Gerakiteys v The Queen

The first of the two counts in the indictment was that the applicant between 1 April 1975 and 3 May 1978 at Sydney conspired with a Mr. Haralabopoulos (also known as and hereinafter called "Harrison") and "divers other persons to cheat and defraud divers insurance companies". The second count was that the applicant between 1 March 1977 and 9 May 1978 at Sydney conspired with the said Harrison "and divers other persons to defraud the Commonwealth". Those counts are, in their terms, vague and uninformative. It is convenient to turn immediately to the consideration of the prosecution case in relation to the first of them.

The facts alleged by the Crown at the trial to sustain the first count can be shortly summarized. The applicant carried on practice as a medical practitioner. Harrison was an insurance agent. The "divers other persons" were nine individuals ("the nine insured" or "the insured") who, at Harrison's instigation, had taken out sickness and accident insurance with one of a number of insurance companies. By arrangement between Harrison and the applicant, each of the nine insured obtained from the applicant at least one medical certificate which falsely stated that he or she was ill or disabled and which he or she forwarded, together with a claim for payment of benefits, to the relevant insurance company. As a result of such claims, the insurance companies paid moneys, by way of cheque, to the insured who, in turn, paid part of the proceeds of the fraud to Harrison. For his part, the applicant received, from the insured, a payment of money and a signed Medibank assignment form at the time he provided a false medical certificate. The Crown alleged that the applicant issued the medical certificates without any physical examination of the insured and that, as the applicant and Harrison were at all times aware, none of the insured suffered from the illnesses or injuries stated in the relevant medical certificates.

The involvement of the nine insured with the applicant and Harrison was summarized by Street C.J. in the Court of Criminal Appeal as follows:

In respect of the eleven persons named as conspirators in the particulars of the first count, two were the appellant and Harrison, and the remaining nine participated, one as a solo claimant, two together, another two together and the remaining four together. There were accordingly altogether some four separate ventures undertaken by claims on insurance companies, originating from the central, fraudulent arrangement proved to have been made between the appellant and Harrison.

The difficulty thrown up by the way in which the evidence came out was that there was no evidence sufficient to indicate that all of the other nine persons, apart from the appellant and Harrison, named as the participants in the conspiracy on the first count, had been jointly involved with each other, as well as with the appellant and Harrison in the conspiracy which was charged.

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" (i.e., 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.

In these circumstances, it becomes critical to determine precisely what conspiracy it was which the Crown alleged against the applicant in the first count of the indictment. Notwithstanding that the applicant has already been tried once on that count, the answer to that question remains obscure if one pays regard only to the wording of the count and the facts alleged by the Crown at the trial. Theoretically, if the words "divers other persons" are read as including the singular, the first count is capable of embracing any one of the five conspiracies (i.e., an overall conspiracy between the applicant and Harrison alone and the four consequential conspiracies between the applicant, Harrison and the member or members of one or other of the four groups of insured) which the facts alleged by the Crown arguably involved. The words of the first count are also appropriate to refer to an overall conspiracy between the applicant, Harrison and all nine insured which the facts alleged against the applicant at the trial were incapable of sustaining.

As Street C.J. pointed out in the course of his judgment in the Court of Criminal Appeal, it is, where the use of a conspiracy count is availed of by the Crown, "essential - indeed fundamental - that the precise nature of the conspiracy be carefully analyzed prior to the commencement of the proceedings". It is plain enough that there was a failure in the present case to attempt any such precise analysis. It would seem, from the conduct of the trial, that that failure was the result of an approach that it sufficed to allege one overall conspiracy between all possible conspirators involving the making of all of the relevant claims on the basis that, if that overall conspiracy or any one of a variety of consequential conspiracies which might be subsumed within it could be proved, the Crown would be entitled to a verdict that the applicant was guilty of the conspiracy charged. If that were, in truth, the approach adopted by those advising the Crown, it was mistaken. "A count in conspiracy must comply with the general rule of charging one offence only . 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" (per Jordan C.J.,R. v. Ongley [24] ). Where the single conspiracy charged is to effect more than one unlawful purpose, the jury may find a single conspiracy to effect some only of those purposes (see O'Connell v. The Queen [25] ). The jury cannot, however, find two conspiracies under a count which charges one only nor find an accused guilty of a conspiracy which is a distinct and different conspiracy to that which the count alleges (R. v. Ongley [26] ). In particular, where a single conspiracy has been charged, it is not open to the jury to find the accused guilty of a consequential but different conspiracy which flowed from that which is the subject of the actual charge.

1. (1940) 57 W.N. (N.S.W.) 116, at p. 117. 2. (1844) 11 Cl. & F. 155 [8 E.R. 1061]. 3. (1940) 57 W.N. (N.S.W.), at p. 117.

The gist of the crime of conspiracy lies in the making of the relevant agreement. It is the subject-matter and purpose of the agreement which determines whether it is criminally unlawful. There must be at least two parties to a conspiracy. That apart however, the number and identity of the co-conspirators may be inessential to the identification or proof of the particular conspiracy with which an accused is charged. Indeed, as a matter of common law principle, an accused may be convicted of conspiring "with a person or persons unknown" to commit an unlawful act (see Archbold's Pleading, Evidence and Practice in Criminal Cases, 41st ed. (1982), p. 2057; Reg. v. Howes [27] ; Reg. v. Anthony [28] ). More in point to the present case, s. 393 of the Crimes Act 1900 N.S.W expressly provides that an accused "may be charged separately, in any count, as having conspired with divers persons, of whom it shall be sufficient to name one only and may be convicted on such count upon proof of his having unlawfully conspired for the purpose therein alleged with any one such person". On the other hand, the number and the identity of the co-conspirators may be relevant and, conceivably, even essential to both the identification of the subject-matter of the conspiracy which is alleged against an accused and to the actual proof of guilt of that conspiracy. For example, the question whether the intended perpetrator of an unlawful act is actually a party to a conspiracy is likely to be of critical importance on the question whether the conspiracy is a conspiracy to commit the act as distinct from a conspiracy to procure its commission by another. In such a case, s. 393 of the Crimes Act 1900 N.S.W. in no way alters the established common law position that a person cannot be found guilty of a distinct and different conspiracy to that which the count in the indictment alleges. Indeed, as I followed the argument, no submission to the contrary was advanced on behalf of the Crown.

