R v Caldwell [2009] VSCA 41

2 The trial proceeded for 26 days until 8 March 2007 when a jury returned a verdict of guilty on both counts. On 16 March 2007, and having heard a plea in mitigation earlier, the trial judge sentenced the applicant to three years' imprisonment on each count. He ordered that one year of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of four years' imprisonment. The sentencing judge directed that a minimum of two years and nine months' imprisonment be served before the applicant became eligible for parole.

3 The applicant seeks leave to appeal against his conviction on two grounds:

Ground 1: the trial of the applicant miscarried in that the prosecution were (sic) permitted to alter its case after the close of evidence and at the stage of the final address.

Ground 2: the trial of the applicant miscarried in that the learned trial judge permitted the prosecution to seek convictions on the basis of conspiracies that were substantially different to the conspiracies as pleaded in the presentment.

4 In order to facilitate the consideration of the above two grounds it is necessary to explain briefly the nature of the Crown case and to summarise parts of the evidence. The Crown case was that between 1 March 2000 and 7 March 2004 the applicant, together with his son, illegally harvested timber logs and tree ferns from an area of land situated in Boolarong in Gippsland. The land upon which the harvesting was said to have taken place was approximately 100 acres in size and contained the interest of three landholders. The first landholder was Grand Ridge Plantation Pty Ltd which company was a subsidiary of Hancock Victorian Plantations Pty Ltd. Hancock Victorian Plantations held a licence to occupy the land and use it for plantation purposes under the Victorian Plantations Corporation Act 1993. The second landholder concerned was the Schmidt family, and the third was the State of Victoria, it being alleged that part of the land from which timber and/or tree ferns were stolen was Crown land.

5 Land in Boolarong owned by the Schmidt family had been owned by George Schmidt who had farmed part of it for many years prior to his death in 2003. Upon his death the title of the property was transferred into the names of his three children. The Schmidt property shared a boundary to the north and to the west with land occupied by Grand Ridge Plantation Pty Ltd. To the east the boundary of the Schmidt property adjoined Crown land.

6 In November 1991 George Schmidt made application to the Shire of South Gippsland for a planning permit to enable the 'removal of timber for building (milling) and as firewood (wattle)'. In addition the application for a planning permit referred to the removal of blackwood and fern trees. The application stated that the work would be done by a 'logging contractor paying royalty'. A planning permit was issued by the Shire of South Gippsland to George Schmidt on 26 August 1992. It was common ground between the prosecution and the applicant that pursuant to this planning permit George Schmidt engaged the applicant to conduct timber harvesting upon his land.

7 On 4 May 2000, David Andrewartha, a forester employed by Grand Ridge Plantation and James Rankin, a planning officer employed by the South Gippsland Shire Council, observed that logging operations had been conducted on land owned by Grand Ridge Plantation adjacent to the Schmidt property. A track known as Yorks Road was situated on the Grand Ridge Plantation land. It ran in a generally north/south direction. The evidence was that the track ended approximately 500 metres to the north of the Schmidt land. Parked nearby was a bulldozer, of which photographs were taken by Rankin. A 'logging landing', being a cleared area in which trucks could be turned around and loaded with logs was found by them. The logging landing was a short distance to the south of the Yorks Road track and was situated on Grand Ridge Plantation land. An area of approximately two hectares was found to have been cleared. Blackwood and messmate trees had been felled in the area.

8 Mr Andrewartha reported his findings to police, making a statement to them on 7 May 2000.

9 On 19 May 2000 Detective Sergeant Brian Nankervis, in the company of another police officer, attended at the logging landing which had been found by Mr Andrewartha and Mr Rankin on the Grand Ridge Plantation land 15 days previously. Upon arrival at the landing they found the applicant's son, Kelly Caldwell and two other men, near a camp fire. The three men were taken back to the Korumburra police station where Kelly Caldwell was interviewed. At that time Detective Sergeant Nankervis was in possession of a map marking the locations of the logging landing, the camp fire area and two harvest areas, which were all situated on Grand Ridge Plantation land. A copy of that map was given to Kelly Caldwell. Detective Sergeant Nankervis gave evidence that subsequently on 25 May 2000 the applicant attended at Korumburra police station. The applicant showed Detective Sergeant Nankervis a planning permit issued by the South Gippsland Shire in the name of George Schmidt. The applicant told Detective Sergeant Nankervis that the permit was an 'open ended permit'. Detective Sergeant Nankervis told the applicant that he had never heard of an open ended permit and that such permits were not issued. Furthermore he told the applicant that the land upon which he (the applicant) was harvesting timber was not Schmidt's land, 'but was land owned by Hancocks', referring to the Grand Ridge Plantation land. The applicant told Detective Sergeant Nankervis that if he had done any logging on that land it was a mistake.

10 There was evidence before the jury that three days prior to the discussion had between the applicant and Detective Sergeant Nankervis at the Korumburra police station on 25 May 2000, the applicant had attended upon the Department of Sustainability and Environment. There he spoke to one Tania Booker and told her that he was enquiring about two pieces of land, the first being in relation to Crown allotment 42, Parish of Woorara. The evidence before the jury was that that Crown allotment was the land owned by the Schmidt family. Ms Booker gave evidence that the conversation she had had with the applicant led her to believe that he owned the land. The next day, being 22 May 2000, Ms Booker wrote to the applicant enclosing a photocopy of an aerial photograph together with a cadastral overlay which showed property boundaries in relation to Crown allotment 42. Ms Booker had placed three red marks on both the overlay and the photograph to enable the property boundaries to be seen clearly on the overlay.

11 The prosecution relied upon the evidence of Detective Sergeant Nankervis and of Ms Booker as being evidence of the fact that at least after May 2000 the applicant knew the boundaries of the Schmidt property and knew that he had taken timber from property operated by Grand Ridge Plantation.

12 In February 2002 Mr Gatt, the operations manager of Grand Ridge Plantation, became aware of harvesting activity on the land occupied by Grand Ridge Plantation. He found trees which had been cut and prepared to be transported as logs and tree ferns which were stockpiled on a site on Grand Ridge Plantation's land. He took photographs of numerous cut tree ferns, a log trailer loaded with blackwood logs, two bulldozers and a caravan and campsite which were situated either on the Grand Ridge Plantation's land or on an adjacent roadway used to provide access to the land.

13 On 17 September 2002 a police officer, Sergeant Coates, in company with another police officer returned to the logging landing situated on the Grand Ridge Plantation land. Sergeant Coates had been present with Detective Sergeant Nankervis when the son of the applicant, Kelly Caldwell, was found at that place on 19 May 2000. On 17 September 2002, 23 ferns were found to be loaded on a skip, and others were lying on the ground. Some of the ferns were bleeding sap and had been freshly cut. Bulldozers and chainsaws were heard to be operating in a gully. A steep path cut by a bulldozer led down into the gully.

