBT v R (supra) the High Court identified the matters upon which the jury had to be in unanimous agreement before convicting an accused by focusing on the actus reus of the offence. The actus reus of a conspiracy is the agreement to execute the illegal conduct; R v Kamara [1974] AC 105 at 119. Although a conspiracy is complete as a crime when an agreement is reached, it continues in existence so long as there are two or more parties intending to carry out its design; Woss v Jackson (1985) 11 FCR 243, Toohey J at 250. What is important is the agreement. In R v Griffiths [1966] 1 QB 589, the Court of Criminal Appeal constituted by Paull, Phillimore and Fenton Atkinson JJ said, at 597:

"... in law all must join in the one agreement, each with the others, in order to constitute one conspiracy. They may join in at various times, each attaching himself to that agreement; any one of them may not know all the other parties but only that there are other parties; any one of them may not know the full extent of the scheme to which he attaches himself. But what each must know is that there is coming into existence, or is in existence, a scheme which goes beyond the illegal act or acts which he agrees to do."

99 It follows that the members of the jury must be unanimous in concluding that there was one agreement which constituted the conspiracy and that the accused attached himself or herself to that agreement, that is, the accused agreed with one or more of the participants to become a participator. It is not, however, necessary that the members of the jury be in unanimous agreement about which of the participants the accused reached agreement with. This view accords with the decision in Phillips (1988) 86 Cr App R 18, where the members of the court constituted by Woolf LJ, Webster and Tucker JJ, rejected a submission that the judge on the appellant's trial on a charge of conspiracy should have directed the jury that each member of the jury had to be satisfied that the appellant has conspired with the same person. Woolf LJ, who read the decision of the court said, at 25:

"... the jury in this case could be satisfied that there was a conspiracy even though they had not decided anything more than that the defendant had conspired with at least one other person, whatever his identity."

101 None of the grounds relied upon by the appellants has been made out and the appeal by each against conviction is accordingly dismissed.

102 The joint appellants have each appealed against the sentences imposed upon them. The appellant Georgiadis was sentenced to imprisonment for four years on his conviction of the four counts of conspiracy with which he was charged. The appellant Theodosis, who was convicted of the same counts of conspiracy and in addition of one count of perverting justice, was sentenced to imprisonment for four years three months, but the execution of the last fifteen months of that sentence was suspended on condition that she be of good behaviour for a period of two years following her release from prison. The appellant Belbin also appealed against his sentence of two years' imprisonment, but abandoned the appeal. Ground 1 complains that the sentence is manifestly excessive. As reliance was placed on other grounds of appeal to establish this ground, it is convenient to deal with them first.

"THAT the sentence lacks parity with the sentence imposed on a co-offender, George Gamble."

(i) he gave no weight to the delay between the cessation of the offending behaviour and the date of sentence.

(ii) he stated that there was no evidence of rehabilitation, disregarding the fact that the offending behaviour had not been repeated in the six year interval between the cessation of the offending behaviour to the date of sentence."

104 The conspiracies came to an end after a police raid on the Hobart factory in October 1995. The conspirators, including the joint appellants, were not charged until September 1998. There was a committal hearing in May 1999 and the trial commenced in April 2001, concluding with verdicts on 27 July 2001 and with the imposition of sentence on 6 August 2001. The delay prior to the laying of charges was in part occasioned by the need to examine large numbers of seized documents, the true meaning of many of which had been deliberately concealed by the use of codes and some of which had been altered after the first raid in October 1995 by Gamble at the instigation of the appellant Theodosis, this being the subject matter of the charge of perverting justice of which she was convicted. The Crown case relied heavily upon the evidence of Gamble and Jones, who were accomplices. Neither of them confessed their parts in the conspiracies until September and October 1997 respectively and they were not dealt with by the court on their pleas of guilty until February 1999. Clearly the Crown could not have proceeded to trial before their cases had been dealt with. The committal order was made on 20 May 1999 and in the year 2000, pretrial conferences were held on four separate occasions in the months of March, July, September and October. A further pretrial conference was held on 7 March 2001. There were some 30 volumes of Crown papers.

105 In R v Todd (1982) 2 NSWLR 517 in which the sentencing of the appellant was substantially delayed while he served a sentence interstate, Street CJ, with whom Moffitt P and Nagle CJ at CL agreed, said at 519 - 520:

" ... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

This passage was cited by the High Court in Mill v R (1988) 166 CLR 59 at 64, and at 65 - 66 the Court said:

"In our opinion, the reasoning expounded in Todd is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time."