1. (1971) 2 S.A.S.R. 293. 2. [1965] 2 Q.B. 189, at pp. 192-193.

As has been seen, 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. All of those conspiracies had a direct or indirect purpose of cheating and defrauding an insurance company or insurance companies. That being so, the reference to purpose in the count offers little assistance in identifying the single conspiracy to which the count relates. In that context and in circumstances where the identity of the alleged co-conspirators is of importance in determining whether the conspiracy charged is a conspiracy to make the fraudulent claims or a conspiracy to procure or enable the making of those claims by persons who were not conspirators, the statement in the charge that the applicant conspired with Harrison "and divers other persons" assumes particular significance on the question of the subject matter of the alleged conspiracy. Once those "divers other persons" are identified as all nine insured, there is something to be said for the view that, as a mere matter of construction, the count should be confined to alleging a single all-embracing conspiracy to which the applicant, Harrison and all nine insured were parties as distinct from a conspiracy to which the applicant and Harrison alone were parties or a consequential conspiracy between the applicant, Harrison and the member or members of but one group of insured. It is, however, unnecessary to pursue that question since that reading of the count is unambiguously confirmed by reference to the particulars supplied by the Crown before the trial commenced.

The particulars of the charge are contained in answers given by the Crown to specific questions which had been asked in a letter from the solicitor for the applicant. The questions and answers must be read together. So read, the particulars identified each of the applicant, Harrison and the nine insured as "a party to the conspiracy" and stated that all of the eleven alleged conspirators were parties "in each and every instance" to any alleged agreement or agreements from which the conspiracy was alleged to have arisen. Such "agreement or agreements" were stated, in the particulars, to have been entered into in or about April 1975 and subsequently in various conversations at the offices of Harrison "and in the homes of the various conspirators" and in various other conversations. The Crown declined to provide particulars of the words used in the various conversations on the ground that that was a matter of evidence but made clear, in the particulars, that the conspiracy alleged in the first count was a single conspiracy to which all eleven named conspirators were parties and which involved the making of claims by all of the nine insured and the receipt of money from the insurance companies by all of the nine insured. Such a general conspiracy between the applicant, Harrison and all nine insured, involving the making of all insurance claims by the nine insured as conspirators, is distinct and different from either a more limited general conspiracy between the applicant and Harrison to involve others in the making of fraudulent claims or particular consequential conspiracies between the applicant, Harrison and the member or members of a particular group of insured involving only the making of claims "by the member or members of that group". The difference between such a general conspiracy and the conspiracies which the facts alleged at the trial were capable of sustaining is not merely a difference in parties. It is a difference in nature and subject-matter.

It has not been suggested, on behalf of the Crown, that the particulars of the first count were either abandoned or effectively varied in the course of the trial or that the Crown case at the trial should be seen otherwise than in the context of the particulars which it had supplied. That being so, the particulars effectively resolve the difficulty in identifying which of the conceivable conspiracies the first count of the indictment charged against the applicant. The conspiracy charged and the conspiracy for which the applicant has stood trial was a general conspiracy between all eleven alleged conspirators which embraced the actual making of all the claims by the nine insured in their capacity as conspirators. Since, as has been seen, the facts alleged by the Crown were not capable of sustaining such a general conspiracy, the applicant was entitled, on the trial, to be acquitted of the charge in the first count of the indictment. That being so he should not have been ordered to be retried on that particular count.

The second count in the indictment referred to allegedly fraudulent claims made by a number of persons ("the claimants") for social security payments. The members of the Court of Criminal Appeal found it unnecessary to summarize the evidence on the second count and the material before this Court in relation to it is incomplete and unsatisfactory: in particular, the summing up of the learned trial judge indicates that there was discrepancy between the particulars provided before the trial and the facts alleged on the trial as to the identity of the alleged conspirators and claimants. It was, however, common ground on the hearing of the application for special leave that, for present purposes, the considerations in relation to the second count corresponded to those applicable in relation to the first count and that the question whether a new trial should have been ordered on the second count should be answered conformably with the answer to the question whether a new trial should have been ordered on the first count. This approach would appear to be consistent with that adopted in the Court of Appeal and I propose to follow it. It follows that the applicant should not be retried on the second count and that the order of the Court of Criminal Appeal for a retrial of the applicant on the present indictment should be quashed.

The making of an order quashing the order of the Court of Criminal Appeal that the applicant be retried will not, in the particular circumstances of the present application, preclude a new indictment or new indictments being presented charging the applicant with a more limited general conspiracy between the applicant and Harrison alone in relation to either the insurance or the social services claims and/or one or more of the consequential conspiracies between the applicant, Harrison and the member or members of a particular group of insured or social security claimants. The reason for that is that such an order is based upon acceptance of the applicant's argument that each of the two counts in the indictment was and is to be read as referring only to an overall conspiracy between the applicant, Harrison and all the identified insured or claimants and as not referring to a more limited conspiracy between the applicant and Harrison alone or a consequential conspiracy between the applicant, Harrison and particular insured or claimants.

I would grant special leave to appeal and quash the order of the Court of Criminal Appeal for a new trial on the present indictment.