14 Stuart Schmidt, the grandson of George Schmidt, gave evidence that he had worked on the family property in the December/January periods of 2001 and 2002 carrying out artificial insemination. He heard the sound of heavy earthmoving equipment and chainsaws coming from the Grand Ridge Plantation property and on one occasion observed a log jinker in the logging landing which could be seen from the stockyards of the Schmidt property.

15 There was a considerable body of evidence of sales of timber and tree ferns by the applicant and his son during the period 2001 to 2004. On 18 June 2001 at 12.40 am the applicant was intercepted by police in Horsham driving a vehicle which was towing a tandem trailer. Inspection by police revealed a trailer load of 65 tree ferns. The applicant said that he was taking the ferns to Adelaide.

16 The manager of Jackson Creek Sawmill in Diggers Rest gave evidence that the applicant had approached him in late 2002 seeking to sell hardwood logs. Between December 2002 and January 2004 a total of 20 loads of hardwood logs were delivered to that sawmill by the applicant and/or by his son, Kelly Caldwell.

17 The manager of Longwarry Sawmill likewise gave evidence that in mid-2003 he was approached by the applicant and his son, Kelly Caldwell, who offered to provide eucalyptus hardwood logs. He purchased two loads of such logs in July 2003.

18 On 5 May 2003 a low loader driven by the applicant's son Kelly Caldwell was observed in Dandenong and was found by Department of Sustainability officers to be delivering a load of 442 tree ferns to premises in Dandenong. The applicant was observed by those officers to arrive at the Dandenong premises and commence to assist his son in the unloading of the tree ferns.

19 On the same day the applicant and his son attended at Gulf Oil, a lubricant manufacturer, in Croydon. There they took possession of approximately 45 used 44 gallon oil drums.

20 The owner and manager of Mayfield Tyre Centre in Traralgon gave evidence that in approximately 2004 he had provided the applicant with approximately 100 semi-trailer tyres which were scrap tyres not capable of being recapped.

21 The manager of Garden Groves Supplies Pty Ltd, a nursery in South Australia, gave evidence that on 28 January 2004 he had received from the applicant a delivery of 60 tree ferns of the type Dicksonia Antartica, a soft tree fern prevalent in Gippsland.

22 The manager of McGrath's' Nursery in South Australia gave evidence that he had received a load of tree ferns from K and M Caldwell on 28 January 2004.

23 Prior to December 2003 Brian Boase, the manager of the Jubilee Timber Mill in Daylesford, met the applicant and his son. A discussion took place about the provision of hardwood logs to the Jubilee Timber Mill in consequence of which four loads of timber were delivered by Kelly Caldwell to the mill in January, February and March of 2004. The timber delivered was messmate and ash.

24 On 12 January 2004 Detective Sergeant Chandler in company with other police officers attended at Yorks Road upon Grand Ridge Plantation's land. As he travelled down Yorks Road Detective Sergeant Caldwell observed a collection of 44 gallon oil drums partly buried on the side of the road. He came to a cleared area where a caravan was situated. He observed a considerable number of tyres, some of which were marked with the word 'Mayfield' which he knew to be a tyre service in Traralgon. There were two bulldozers, one of which was equipped with a winch spool with a steel wire rope. There was a number of logs which had been trimmed of outer branches.

25 On 31 January 2004 police officers observed a red Mack prime mover registered in the name of the applicant parked in Janette Street Traralgon where the applicant resided. The trailer attached to the prime mover was fully loaded with logs.

26 On 3 February 2004 police officers attended at the logging landing area and walked to where timber had been felled. Soon after their arrival the applicant and another person arrived. The applicant was observed to walk to a bulldozer, start it and drive it down a track. The applicant was followed covertly by police. The applicant was seen to be in possession of a chain saw. Eight trees were felled. The applicant was seen to be driving a bulldozer and dragging timber logs up the track. Police officers took photographs of this activity. On 27 February 2004 police officers entered the caravan situated at the logging landing. Prescription medication in the name of the applicant was found there. On 4 March 2004 police took video film covertly of the applicant driving a bulldozer and pulling logs in the logging area. On 5 March 2004 police again conducted covert surveillance at the logging landing. The applicant was observed to be attending at the scene, driving the bulldozer and shifting logs.

27 On 7 March 2004 police attended at the logging clearing and heard the sound of machinery operating. The red Mack truck registered in the name of the applicant was seen to be present, as was the applicant who was operating a Caterpillar bulldozer. At 6.15 pm that night the applicant and his son were arrested. That evening the applicant was interviewed by Constable Eldridge in the presence of Senior Constable Gibson. In the course of the interview the applicant stated that he was working out of the 'back end of Yorks Road'. He referred to the discussion he had had with Detective Sergeant Nankervis on 25 May 2000 at the Korumburra police station in the following terms:

Hancock here about five year ago accused me of being in their bush. Their maps they had showed me that they were going on, I was in their block two kilometres about. I have had that out with the CIB over at Korumburra. He had a contour map that showed him nothing. I have all the aerial maps and all the plastic degrees of that block and when he saw them, he asked me where he got ... I got them from. I told him off the Forestry, they give them to me. I have brought him to - took ... them to him to show him where I was working and the area I was working in. Then he asked me he said to me I did not have a land clearing ... licence. I said "I have not got one on Hancock's property. I am not working on Hancock's property I am working on George Schmidt's private block of ground that he owns" and I still have them maps and I still have that land clearing permit for George's block and it is still current.

28 He was asked about the permit and whether it was dated. He said "It is dated, but it is not - there is no finishing date on it." He said that it was "an open permit". He said further "Whether George had a copy of it or not, I would say he did have, but I don't know their business, I only pay the royalty".