Mill was another case of delay due to incarceration in another State, but the dictum of Street CJ in Todd is not confined to delay caused by an interstate sentence. The principle has been acknowledged in Duncan v R (1983) 47 ALR 746, R v Miceli [1997] VR 588, R v Schwabegger [1998] 4 VR 636, Taafe v R [1998] VSCA 4; (1998) 102 A Crim R 472, Blanco v R [1999] NSWCCA 121; (1999) 106 A Crim R 303, R v Cockerell [2001] VSCA 239, R v Gay [2002] NSW CCA 6 and R v Turner & Ors unreported, Blow J, 3 May 2002. In some of these cases, the delay was due to fault on the part of the prosecutor (eg, in Schwabegger (supra) at 659, Vincent AJA was critical of the "leisurely progression of the criminal justice proceedings" which followed the commission of the crime; in Turner (supra), Blow J described the delays as "the result of a serious bureaucratic bungle ... and neglect ... to allocate appropriate resources to an important investigation and prosecution"). In none of these cases was fault for the delay attributed to the offender. On the other hand, in R v Law, ex parte Attorney-General [1995] QCA 444; [1996] 2 Qd R 63, the complainant delayed 15 years before complaining in 1983 of sexual abuse, the delay being explained by the offender's threats to shoot him should he complain. The Court of Appeal consisting of Pincus JA, Davies JA and Demack J said, at 66:

"It is difficult to see why lapse of time between commission of an offence and sentence should be a mitigating factor in sentence unless that delay has resulted in some unfairness to the offender. There are two obvious cases in which that will be so and in which, consequently, it has been said that that unfairness should mitigate the sentence which should otherwise be imposed.

The first is where there is delay between the date of apprehension of the offender, or first indication to him by some person in authority that he is likely to be prosecuted, and the date of sentence, in consequence of which the offender may have had his liberty curtailed or his reputation called in question or, at least, left in a state of uncertainty caused by a failure to prosecute his case more quickly. ...

The second is where the time between commission of the offence and sentence is sufficient to enable the court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress."

106 In another case of the sexual abuse of a young person who did not complain for eight years after the last offence committed on her when she was aged 13 years, although there was no suggestion that her silence was induced by threats of any kind, Callaway JA said:

"The mere effluxion of time does not wring the heartstrings in the case of sexual offences against small children, but the applicant is entitled to have taken into account that he has no previous convictions and that there are no allegations of subsequent misconduct. Those facts bear upon his prospects of rehabilitation and the weight to be given to specific deterrence." (R v Arundell [1998] VSCA 102; [1999] 2 VR 228 at 256.)

107 While acknowledging therefore that delay can, in some circumstances, mitigate penalty, we do not think that in the circumstances of this case, where a complex scheme to defraud the Minister was carried out over several years, employing means designed to frustrate the efforts of any investigator, and where no unfairness can be said to have been suffered by the offender as the result of the delay, the learned sentencing judge was under any obligation to mitigate sentence by reason of any claimed delay between the commission of the crimes and the imposition of sentence, unless evidence of previous good conduct and subsequent rehabilitation was ignored. That is the complaint, in part, secondly particularised under this ground.

108 In some cases there is ample evidence of rehabilitation occurring during a substantial delay between the commission of a crime or series of crimes and sentencing. Thus in Bell v R (1981) 5 A Crim R 347, a solicitor who pleaded guilty to four counts of fraudulent disposal of trust funds used by him to prevent the collapse of certain investment arrangements, but subsequently replaced by him without loss to anyone and who, in the lengthy delay before detection and prosecution, had started a new life in another State as a public servant in a position of trust and responsibility taking an active part in community affairs, was made the subject of a non-custodial sentence in lieu of the sentence of imprisonment imposed by the judge hearing his plea. In Smith v R (1982) 7 A Crim R 437 where the delay was five years and the crimes obtaining a financial advantage by deception, Starke J said at 442:

"Two matters which the learned judge referred to and which, in my judgment, are of essential importance are, firstly, the good character of the applicant. He had reached mature years and indeed middle age without ever falling foul of the law. He had, the evidence reveals, lived an industrious life and in recent years branched out on his own. He had raised a family. In my opinion, in circumstances of this nature, a convicted person is entitled to call in aid his good character and is entitled to have the court give it the greatest weight. What weight it will have depends, of course, on the character of the offence committed. In some cases, like armed robberies and so on, the fact of good character would have very little weight at all. In other cases, such as this, where a man has lived an honest life and has found himself in circumstances perhaps through no fault of his own and fell to temptation, the situation is quite different." See also Duncan (supra).

