Application to have the conspiracy charge dismissed in the interests of justice
- The offence of conspiracy is created by s 11.5 of the Criminal Code. Section 11.5(6) provides:
A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.
- Mr Curtis submitted that the conspiracy charge should be dismissed pursuant to that section on the following grounds:
1. It is unfair to Mr Curtis to charge conspiracy when:
1. It is alleged that a substantive offence has been committed; and
2. The alleged co-conspirator was charged for, and pleaded guilty to, the substantive offence and not a conspiracy;
1. The trial has been rendered unfair by the manner in which the Crown has attempted to prove the charges.
- Mr Curtis did not identify any authority in which the power under s 11.5(6) has been exercised. The application relied, rather, on older authorities discussing the undesirability of charging a conspiracy in circumstances where it is alleged that a substantive offence has been committed: R v Hoar, [34] per Gibbs CJ, Mason, Aickin and Brennan JJ and at 40 per Murphy J; R v Mok, [35] per Hunt J.
- Mr Curtis submitted that the prejudice of charging an offence of conspiracy rather than a substantive offence was exacerbated where the underlying offence is a technical statutory offence such as insider trading. It was submitted that, in the present case, the Crown appeared to be relying on an offence of conspiracy so as to avoid the need to establish "Mr Curtis's relevant knowledge of, or belief in, inside information". In particular, it was submitted that the conspiracy charge allowed the Crown to contend that:
1. It need not prove the illegal character of the information in fact possessed by the accused, save ex ante and at the highest level of generality; and
2. It need not prove that the accused actually possessed any relevant knowledge.
- Mr Curtis submitted that that approach was an abuse of the use of a conspiracy charge such as to engage the operation of s 11.5(6) of the Code.
- The Crown noted that the application of Hoar was considered by the Court of Criminal Appeal in Elomar v R. [36] That was an appeal against a refusal to dismiss a charge of conspiracy under s 11.5(6). The Court (Bathurst CJ, Hoeben CJ at CL and Simpson J) observed at [494] that, in Hoar, the Court:
"went no further than to describe the preferring of conspiracy charges as 'undesirable' in circumstances where 'there is a sufficient and effective charge that this offence has been committed".
- The Court further observed that those remarks in Hoar were made in the context that both a charge of conspiracy and substantive charges had been laid. The Court considered that a concern (if not the concern) addressed in Hoar was the prospect of prolonging and complicating the trial (by including a charge of conspiracy on the indictment).
- In dismissing the application at first instance, Whealy J had referred to the remarks of Lee J in R v Shepherd [37] to the effect that, in the circumstances of that case (a wide-ranging narcotics ring), it was entirely proper and indeed in the interests of the community that charges of conspiracy be preferred. Whealy J had regarded those remarks to be of "even greater immediacy and cogency" in the case of an extensive organisation set up to take a series of activities in preparation for terrorist attacks. The Court of Criminal Appeal dismissed the appeal against Whealy J's decision.
- The present case is not one of a wide-ranging conspiratorial ring of terrorists or drug dealers. But the proposition recognised in Shepherd and endorsed in Elomar is that the remarks in Hoar cannot be elevated to an immutable rule that a charge of conspiracy is liable to be dismissed if a substantive offence could have been charged. On the contrary, in the present case, the power to dismiss the charge under s 11.5(6) does not arise unless I am persuaded to the conclusion that the interests of justice require me to take that course.
- The juridical context in which that assessment is to be undertaken was explained by the Court of Criminal Appeal in Elomar at [492]-[493]:
The selection of charges to bring against an alleged offender is essentially an exercise of prosecutorial discretion. As a general principle, the exercise of that discretion is unreviewable: Maxwell v The Queen [1996] HCA 46; 184 CLR 501, at 512 and 534, Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265 at [37], Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483 at [33]-[34], Magaming v R [2013] HCA 40; 302 ALR 461 at [20]-[22] and James v The Queen [2014] HCA 6; 88 ALJR 427 at [37].
It is only in rare cases (if at all) that courts will interfere with that discretion. In part, at least, that is a feature of the doctrine of separation of powers. Section 11.5(6) of the Code is a statutory incursion into the general principle. However, in the consideration of the exercise of the discretion conferred by s 11.5(6), courts should not lose sight of the principle or the reason for its existence. Section 11.5(6) permits a court to interfere in the exercise of the prosecutorial discretion only where it considers that the "interests of justice require it" to do so. It is clear that Whealy J did not consider that the interests of justice required him to dismiss the charge.
- Mr Curtis' submissions did not persuade me that the interests of justice required the dismissal of the charge. The submissions did not identify the substantive offence said to be available on the evidence. As already noted, on the Crown case, Mr Hartman was the insider. The Crown has not sought to prove that Mr Curtis possessed the inside information; on the contrary, the evidence is that Mr Hartman did not communicate that information to Mr Curtis in terms but, rather, sent him specific instructions (such as "buy 32,500 ERA at [such and such a price]"). Accordingly, it is not clear what substantive offence under s 1043A could have been charged. Mr Hartman pleaded guilty to "tipping" offences contrary to s 1043A(2) in respect of the information he provided to Mr Curtis. It may be accepted that Mr Hartman could, instead, have been charged with conspiracy but Mr Curtis could not have been charged with tipping: he was the person alleged to have received the communication.
- It is correct, as submitted by Mr Curtis, that the conspiracy charge does not require the Crown to prove that Mr Curtis actually possessed inside information at any point in time. That is no doubt one of the considerations to which the Commonwealth Director of Public Prosecutions had regard in deciding to charge conspiracy. I do not think it follows that there is any unfairness or prejudice to Mr Curtis. In alleging that he participated in a conspiracy to commit the offence of insider procuring, the Crown did have to prove that he knew or believed he would be procured to acquire or dispose of relevant financial products by Mr Hartman at a time when Mr Hartman would be in possession of inside information.
- In my view, a charge of conspiracy in the present case served rather than subverted the interests of justice. That view is of course premised on the correctness of my conclusion that there was evidence upon which the jury could convict Mr Curtis of the offence charged. This was a case in which, unlike Hoar, the case to support the charge of conspiracy was relatively simple, whereas a case to support 45 substantive offences (or even a subset of them) would have been significantly lengthier and more complex. Indeed it might be thought that this was a paradigm case for a charge of conspiracy to be preferred.
- In all the circumstances, I was not persuaded that the interests of justice required the Court to dismiss the charge. For those reasons, I dismissed the application invoking s 11.5(6) of the Code.