29 On 9 March 2004 police officers attended at the premises occupied by the applicant in Traralgon. A search of the premises was conducted. One of those police officers, Senior Constable Eldridge, found an envelope concealed under a dressing table in the bedroom of the home. That envelope contained the letter from Tania Booker dated 22 May 2000, together with a map and map overlay. In addition the envelope contained a copy of a planning permit granted to George Schmidt and dated 26 August 1992. The copy planning permit was three pages in length and contained 12 conditions. It provided that the permit allowed the removal of native vegetation on Crown allotment 42. It provided further that timber harvesting and regeneration was to be carried out in areas specified on a management plan prepared by the Department of Conservation and Environment dated 24 July 1992. In addition, a condition of the permit was that timber harvesting operations were to be carried out only between November 30 and March 31 in each year 'for the life of the permit'. However the copy document did not state on the face of it the period for which the permit was granted. This copy of the permit granted to George Schmidt in 1992 became the crux of the defence of the applicant. In his response to the opening address of the prosecution, counsel for the applicant said

Mr Schmidt, George Schmidt was the landowner and he was the one who took a permit out, which has been referred to by my learned friend in his opening address and you'll no doubt hear evidence of. A planning permit in the name of G Schmidt which allowed for the removal of native vegetation. George Schmidt, the landowner, was permitted pursuant to this permit to remove the native vegetation. It said nothing about "you can't remove ferns" or anything like that. It says "you can remove the native vegetation". Pursuant to the agreement with Mick Caldwell, if you like, he engaged Caldwell; he contracted with Caldwell in that exercise that he obtained the permit for. The harvester obtains the permit; the landowner is the one who wants the land cleared; the harvester is the one who had the obligations. The permit says nothing about it only lasts for two years; it doesn't say it. The issue for you or one of the issues for you will be is, what was the state of mind, what knowledge did my client have in relation to the permit that was taken out by him; it was taken out by Schmidt. There will be no evidence in this trial that this permit, as far as he was aware and that Schmidt was aware or that my client was aware, lasted for two years as is asserted by the Crown.

30 On the eighth day of the trial, a Friday, Mr Christopher Rankin the planning officer employed by the Shire of South Gippsland, who had observed the logging operations on the Grand Ridge Plantation land on 4 May 2000, attended court to give evidence. The transcript of the trial reveals that he had in his possession the Shire file relating to the grant of the planning permit for the Schmidt land in 1992. It appears clear that the existence of the file had not been known previously to either the prosecution or the defence. The trial was adjourned until the following Monday morning to enable copies of the file to be made for the benefit of counsel. On the following Monday Mr Rankin was called to give evidence. He produced the Shire file which contained the application of Mr George Schmidt for a planning permit in February 1992 together with a planning permit which was issued by the Shire and dated 26 August 1992. Unlike the copy permit found by police in the bedroom of the applicant's home in Traralgon on 9 March 2004, the actual permit had a fourth page which contained a notation that if no time of expiry was specified upon the permit it expired two years after issue of the permit. Furthermore the file revealed that on 8 April 1994 George Schmidt wrote to the Shire advising that the 'logs have not yet been completely finished at Boolarong by the 31st March'. He sought an extension of the permit. The Shire referred this application for an extension to the Department of Conservation and Natural Resources who on 16 May 1994 wrote to the Shire confirming the Department's advice that the permit should not be extended. The Shire wrote to Mr Schmidt informing him that his request to extend harvesting operations was refused. The Council file was tendered in its entirety as an exhibit in the course of the trial with the consent of counsel for the applicant.

31 A licensed land surveyor, Mr John Macey, gave evidence that on 12 March 2004 he flew over the area of the land occupied by Grand Ridge Plantation and the Schmidt family in a helicopter, before commencing a survey with the use of a GPS device. That survey was conducted over following days and weeks. In the course of conducting the survey he took a number of photographs. As a result of his investigations he created a number of plans which were tendered into evidence. The evidence of Mr Macey was that the tyres which were found by police were adjacent to York Road and on the land occupied by Grand Ridge Plantation. The place at which the caravan had been observed by police as having been used by the applicant was also adjacent to York Road and on land occupied by Grand Ridge Plantation. A loading ramp observed by police to be used by the applicant was likewise situated on the Grand Ridge Plantation's land. A further loading ramp was found to be situated a short distance south of the northern boundary of the land occupied by the Schmidt family. A large recently cut stump was found nearby. Mr Macey observed tracks cutting into the bush heading in a south-west direction from the caravan site. He took photographs of tree stumps and areas where tree ferns had been cut in this area. This was all on land owned by Grand Ridge Plantation. Further tracks were observed by Mr Macey heading south from the cutting ramp found on the Grand Ridge Plantation's land and west of the boundary of the Schmidt land. He observed and photographed evidence of extensive fern harvesting on this track. This was on Grand Ridge Plantation's land and a distance of approximately 500 metres west of the western boundary of the Schmidt land. Upon a nearby side track and upon Grand Ridge Plantation's land Mr Macey observed a recently cut tree stump with sawdust at the base. Upon the western boundary of the Schmidt property he observed and photographed a boundary fence. He observed and photographed a logged area immediately to the west of that fence. Mr Macey observed and mapped tracks cut through the timber to the east and south-east of the loading landing, which tracks were on the Grand Ridge Plantation's land. Those tracks led to the Franklin River which was situated on Crown land immediately to the east of and north-east of the Schmidt property. There he observed and photographed logging which had occurred on Crown land along the Franklin River. He observed and photographed the residue of that logging which had been pushed into the river, as well as a track which had been cut along the edge of the river. He observed and photographed tree fern clearing on the edge of the river which was on Crown land.

32 Accordingly, there was ample evidence that substantial timber and tree fern harvesting had taken place during the period between March 2000 and March 2004 upon Grand Ridge Plantation land in particular. There was ample evidence that the applicant, together with his son, was engaged in the removal of timber and tree ferns from that land. The applicant did not contest the fact that he had been engaged in harvesting upon Grand Ridge land or upon Crown land. In his closing address counsel for the applicant stated that it was not an issue that his client had been 'harvesting up there'. He said that what was in issue was whether the harvesting was 'honest work harvesting or was it dishonest harvesting?'. The defence case was that the applicant had in his possession a copy of the permit granted to George Schmidt on 26 August 1992 which allowed him to harvest vegetation upon his land. However, the copy of the permit found by police at the premises of the applicant did not contain a copy of the last page of the permit which, as the Shire of South Gippsland file which was tendered before the jury reveals, contained a statement that the permit expired after a period of two years.

33 In the course of his closing address before the jury, counsel for the prosecution made two references to the permit document which was in the Shire of South Gippsland file. He said first -