In each of the above cases the prisoner had pleaded guilty.

109 In the present case, however, the joint appellants presented no evidence of rehabilitation. They maintained their pleas of not guilty, no references were adduced relevant to good character or to contributions to community affairs, and the only material upon which reliance was placed by them in respect of rehabilitation was the fact that they had continued to conduct their business without having committed any further offences. The learned sentencing judge's statement that there was no evidence of rehabilitation was said in the context of his determination that there was no reason to mitigate sentence because of the delay. It was in substance a correct statement.

(iii) he gave no or insufficient weight to the financial loss suffered by the Appellants and the financial burden likely to be caused by the impending Proceeds of Crime application."

110 In his comments on passing sentence, the learned sentencing judge said of the joint appellants, "Both will suffer enormous financial loss as a result of the commission of these crimes". It was conceded by the Crown prosecutor that upon conviction, the Minister was likely to review and to revoke the processor's licence granted to the appellants' company. Application was also made to the learned sentencing judge prior to sentencing for a pecuniary penalty order under the Crime (Confiscation of Profits) Act 1993, s11(1)(b), against all those on the indictment save Lamont, who was a worker at the Hobart factory and gained no financial benefit from his wrongdoing, save the retention of his job. It does not appear that the amount of any benefit received by either of the joint appellants was ever assessed. Certainly no such amount was assessed prior to the date on which sentence was passed. Nevertheless, the learned sentencing judge must have been conscious of the potential for such an order being made and there is no reason to suppose that he did not include the liability consequent upon such an order should it be made, together with the loss of revenue consequent upon revocation of the processor's licence in his reference to the "enormous financial loss as a result of the commission of these crimes". Whether he gave this factor sufficient weight cannot be considered separately but will be taken into account when we deal with the issue of whether or not the sentence was manifestly excessive.

(iv) he rejected the need for parity between co-offenders."

(v) in that he gave insufficient weight to the Appellants' co-operation in the trial process which was significantly greater than that of the co-accused Bostock, Belbin and Kelly."

111 His Honour stated that he did take into account by way of mitigation the fact that all prisoners assisted in the prosecution of the trial by making a number of admissions of fact concerning the identity of handwriting on documents and ownership of bank accounts and the like and that this undoubtedly had effected a saving of considerable trial time and cost. He did not, however, distinguish between the co-operation provided by the appellants in this regard by way of comparison with the co-accused Bostock, Belbin and Kelly. Mr Grace contends that the co-operation of the appellants was considerably greater. That may well be the case, as the largest part of the documentary material relied upon by the Crown consisted of records of their company. Nevertheless, it was not incumbent on his Honour to specifically differentiate between the level of co-operation given by each offender, nor to spell out the discounts applied to the sentence of each in this respect. He did pass separate sentences and as there is now no reliance on the general issue of disparity as between co-offenders, whether he gave the joint appellants' co-operation sufficient weight can only be determined on a consideration of their individual sentences taken as a whole.

112 These particulars relate only to the appellant Theodosis.

(vi) he found that the appellant had been involved in the conspiracy for at least four years disregarding the evidence of the witness Williams that the appellant played no part in the business until April or May 1993.

(vii) he found the appellant was an instigator of the offence when there was no evidence to that effect and in fact the evidence was to the contrary."

113 These particulars can be considered together. In his comments on passing sentence, the learned sentencing judge said, "The prisoners Georgiadis and Theodosis persisted in their unlawful conduct for a period of at least four years". Later, rejecting a submission that there was parity for the purpose of sentencing between them and their accomplice and principal accuser Gamble, his Honour said:

"The former [that is, the appellants] instigated the schemes. The former orchestrated and directed the unlawful agreements using Gamble as their tool to do so, and the former profited from the commission of the crimes."