I want to turn now to Mr Rankin. He produced the Shire file, and I'd urge you to have a look at that file, and I'll tell you why shortly. In relation to that file you can see maps in relation to land to be harvested with a permit. You can also see the permit, the conditions of the permit. And you'll see on the back of the permit that it says it's only for two years, and I don't think there is any issue about that, but what Mick Caldwell said is "Well, the copy I had didn't have that back part on it and I thought it was an open ended permit". You will see that there was an extension of the permit sought which was refused. And look at the correspondence, the Crown says, and I'll take you through it, between Schmidt and the Shire and the letter from Schmidt to Caldwell, Mick Caldwell. Clearly Schmidt at some stage was requesting a return of the deposit, because he's required to clean up, for want of a better word, and Schmidt was wanting Caldwell to return to clean up what they had already done pursuant to the permit in 1992-1994. Now I'm going to give you some dates, and I'm not going to put these document up because I don't think there is any purpose in that, but I'll just give you a brief chronology of what the file reveals. On 8 April 1994 George Schmidt writes to the council and says that the logs are not completely finished and he seeks an extension because of winter, he can't log in winter, wet weather, can't do it, right? On 17 June, so a couple of months later, this is '94, so this is towards - well - that's just outside the two year period, do you follow because it's in August '92? The council outline observations in relation to breaches of the code of practice, the Forest Code of Practice that Mr Gatt went through, so test out the problems associated with the works. On 5 September, so three months after that, Schmidt writes saying that he hoped the trees could be completed and refers to about half a dozen trees remaining to be cleared, so six trees, half a dozen, and he seeks half refund of bond money. It is pretty clear that there is a duty to clean up or conform with the requirements of the conditions of the permit, and that when you take out a permit you have to put some bond money up, so that if you don't do it they'll take the money off you, that's the way councils work, I guess. So this was put up as some sort of security. In November 1994 the council writes saying "We're not going to refund you that back until there is rehabilitation completed". In January 1995 George Schmidt writes to Mick Caldwell and he talks about, in the letter, about getting trees finished and restoration done, the trees being the six outstanding. That's exhibit M4, that's the exhibit I referred to earlier. He says that the Shire had threatened to use the bond money to restore the land to get it back to where it should be, and he says "I'll call or meet you to discuss this". If you then go to October 1997. Gordon Schmidt writes to the Shire, a letter, and says "Look, the land's now rehabilitated and I want the return of the deposit". On 11 June 1999 the refund is given. About two years later on 16 July 2001 which is part of M5, Gordon writes another letter to the Shire. It's a three point letter and he is enquiring about whether he can harvest 20 metres from the stream, from the river and wants to know if he can harvest between November and March. ... On 3 October 2001 there was an application for a permit signed by George Schmidt written by Gordon to selectively log, that's exhibit 23. On 10 December 2001 the Shire responds to that letter and it is exhibit 29, and says "You can't proceed because there is insufficient information, you haven't provided enough detail. Site plans." Etcetera. I won't go into all the detail about that but that's the correspondence. On 21 September so that then we jump from December 2001 to September 03 Gordon Schmidt writes and explains he's trying to get a permit since 2001, because he hasn't heard anything so he writes to the council and says "Well, what's happening about the permit?" Now the Crown says that that shows that from 1992 to 1994 that the works had been completed pursuant to the permit with the exception of rehabilitation and the removal of half a dozen or so trees. By 1999 the refund is given, so the works, the Crown says, are completed by this stage. By 2001 there's an application by the Schmidts for further permit, and this one's used until 2003 and that's refused. What conclusions do you draw from this? The Crown says the Schmidts were attempting to comply with permit conditions and requirements as required by the Shire. The works are completed and there is no permit in existence after 1994, and a further application for a permit is refused. What the Crown says that if the Schmidts are applying for a permit, then why would they give the Caldwell's permission to harvest? It would be premature, the Crown would say, to do so, to give permission when no permit had been granted. It doesn't make sense. It's like, for instance, you don't get a builder to build your house before you get the plans approved for the permit to build it. So you don't give Mr Caldwell permission to log your land if you're making an application for a permit to do so, do you follow? It doesn't make sense. I want to come back to that Rankin file later in relation to another point.

34 Later in that address, counsel for the prosecution stated:

To conclude ... the Crown says that this is a strong case. In relation to Mick Caldwell we say he must have known where the boundaries were in '92/94 having regard to the photo in '94, M6, and the sketch in the permit which is exhibit 24. In addition the Crown says that both accused knew the boundaries in any event after being spoken to by Mr Nankervis because they are shown the maps. And we say that really, technically, after that they knew precisely where they were and just went ahead regardless. The evidence is that neither the Schmidts nor the accused had a permit at all after 1994. The Crown says that the accused knew they did not have a permit and that is why they did not comply with so many of the permit conditions which I went through with you this morning.

35 At the conclusion of the prosecution's final address counsel for the applicant made application for the discharge of the jury. It was submitted that the case as it had been opened by the prosecution before the judge was that the applicant had knowledge that he was not working on the Schmidt land from the time that he was spoken to by Detective Sergeant Nankervis on 25 May 2000 and was told by Nankervis that he was harvesting timber upon land owned by Hancocks. It was submitted by counsel for the applicant that there had been a 'fundamental shift' in the way in which the prosecution put the case against the applicant and for that reason the jury should be discharged.

36 The trial judge dismissed the application for the discharge of the jury. In the course of his ruling he stated as follows:

During the course of the trial, an officer from the Shire was called to produce a file in relation to an application for a planning permit by a man called Schmidt. In 1992 Schmidt owned land in the area set to be logged and ferns were taken from by each of the accused in 2004. Mr Schmidt obtained a planning permit which is exhibited as part of exhibit 24, the file, and part of that permit the first three pages of it, were produced by the accused, Michael Caldwell, to a police officer in the year 2000 and referred to by Kelly Caldwell in an interview that he had with a police officer in the same year. Subsequently, when spoken to by the police, Michael Caldwell maintained that he was acting in accordance with the permit he obtained from the Schmidts in 1992, and a copy of the permit that was shown to Mr Nankervis, the police officer in 2000 was located in Mr Caldwell's bedroom. That is Mr Michael Caldwell.

37 His Honour then summarised the contents of the Shire file. He continued:

The thrust of the learned prosecutor's submission is to say really you can look at the terms and conditions of the permit, the way it was carried out and who carried it out to demonstrate beyond any doubt, he says, that it might be Michael Gaythorne Caldwell was aware of the Schmidt boundaries so that, by 2000, when the alleged conspiracy starts, he was telling untruths to Mr Nankervis and subsequently to other police officers. Mr Desmond's submission is that this is a change of case, that it is not the case he came to meet and that, had he had notice of this he would have run his defence case in a totally different way. Despite my request of him to demonstrate how that would be the case, I am unconvinced that the prosecution case would have been substantially different or, indeed, that Mr Desmond would have conducted his defence in a different manner. The thrust of his submission is that this is some sort of splitting of the case. Some change of positioning from that the defence claim came to meet. I reject that. It seems to me that the case has always been known that Michael Caldwell had carried out work for the Schmidts and indeed the opening document filed by the Crown, although I do not have it in front of me, and, in fact, read to the jury indicated that there had been activities and arrangements between the Caldwells and the Schmidts pursuant to this permit in 1992, and that that permit was, in fact, the subject of evidence in this case. The file was produced by Mr Rankin. The document is laying there in evidence since its tendering. I was certainly aware of the need to look at the terms of the permit Mr Caldwell claimed to be operating under, and no doubt Mr Desmond, with his years of skill and experience would have had similar thoughts. I do not see that there is anything unfair in what has occurred ...

38 It is contended on behalf of the applicant that the trial miscarried in that the prosecution was alleged to have altered its case after the closing of evidence. It is submitted that the presentment alleged that the applicant and his son conspired with each other to steal tree ferns (count 1) and timber logs (count 2) between 1 March 2000 and 7 March 2004 and that in both the written summary provided by the prosecution pursuant to s 6 of the Crimes (Criminal Trials) Act 1999, and in the opening address of the prosecutor at the commencement of the trial, the prosecution could demonstrate proof of the knowledge of the applicant by reason of the evidence of the conversations between the applicant and Detective Sergeant Nankervis in May 2000. It is submitted that the final analysis of the prosecutor enlarged the Crown case in a way that was unfair to the applicant.

39 In my view there is nothing in this ground. At all material times the prosecution case was that subsequent to the discussion between Detective Sergeant Nankervis and the applicant in May 2000, there was no doubt that the applicant was aware of the location of the boundaries of the properties upon which he engaged subsequently in removing tree ferns and timber logs. The Crown case, as it was opened, was that although a permit was issued by the Shire to George Schmidt in 1992 that permit lasted for only two years. The case was opened on the basis that in May 2000 Detective Sergeant Nankervis told the applicant that there was no such thing as an 'open ended permit'.

40 The defence response to the prosecution opening relied upon the fact that it was George Schmidt who obtained the permit from the Shire and not the applicant. It was argued that there would be no evidence in the trial that the applicant was aware of the fact that the permit lasted for only two years. It was contended in that response that the prosecution could not disprove that the applicant was cutting timber and removing the ferns with an honest belief 'for years as he says he was entitled to be [with the] permission of Mr Schmidt ... '.

41 Accordingly, the fact of and the consequences of the 1992 permit were very much in issue and at the forefront of the issues before the jury at the commencement of the trial.

42 It is apparent that although the depositions contained statements from Shire officers, the relevant Shire file was not in the possession of the prosecution at the commencement of the trial. Indeed in the course of pre-trial discussions as to the admissibility of certain statements contained in the depositions, the trial judge expressed the opinion that the file to which Mr Rankin's statement referred should be before the Court.

43 The Shire file was produced at an early stage of the trial on 12 February 2007.[1] In due course the Shire file was tendered absolutely by the prosecution with the express consent of the applicant's counsel, who, it might be observed was counsel of considerable experience. Prior to the tender a copy of the file had been provided to the defence. Counsel for the applicant did not object to the tender of the file, nor did he submit that any document contained in the file should be excluded from admission into evidence.

44 No doubt the effect of the tender of the council file did strengthen the prosecution case. The evidence contained in the file that George Schmidt had sought an extension of the permit which extension had been refused by the council, although not implicating the applicant directly, was a part of the matrix of circumstantial facts which supported the improbability of the applicant having an honest belief after March 2000, that he had an entitlement to remove timber and tree ferns at will pursuant to an 'open ended permit'. That said however, the evidence did not alter the prosecution case, which at all material times was that the applicant and his son conspired to steal timber and tree ferns between 1 March 2000 and 7 March 2004.

45 The applicant submits that his trial miscarried in that the learned trial judge permitted the prosecution to seek conviction on the basis of conspiracies that were substantially different from the conspiracies as pleaded in the presentment. The argument advanced by the applicant under this ground is that the presentment alleged two counts of conspiracy against him, the first being a conspiracy to steal tree ferns belonging to (a) Grand Ridge Plantation Pty Ltd, (b) the Schmidt family and (c) the State of Victoria. The second conspiracy alleged related to a conspiracy to steal timber logs from the same parties. It is thus argued that the presentment, as pleaded, 'marked the scope of the conspiracies alleged' against the applicant, but that the prosecution was permitted, impermissibly, to seek conviction on the conspiracy counts on a basis that was substantially different from that set out in the presentment. It is submitted that the charges of conspiracy alleged in the presentment required proof by the prosecution that the applicant was guilty of a conspiracy to steal from all three nominated parties and not merely one or two of them.

46 It is necessary to consider the course of the trial. At the commencement of the trial the prosecutor sought leave to file over a new presentment which alleged one count of conspiracy to steal tree ferns which it was stated belonged to the three named parties and a second count of conspiracy to steal timber which it was stated belonged to the three named parties. The previous presentments had alleged one count of conspiracy to steal tree ferns and timber belonging to each one of the three named parties. In the course of making his application for leave to file over the new presentment, the prosecutor stated that each of the three parties from whom it was alleged tree ferns and/or timber was stolen was named in the relevant counts as 'particulars' of the offence of conspiracy to steal'. The following exchange between the prosecutor and the trial judge took place at that time:

HIS HONOUR: So you point to two separate agreements.

PROSECUTOR: Yes.

HIS HONOUR: What initially, you say, to take timber and then after that moving on to ferns.

PROSECUTOR: Correct, and that both exist side by side.

HIS HONOUR: It struck me that the way you'd pleaded it initially, and you said to me on one of the mentions that the reason being the three counts is that there is one for each victim.

PROSECUTOR: Yes, that's so but upon reflection it seems to me that really the property owners are particulars of the offence in relation to conspiracy to steal we would say.

HIS HONOUR: On your case it struck me very much if you and I decided that we wanted to go out to Highpoint and steal 30 Commodores.

PROSECUTOR: Well that's right.

HIS HONOUR: We go out, we steal 30 Commodores and we don't commit a separate conspiracy to steal every Commodore.

PROSECUTOR: No. For every owner.

HIS HONOUR: Over every owner.

PROSECUTOR: No, just steal Commodores.

HIS HONOUR: We go out and we don't care who owns them, we just knock them off.

PROSECUTOR: Exactly, that's right and so we would say in this instance there is a conspiracy to steal timber on the one hand being properly belonging to, as a particular, the three land holders, and also a conspiracy to harvest ferns, also particularised by the three land owners. But it is in effect to steal the product, not because it belongs to land belonging to X, Y or Z.

47 The nature of the way in which the prosecution put its case was the subject of discussion between counsel and the trial judge on a number of occasions throughout the course of the trial. On 6 February 2007, at early stage in the trial, counsel for the applicant submitted that the prosecution case would fail unless it proved that the conspiracy to steal was a conspiracy to steal from each of the three main land owning parties. The trial judge rejected this proposition saying -

In due course I will be telling the jury the Crown do not have to prove that your clients knew that the property belonged specifically to Grand Ridge, or to George Clarence William Schmidt, Yvonne Georgia Gardiner, George William Schmidt, Andrew Leslie Schmidt or to the State of Victoria, but rather that each of them undertook to steal ferns that did in fact belong to those people without knowing that they weren't - theirs ...