Counsel for the respondent concedes that his Honour was in error in asserting that Theodosis was involved in the conspiracies for at least four years. In fact, as noted in par14 above, Gamble had no conversation with Theodosis about off-quota abalone before Williams left at the end of June 1993, Williams gave no evidence that he had any such conversations with her and her first involvement in the business occurred in about April or May 1993. Although there was ample evidence that once she did get involved in the business she exercised a high measure of control over it, together with Georgiadis, and actively participated in the conspiracy to disguise the transactions in off-quota abalone, there was no evidence that she and Georgiadis had jointly instigated the fraud. On the evidence, the instigator was Georgiadis, who had instructed Gamble to procure off-quota abalone, and considerable product was obtained and the system for disguising it implemented prior to Theodosis' involvement. His Honour specifically stated "no distinction can be drawn between the culpability of the prisoners Georgiadis and Theodosis" and it would seem from the sentences of four years' imprisonment on Georgiadis and of four years three months' imprisonment imposed on Theodosis, who was convicted of the additional crime of perverting justice, that he imposed a sentence of equal severity on each of the joint appellants in respect of the four conspiracies of which they were jointly convicted. Certainly the additional period of three months' imprisonment in the case of Theodosis is the kind of penalty typical for the offence of perverting justice. The factual error of treating Theodosis as an instigator and participant for the same length of time as Georgiadis when he was engaged in the conspiracy for up to a year prior to her is one which materially affected the proper exercise of the sentencing discretion in respect of the appellant Theodosis and requires the intervention of this Court.

114 In argument it was submitted that the learned trial judge erred in fact in asserting that the joint appellants had made a profit in excess of $250,000 as the result of the implementation of the unlawful conspiracies. The evidence demonstrated that over 30 tonnes of off-quota abalone had been purchased by the company and that the suppliers had been paid at the rate of $6 per kilogram less than the price of quota abalone. At a minimum, the joint appellants, through their company, effected a saving of $180,000 approximately in the cost of this product. It was purchased from Royale Seafood Supplies Tasmania by the parent company in Queensland at a price marked up by a further $6. In other words, although the price fluctuated upwards, off-quota abalone was typically purchased in Tasmania for $18 per kilogram, but sold to the Queensland company at $30 per kilogram before being sold by the latter company. It was submitted for the appellants that his Honour had failed to take into account the cost of transport of the product to Queensland and various other administrative costs and that the profit was nearer to $100,000. Furthermore, reliance was placed on a letter in evidence dated February 1997 where the appellant Georgiadis had written to Gamble complaining at his lack of performance and claiming that although the Company had "grown over the last few years yet no profits have been realised".

115 The learned sentencing judge did not purport to make precise calculations. He acknowledged in his comments on passing sentence that it was impossible to calculate the profit to the proprietors of the business, but said that it must have exceeded $250,000. He noted that the company had paid to the co-conspirators Bostock and Belbin over $150,000 and to Kelly almost $200,000 for off-quota abalone. The Crown prosecutor, in his presentencing submissions, asserted without challenge that the company had paid out approximately $630,000 for illicit product throughout the whole period. On any view of the evidence, the conspiracies involved illegal dealings with undeclared abalone of very considerable value and yielded high returns to those engaged in them. We see no reason for supposing that the sentencing discretion miscarried by reason of any miscalculation of the profit received by the joint appellants.

116 It was further submitted in respect of this ground that insufficient weight was given to the ages, absence of prior convictions and previous good character of the joint appellants. The appellant Georgiadis was nearly 38 years of age at the time of sentencing and Theodosis 41. Neither had any previous convictions and, as has already been pointed out, there was no suggestion of further wrongdoing by either of them since the police raid in October 1995. Georgiadis had been engaged in the fishing industry all his adult life and after the raid the appellants had continued with their business. They married and a daughter was born to them in March 1998. Both have elderly parents and real fears were held that if both were sentenced to a custodial term, the child would have to be placed in care outside the immediate family.

117 Mr Grace QC relied on a Court of Criminal Appeal decision of the Supreme Court of Victoria, Okutgen v R (1982) 8 A Crim R 262, where Starke J said in a judgment with which Crockett and O'Bryan JJ agreed:

"A man of this age [40 years], when first convicted, can I think call in aid his character and is entitled to ask the court to rely very strongly indeed on the fact that he is of exemplary character and has been at all times up till the moment of conviction." (at 266)

Immediately prior to saying this, Starke J had, however, recorded that the applicant had lived a decent, honourable life, had raised a family, had been in constant work and had engaged in community activities, particularly in respect of the migrant community. While the joint appellants had reached a similar age at the time of sentencing and had lived industrious lives without offending, the Court was given no information of activities conducted by them which could be said to stamp them as being of exemplary character. Furthermore, Okutgen was a case of aberrant behaviour involving a single act of wounding after a sudden confrontation in which he had been assaulted.