COUNSEL: Each of them?

HIS HONOUR: Each of the accused---

COUNSEL: Yes.

HIS HONOUR: ---entered into an agreement to steal property from those areas which - I'll have to formulate this as precisely as I can because I'm doing this on the run. There is no need for the Crown to prove that they specifically took items from each of them but they agreed to take ferns from wherever they came from up there really. Identity of the owners was irrelevant for your clients would be the Crown's submission.

48 The matter arose again in the course of the trial on 12 February 2007. The following exchange between counsel for the applicant and his Honour took place:

COUNSEL: Your Honour, just let me raise an issue. I'm maintaining and will at the appropriate stage maintain the issue in this case is the agreement alleged between these two to go in and in effect rape and pillage ...

HIS HONOUR: To steal.

COUNSEL: from these properties. Whether that's - who ever owns them ...

HIS HONOUR: They've got to have agreed to go and steal property from places they're not entitled to from this area. They don't have to - we had this argument a number of times. They don't have to know who the title is vested in other than it's not theirs.

COUNSEL: I would probably agree to that, but my concern is when it's these properties, who ever's it is, much of our case clearly will be amongst other things "We had permission off the Schmidts" so if the Crown wanted to allege we can still get up on GRP and the State of Victoria - it should be separate counts. There is no way we can be left in a position if the jury accept our view.

HIS HONOUR: Not separate counts.

COUNSEL: It's an agreement to steal from three properties your Honour. If they wanted an agreement for one area of land where ever it roughly was and another one, as the presentment originally was, it's a different agreement. The Crown are running a specific agreement here, and they're restricted to that now.

49 Finally, and at the end of the Crown case his Honour heard argument as to the way in which the Crown case was being put. Counsel for the applicant repeated his contention that the Crown was required to prove that the agreement was to steal from all three nominated owners because of the way in which the counts were drafted. His Honour ruled that the presentment made allegation in relation to count 1 of an agreement to steal tree ferns. In relation to count 2 the agreement was to steal logs. He stated that the particularisation of the ownership of that land was simply 'particulars of the owners of the land it is said in which the accused operated and it is not essential for the Crown to prove that there was in fact an agreement to steal from each of the three nominated land owners'. His Honour directed the jury in accordance with his ruling. Having directed the jury as to the elements of the crime of conspiracy to steal he said further -

So far as the offence alleged is concerned, there is one other thing I perhaps should say to you ... you will have already observed that it is alleged that they agreed to steal ferns belonging to three people, Hancock, the various Schmidts and the State of Victoria. You will understand that those names relate to the title holders of the various land sections where the Crown say ferns and timber were taken from. That is the same in respect of each count. The allegation is an allegation of conspiracy to steal. What the Crown have to prove is that there was an agreement at some point of time between the stipulated dates, to steal ferns in relation to count 1, and steal trees in relation to count 2, but the Crown do not have to prove that they specifically agreed to steal ferns or timber, depending on which count you are considering, from all the properties of A, B and C. Those details are merely particulars of where it was that they actually operated. If there was an agreement to steal ferns in relation to count 1 and/or timber in count 2 between the specific dates the charge will be established, whether or not the accused knew the name of the land holders or some of them. For example you do not have to be satisfied beyond reasonable doubt that they agreed to steal from all of those persons; any one of them would be sufficient for the purposes of a verdict. So if they agreed to steal ferns belonging to another from that area, count 1 would be established. If they agreed to steal timber from that area between the specific dates count 2 will be established. It is important that you bear in mind that the A, B and C where they are set out are particulars of where it is the Crown alleged they operated. They do not have to prove that they specifically agreed to steal from those nominated persons ...

50 It is submitted before us on behalf of the applicant that as a result of his Honour's ruling, and his subsequent directions to the jury, the prosecution was permitted to seek conviction on the conspiracy counts on a basis that was substantially different from that set out in the presentment.

51 It is trite to say that an accused person is entitled to have identified with precision the transaction upon which the Crown relies and that he is entitled to be informed of the overt acts alleged and the legal nature of the charge brought against him.[2] In the case before the jury the agreement alleged was to steal tree ferns and/or timber from land situated in the Boolarong area. The question to be determined by the jury was whether there was an agreement to steal, tree ferns in one case, and in the other timber logs. In R v Mylonas[3] a decision of the Full Court of the Supreme Court of Western Australia, the applicants were convicted of conspiring to cultivate cannabis with intent to sell or supply it to another. Upon appeal it was argued that because the particulars involved an allegation by the Crown that the accused agreed to cultivate cannabis at two separate properties, it was necessary for the Crown to prove that the accused agreed to cultivate at each of the two properties and that the intention to cultivate at only one property would not be sufficient to justify conviction. Burt CJ said:[4]

The Crown's answer to that argument was that the indictment read with the overt acts could not be understood to be alleging two agreements and that at trial it was never understood to be alleging two agreements. Its case was that by a single agreement which remained on foot throughout the pleaded period the appellants had entered into a partnership and that the cultivation and sale of cannabis was its purpose. It was that purpose expressed in general terms which identified the agreement.

52 As to the argument mounted by the appellants that the fact that the Crown alleged a single agreement to cultivate cannabis at two places was sufficient to establish duplicity, Burt CJ said:[5]

It is an ingenious argument but I am unable to accept it. In my opinion it is the agreement which is made punishable by s 33(2) of the Act. The making of the agreement is the act which renders the parties to it liable to punishment and it is the making of the agreement which is the offence created by that sub-section. The offence is not the cultivation of cannabis in fact. It is the agreement to cultivate cannabis ... the agreement is the actus reus not the cultivation which is an overt act of evidentiary significance only.

53 A similar issue arose in R v Ongley[6], a decision of the New South Wales Court of Criminal Appeal. The appellant was tried upon a charge that he and others conspired to cheat and defraud two named parties, Cavanaugh and Alley. In effect the trial judge directed the jury that they might regard at least two different conspiracies as being charged under the count, and they were at liberty to convict one of the accused in respect of one conspiracy and another of the accused of another, and different, conspiracy. The court held that those convictions were wrong in law and a new trial was directed to be held. However the judgment of Jordan CJ contains the following passage:

The material outlined indicates that there was evidence before the jury which would enable the conclusion that Ongley and McCarthy were a pair of rogues who had agreed to cheat and defraud people by purported dealings with a stolen motor car of which they were in possession. There is nothing to indicate whether they already had Cavanaugh or both Cavanaugh or Alley in view as likely victims when they began to concert their project. There is, however, evidence that as a result of their concerted acts they did succeed in cheating and defrauding these two persons. This did not make it essential to insert these persons' names in the indictment. ... The indictment would have been perfectly good in form if it had alleged a conspiracy to cheat and defraud of divers large sums of moneys persons to whom they might succeed in purporting to sell a motor car known by the accused to have been stolen. But the assertion of the names did no harm. Indeed, it served to give the accused, on the face of the indictment, particulars of the matters on which the Crown intended to rely in evidence, which particulars, if not so given, would have had to be separately given.