118 Ryan v R [2001] HCA 21; [2001] 75 ALJR 815 confirms the principle that an offender, even one who secretly offends for many years before detection, is entitled to have account taken in the sentencing process of evidence of good character outside his offending conduct. There the learned sentencing judge was held to be in error for denying a priest who had pleaded guilty to an extended course of sexual abuse of young males "any leniency whatsoever" by virtue of the numerous aspects of his conduct outside of his offending that suggested that he was of otherwise good character. Obviously the extent of the leniency can vary according to the circumstances, as Kirby J acknowledged at par112 where he said:

"A sentencing judge might conclude that the objective criminality of the offences, and the imperative need to give priority to general and specific deterrence in a case such as the present, meant that less weight could be given to such evidence in the appellant's case than in different circumstances, with different offences involving different victims over a different period of time. In a particular case, a sentencing judge might even come to a conclusion that no 'significant leniency' could be given to such evidence when all considerations relevant to sentencing were assessed."

119 In the present case, the learned sentencing judge did advert to the absence of prior convictions and said nothing which suggested that this fact was not taken into account in the appellants' favour. No specific error has been demonstrated.

120 It was also submitted that inadequate account had been taken in respect of both appeals of the effect of their incarceration on their child. So far as Theodosis is concerned, this was a factor which the learned sentencing judge demonstrably took into account by suspending the execution of the last 15 months of her sentence. As her appeal is to be allowed pursuant to ground 3(vi) and (vii), it must again be taken into account when the discretion is exercised afresh in re-sentencing her. So far as the appellant Georgiadis is concerned, we note that senior counsel representing him at the time of sentencing did not urge his Honour that this was a consideration relevant to his case. The emphasis was on the effect of the relationship between mother and child and counsel acknowledged that his Honour "might well take different approaches to each of [the joint appellants] particularly because of the relationship involving a child". We see no reason why Georgiadis' sentence should be ameliorated by reason of this consideration if it is properly addressed in respect of the child's mother.

121 In addition to the above matters, the appellants rely upon those raised by grounds 3(i), (ii), (iii) and (v) in their contention that the sentence in respect of the four conspiracies was manifestly excessive.

122 The case presented at trial resulting in their convictions was properly described by the learned sentencing judge as a sordid tale of greed by all those involved in the conspiracies, except for the employees of the appellants, namely Williams, Gamble, Jones and Lamont, who received no financial gain from the commission of the crimes other than the preservation of their employment. Each found guilty, other than Lamont, had acted in total disregard of anything other than making an unlawful profit at the expense of the general public, whose interest it was that the quotas established to ensure the proper conservation and management of the abalone fishery in the coastal waters of Tasmania should not be exceeded. As we have noted, over 30 tonnes of off-quota abalone was unlawfully processed by the appellants through their company and its servants. This was achieved through a lengthy and elaborate deception of the authority charged with protecting this fragile resource. The joint appellants exercised a high degree of control over its execution. There was no evidence of remorse. It was a case clearly calling for a substantial deterrent sentence both general and individual. We are not persuaded that a sentence of four years' imprisonment was manifestly excessive so far as the appellant Georgiadis was concerned.

"By virtue of the severity of the sentence the appellant(s) has (have) a justifiable sense of grievance arising from a disparity with sentences passed on other persons convicted of similar or identical offences."

123 Counsel for the joint appellants sought to persuade us that they have been left with a justifiable sense of grievance because on 3 May 2002 Blow J imposed more lenient sentences on five offenders convicted of one count of conspiring to defraud the Australian Fisheries Management Authority contrary to the Crimes Act 1914 (Cth), s86A, by dishonestly agreeing to cause and permit returns to be submitted to that Authority which falsely recorded catches of orange roughy (R v Turner & Ors (supra)). The duration of the conspiracy was one year and the quantity of fish which was subject to a quota and which was not declared was nearly 91 tonnes. Its value was about $M2.36. None of the accused was the originator or designer of the conspiracy, but the one adjudged deserving of the most severe punishment was the only one essential to the implementation of the conspiracy, his company processing the undeclared fish for the benefit of its shareholders, namely himself and his wife, and benefiting to the tune of hundreds of thousands of dollars. He was sentenced to four years' imprisonment, but ordered to be released after serving seven months thereof upon giving a recognizance in the sum of $5,000 to be of good behaviour for two years and upon payment of a pecuniary penalty of $2,000. The other offenders received shorter terms of imprisonment, the execution of which was suspended on a similar condition of good behaviour and payment of varying pecuniary penalties.

124 The ground of appeal is misconceived and the invitation to make a comparison between the sentences imposed on the joint appellants in their circumstances with those imposed on those convicted of another conspiracy bearing even marked similarities to those the subject of this appeal in their circumstances, with a view to demonstrating marked disparity in treatment, should be firmly rejected.

125 Disparity in the sentencing of co-offenders resulting in a manifestly excessive difference between their sentences is a ground for the intervention of an appellate court because that kind of disparity engenders a justifiable sense of grievance on the part of the accused on whom the heavier sentence is imposed or because the disparity gives the appearance that justice has not been done (Lowe v R [1984] HCA 46; (1984) 154 CLR 606). The principle has application where the sentence in fact imposed is not in itself manifestly excessive or otherwise erroneous. In Johnson v R [1983] Tas R 50 at 51, Nettlefold J said:

"The principle is a relatively new feature in the practice of the courts (see Reg v Stroud (1977) 65 Cr App R 151 at p153).

The principle has, at the basis of it, a real difficulty in that it contemplates that the decision under attack was, considered solely as between the appellant and the Crown, a just decision but, nevertheless, it may be set aside because of what occurred in a related case against a third party which may have been heard at some other time. Hence, when the principle applies, the position may be that a decision, which could not be regarded as erroneous when given, is treated as if it were erroneous.

That situation has led to the courts making it plain that they will apply the principle only in clear cases." (See also Cowen v R [1983] Tas R 94 at 98.)

126 Counsel for the joint appellants also relied on Postiglione v R (1996 - [1997] HCA 26; 1997) 189 CLR 295 for the proposition that in assessing a sentence for the purposes of applying the disparity principle, all components of the sentence must be taken into account, not only the head sentence, a proposition which we, of course, accept. All the cases to which we have referred, however, involved a consideration of disparity as between co-offenders in the same criminal transaction. There is no basis upon which the principle can be properly extended so as to permit detailed comparison of a sentence not in itself shown to be erroneous with other individual cases where an offender may have been more leniently treated.

127 Mr Grace QC sought to rely on certain observations of Gaudron J in Siganto v R [1998] HCA 74; (1998) 194 CLR 656. In that case, ground 2 of the appellant's notice of appeal contended that the Court of Criminal Appeal of the Supreme Court of the Northern Territory had erred in determining that the sentence in question was within range by reference to sentences imposed in recent years rather than by reference to a new statutory regime. Under that regime, the appellant, who had been convicted of rape and sentenced to nine years' imprisonment, was required to serve a non-parole period of six years four months, whereas prior thereto a person receiving such a sentence for the same crime might, with remissions, be expected to serve a maximum period of six years with a non-parole period of approximately four years. The majority consisting of Gleeson CJ, Gummow, Hayne and Callinan JJ, rejecting this ground, held that giving effect to the intention of the Act in question:

" ... produces the result that people who had previously offended but had not yet been sentenced would be treated differently from people who had previously offended and had been sentenced. This is not relevantly inequality before the law. It is a consequence of a change in the law" (at 662).

" ... the sentencing judge should have crafted the appellant's sentence to take account of the longer maximum and minimum periods of incarceration resulting from the abolition of remissions and the altered regime for the setting of non-parole periods" (at 670 - 671).

In reaching this conclusion, Gaudron J said, at 670:

"The principle invoked by the appellant in ground 1(c) of his amended grounds of appeal to the Court of Criminal Appeal and in ground 2 of his Notice of Appeal to this Court is the principle of parity or consistency in sentencing. That principle most commonly falls for consideration in the case of co-offenders. However, it is not restricted to cases of that kind. A contention that a sentence is manifestly excessive or manifestly inadequate is a contention of disparity or inconsistency measured over the range of sentences imposed on those convicted of a particular offence. And to say that a particular sentence is 'within range' is simply to say that there is no disparity or inconsistency of that kind."

With respect, we agree, and have taken note of the case of Turner & Ors (supra) in our consideration of whether or not the sentence was outside the range of an appropriate penalty or "manifestly excessive" as claimed in ground 1. However, her Honour's observation does not support Mr Grace's submission.

128 None of the grounds put forward by the appellant Georgiadis has been made out and his appeal against sentence is accordingly dismissed. For the reasons given in respect of ground 3(vi) and (vii), the appeal of Theodosis is allowed and, as requested at the hearing of the appeal should that be the Court's decision, she will be given the opportunity of making further submissions as to what should be an appropriate sentence in her case.