In my view that is precisely the circumstance in the case now under consideration. The naming of the owners of the land provided particulars of the area from which it was alleged the agreement to steal the ferns and/or timber logs related.

54 As the trial judge observed in his ruling the agreement in this present case was the actus reus and not the actual theft of tree ferns or timber. Although it was alleged that the applicant actually took tree ferns and timber from the nominated properties, it was the agreement to steal tree ferns from the Boolarra area and the agreement to steal timber logs from that area that constituted the offence in each of the relevant counts. However, both before the trial judge and in argument before us, counsel for the applicant relied upon R v Maria[7], a decision of the Queensland Court of Criminal Appeal. The appellant in that case had been convicted of conspiracy to obtain money from two nominated legal persons by fraudulent means. The jury returned a verdict of guilty in relation to one of the nominated legal persons but not the other. In that case the charge which was laid under the Criminal Code was specific. It was that the appellant had conspired with others 'to obtain money from Vanguard Insurance Company Limited and Wilfred Park trading as Park Motors by fraudulent means'. In the circumstances the trial judge considered it appropriate to take a jury verdict in respect of each alleged victim and then reserved a special case for the determination of whether the verdict was a proper verdict. The Court of Criminal Appeal held that when the prosecution brought a charge of conspiracy under the Criminal Code it was entitled to choose what agreement it would allege, but

the agreement alleged must be proved.[8] In the case of R v Maria the agreement pleaded under the Criminal Code was the agreement to obtain money fraudulently from two named legal persons. That being the agreement alleged, it was necessary to prove that there was a conspiracy to obtain money from both persons in a fraudulent manner. That is a different factual circumstance from the case before us. In the case before us the agreement alleged was that between first day of March 2000 and seventh day of March 2004 the accused agreed to a course of conduct which would involve the commission of an offence by them, namely stealing tree ferns in one case and timber logs in another case. The naming in the presentment of the three parties who it was alleged owned the tree ferns and the logs did no more than supply sufficient particulars to identify the land owners, and thus the area to which the Crown alleged the agreement to steal timber and/or tree ferns related. The agreement alleged was to engage in a course of conduct involving the stealing of timber and/or tree ferns in the area of land owned by the three nominated parties. In my view it would have been artificial indeed in the circumstances of this case to assert that the appellants reached an agreement to steal from specific landowners. In my view the trial judge was correct in ruling and in directing the jury that it was not essential for the Crown to prove that there was in place an agreement to steal from each of the three nominated owners.

55 For the above reasons I would refuse the application for leave to appeal.

56 I have had the benefit of reading in draft the judgments prepared by Kellam and Weinberg JJA. I agree that the appeal should be dismissed, for the reasons their Honours have given.

57 I have had the advantage of reading, in draft, the reasons for judgment prepared by Kellam JA. I agree, for the reasons given, that this application should be dismissed. I wish, however, to make some additional comments of my own in relation to ground 2.

58 That ground asserts that the trial judge allowed the prosecution to seek convictions on the basis of conspiracies that were substantially different to those pleaded in the presentment. Kellam JA has demonstrated why that point is without substance. It may be useful, however, to refer briefly to some additional authorities.

59 The starting point for my discussion is the distinction to be drawn between the offence alleged, and the particulars of that offence. An accused is entitled to know the precise case which is the basis for the charge preferred against him.[9] Where the relevant particulars are not stated in the presentment, the accused is entitled to be informed of the specific transaction upon which the Crown relies, and to be apprised not only of the legal nature of the offence with which he is charged, but also the particular acts, facts, matters or things alleged as the foundation of the charge.[10]

60 A charge of conspiracy is in no way different from any other charge. An accused cannot properly plead to a charge unless he knows the precise case that he must meet. He cannot be expected to meet a charge of conspiracy unless he knows precisely with whom it is alleged that he conspired, and the scope of the conspiracy alleged.[11]

61 In a conspiracy case, each accused is entitled to particulars of the persons with whom it is alleged he conspired, and particulars of the scope of the conspiracy alleged. Even where particulars are not sought, it is incumbent upon the prosecutor to provide those particulars in the course of the opening address, at the very latest. The Crown cannot simply open the overt acts of which particulars have been given, leaving it to the end of the evidence to select from among them the conspiracy that seems to be the strongest.[12]

62 The criminal law is ordinarily concerned with conduct, usually prohibited acts, but sometimes the failure to perform required acts. At common law, conspiracy differs in that the prohibited act is the entry into an unlawful agreement, which need never be implemented.[13] Nothing need be done in pursuit of the agreement. The offence of conspiracy is complete the moment that the offenders have entered into the agreement. Repentance, lack of opportunity and failure are all immaterial, and withdrawal goes to mitigation only.[14]

63 Accordingly, an overt act performed in implementing that agreement is not an ingredient, or element, of the offence itself. Evidence of overt acts is admissible to prove the existence of the conspiracy, and sometimes to assist in the identification of the participants. However, it must always be borne in mind that particulars of overt acts, and indeed particulars in general, are not elements of the offence.[15]

64 Because conspiracy focuses primarily upon mind rather than deed, it has long been viewed with 'a degree of circumspection'.[16] It is hardly surprising, therefore, that the law places great emphasis upon the need to identify the conspiracy alleged with reasonable precision right from the very outset of the trial.[17] For the same reason, it is also necessary that the relationship between any given overt act and the conspiracy alleged should itself be spelt out with reasonable clarity.

65 In R v Theophanous,[18] this Court allowed an appeal against a conviction for conspiracy. The Court said, in a joint judgment:

[N]o date was mentioned in the particulars, nor do we consider that the issue of the time of the formation of the conspiracy was adequately identified or explained either in the addresses of counsel or the judge's charge to the jury. One important consequence of this defect was that no proper attempt was ever made by his Honour to instruct the jury concerning the possible overt acts associated with the conspiracy and the manner in which the evidence of their commission could be properly employed.[19]

66 It is implicit in ground 2 of this application that there were more than two conspiracies alleged by the Crown, and supported by the evidence. The gist of the ground is that the Crown sought, and obtained, the permission of the trial judge to have the jury convict the applicant of conspiracies that differed from those pleaded in the presentment.

67 In order to determine this ground, it is necessary to appreciate that the presentment alleged two counts of conspiracy against the applicant. The first count alleged a conspiracy to steal tree ferns belonging to three separate owners: Grand Ridge Plantation Pty Ltd, members of the Schmidt family, and the State of Victoria. The second count was in almost identical terms, save that the conspiracy alleged was to steal timber logs from the same parties.

68 The primary contention advanced in support of this ground was that the Crown was permitted, wrongly, to seek conviction on these counts on a basis that was substantially different from that set out in the presentment. Put simply, the argument was that there could be no conviction on either of these two counts unless the Crown established that there had been an agreement, to which the applicant was party, to steal, in each case, from all three nominated parties, and not simply from one or two of them.

69 On this hypothesis, the Crown would fail against the applicant if it established only that he were party to an agreement to steal tree ferns (count 1) or timber logs (count 2) from say, Grand Ridge Plantation Pty Ltd and the State of Victoria, but not the Schmidt family.

70 Of course, it is implicit in this submission that the word 'and' in each count must be read conjunctively and not disjunctively. It is also implicit that the alleged conspiracy was not merely a conspiracy to steal tree ferns (or timber logs), which were the property of one or more of the named owners, but a conspiracy to steal from all three.

71 When understood in this way, the fallacy in the submission seems to me to be readily apparent. Where a presentment alleges an agreement to commit two or more specific offences, each offence probably constitutes an essential element of the conspiracy so that, unless it is proved that the conspiracy extended to all the offences alleged, the charge will not be made out.[20] Similarly, where a count of conspiracy to defraud alleges an agreement to achieve two or more distinct objectives, each of the objectives is an essential element which must be proved.[21]

72 However, this was not a case in which either count alleged an agreement to commit two or more specific offences. Nor did either count allege an agreement to achieve two or more distinct objectives. Rather each count alleged an agreement to commit a specific offence and a single object, namely, theft from certain designated owners of property.

73 The matter can be tested this way. If an accused is charged with theft of a number of items from a department store, there is no impediment to including them all within a single count. It is well established that this form of criminal pleading does not give rise to duplicity provided that the case is put on the basis that all of

these items were stolen at approximately the same time, and from the same place.[22] It would be a surprising result if an accused were entitled to an acquittal on a count of theft pleaded in this way merely because, out of a list of a dozen or so items specified, it could be shown that one of them was not taken.

74 It would be odd indeed to say that an offender found guilty in these circumstances was convicted of an offence that was not charged. Yet that is what the applicant's case comes down to. The owners of the tree ferns, and the timber logs, were named in order to provide particulars of the conspiracy alleged, and to mark out its boundaries.[23] If it transpired that one of them was wrongly identified, that too could hardly mean that the applicant was entitled to an acquittal of the offence charged. The question for the jury to determine was whether there was an agreement to steal, in the one case, tree ferns, and in the other, timber logs.

75 Of course, the Crown had to establish that the property which was to be stolen belonged to someone other than the applicant, that he had no claim of right in relation to it, and no belief in any such claim of right. However, the identity of the actual owners of the property was nothing more than a particular of the conspiracy alleged. Provided that the evidence showed that there was an agreement to steal the property identified from at least one of the owners of the land named, (their land in this case being contiguous) that was in my view sufficient.

76 It is a basic rule of criminal pleading that no more than one offence should be charged in a single count. That rule applies to conspiracy as much as to any other offence. Duplicity is a matter of form, not evidence. To ascertain whether a count is bad for duplicity, it is generally unnecessary to look further than the count itself. On occasion, the particulars too may be considered.

77 There is no suggestion that either count in the present case was bad for duplicity. Rather, the submission was that the evidence led might have proved not one conspiracy within each count, but several such conspiracies.

78 Of course, if at the close of the Crown case there is no evidence to support the conspiracy charged, the trial judge must withdraw the case from the jury. That is a distinct issue from that of duplicity, although the two are sometimes confused. The critical matter is to ensure that the evidence establishes that the particular accused whose case is being considered joined in one agreement with at least one other person.

79 In the present case, there was no uncertainty as to the date upon which the conspiracy alleged was alleged to have commenced, and no uncertainty as to the date by which it was no longer alleged to be on foot. There was no uncertainty as to who the parties to the agreement were, or what they had agreed upon. In count 1, it was an agreement to steal tree ferns. In count 2, it was an agreement to steal timber logs. Each party to each of these agreements was said to have been aware, at all relevant times, that what was to be taken was the property of one or other of the three named owners.

80 If at the end of the case there was evidence upon which the accused could lawfully have been convicted of the conspiracy charged (even if there was also evidence of the existence of a different conspiracy), the trial judge was bound to allow the case to go to the jury. [24] Their verdict is in no way tainted by the fact, if it be the case, that one or more other conspiracies might also have been distilled from the totality of the evidence led at the trial.

81 For these reasons, as well as those stated by Kellam JA, I consider that there is no substance in ground 2.

[1] The final address of the prosecutor was delivered on 1 and 2 March 2007.

[2] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489, 495 and 501-2.

[3] (1995) 20 A Crim R 214.

[6] [1940] WN (NSW) 116.

[7] [1957] St R Qd 512.

[9] Ex parte Graham; Re Dowling [1969] 1 NSWR 231, 240-1.

[10] Johnson v Millar [1937] HCA 77; (1937) 59 CLR 467, 489, 495, 501-2.

[11] Re Mok (1987) 27 A Crim R 438, 441.

[13] R v Meyrick and Rubiffi (1930) 21 Cr App R 94.

[14] R v Aspinall (1876) 2 Qb D 48.

[15] R v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216, 249.

[17] Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317, 333 (Deane J).

[18] [2003] VSCA 78; (2003) 141 A Crim R 216.

[20] R v Roberts [1994] EWCA Crim 3; [1998] 1 Cr App R 441.

[21] See Archbold, Criminal Pleading, Evidence and Practice (2009) s33-10.

[22] See Jemmison v Priddle [1972] 1 QB 489, 495; DPP v Merriman [1973] AC 584, 593 and R v Wilson (1979) 69 Cr App R 83. It has been held that s 22(1) of the Theft Act 1968 (UK), which deals with handling stolen property creates only one offence, although that offence can be committed by doing one of a number of acts, and with one of two alternative mental states. See Griffiths v Freeman [1970] All ER 1117 and R v Sloggett [1972] 1 QB 430.

[23] See generally, R v Gregory (1972) 56 Cr App R 441, where the Court of Appeal held that on a charge of receiving stolen property, it would not be necessary to name the owner in the particulars of the charge unless the property in question was of a common and undistinctive type. In R v Deakin (1972) 56 Cr App R 841, the Court of Appeal took the view that attribution of ownership did not constitute a material averment, and should be regarded merely as a particular at most. The Court stressed that where it was 'impossible to dispute' that the property was stolen, it was immaterial from whom it was stolen.

[24] R v Greenfield (1973) 57 Cr App R 849.