R v Darby

The agreement of minds is an essential element of the offence of conspiracy. It is therefore understandable that in times when the grounds for challenging a conviction were limited to errors which appeared on the face of the record of proceedings the courts were prepared to find a miscarriage of justice based on apparent inconsistency where that record showed that one conspirator had been convicted while his alleged co-conspirator had been acquitted. In reality, the verdicts may not have been inconsistent at all: the conviction of one may have proceeded upon evidence admissible against that one which was very much stronger than the evidence admissible against the other or others. But it was not until the passage of the Criminal Appeal Act 1907 that the English appellate courts were given jurisdiction to review convictions on grounds which permitted or required scrutiny of the evidence or the summing up of the trial judge. That Act abolished the writ of error procedure which had formerly applied: see, generally, Holdsworth, History of English Law, vol. I, 7th ed. (1956), pp. 215-218.

However, notwithstanding that henceforth the courts were enabled to have regard to the sufficiency of the evidence in support of a particular conviction, the old rule had become firmly established. There had been some distinctions drawn, depending on whether the conspirators were tried together or separately, and whether there were joint or separate informations. In R. v. Plummer [3] , the Court for the Consideration of Crown Cases Reserved applied the basic rule to a case in which three persons were charged jointly with conspiracy and one pleaded guilty and the other two were acquitted. The conviction of the third was quashed. It was held that the three accused being jointly indicted, the trial should be regarded as joint, with the result that the record of conviction "would be inconsistent and contradictory, and so bad on its face" [4] , per Bruce J. The cases are exhaustively examined in the careful and comprehensive judgment of Roskill L.J. in the decision of the Court of Appeal in Director of Public Prosecutions v. Shannon [5] . It is unnecessary to duplicate that review.

1. [1902] 2 K.B. 339. 2. [1902] 2 K.B., at p. 348. 3. [1975] A.C. 717.

In Dharmasena [6] , two persons were tried together on, inter alia, a joint charge of conspiracy to murder. They were both convicted. One appealed successfully, and on a new trial was acquitted of the conspiracy charge. Their Lordships advised that because of the rule that when two persons are tried together on a charge of conspiracy the only possible verdict is either that both are, or neither is, guilty, an order for the retrial of one makes it imperative that the other should also be retried at the same time. In the circumstances, that procedure not having been followed it was held that the proper course was to treat the later acquittal of one as requiring the acquittal of the other. In the course of the reasons of their Lordships, it was stated [7] :

"After this verdict" [that is, on the retrial] "the position was that of two conspirators one had been found guilty by one jury and the other acquitted by another."

"In their Lordships' opinion this is an impossible result where conspiracy is concerned. It is well-established law that if two persons are accused of conspiracy and one is acquitted the other must also escape condemnation. Two at least are required to commit the crime of conspiracy; one alone cannot do so. In the present case the only conspirators suggested were the two accused persons, and there were no others, known or unknown, who might have participated in the crime. It is true that one conspirator may be tried and convicted in the absence of his companions in crime: Reg. v. Ahearne [8] , but where two have been tried together so that the only possible verdict is either that both are, or neither is, guilty, an order for the retrial of one makes it imperative that the other should also be retried."

1. (1852) 6 Cox C.C. 6.
   1. [1951] A.C. 1.
   2. [1951] A.C., at pp. 5-6.
   3. (1852) 6 Cox C.C. 6.

In the case of Shannon [9] this area of the law was subjected to a rigorous review, both in the Court of Appeal and the House of Lords. Shannon was one of a number of defendants charged on an indictment containing twenty-two counts. In one of those counts he was charged with one Tracey with conspiring dishonestly to handle stolen goods. Shannon pleaded guilty, was convicted and sentenced to imprisonment for four years to run concurrently with sentences imposed in respect of other offences. Tracey pleaded not guilty, and was eventually acquitted. Shannon then appealed on the ground of mutually inconsistent entries on the record touching the guilt of Tracey and himself, there being but one record notwithstanding the different pleas and the fact that there was no joint trial. Roskill L.J., speaking for the Court of Appeal, summed up that Court's view of the development of the law in the following terms [10] :

We think that the conspiracy cases decided before 1907 support the following propositions of law as at that date:

(1) If A and B alone (that is with no other person named or unnamed) are indicted and tried together for conspiracy together, the jury must be told that both must be convicted or both must be acquitted, and if one is convicted and the other acquitted, the conviction must be quashed.

(2) If A and B alone (that is with no other person named or unnamed) are indicted but only A is tried, either because B is dead or has disappeared, and A is convicted of conspiracy with B, that conviction is in no way vitiated by B's death or absence.

(3) If A and B alone (that is with no other person known or unknown) are indicted for conspiracy and only A is tried and convicted, and subsequently B is tried and acquitted, A's conviction must be quashed.

(4) If A and B alone (that is with no other person known or unknown) are indicted for conspiracy together and A pleads guilty and B not guilty and B is tried and is acquitted, A's conviction must be quashed.

We further think it clear that since 1907 not only have the cases upon which the foregoing propositions of law are founded been consistently followed and applied, but that they and the later cases (if the latter be correctly decided) support the further propositions:

(5) If A and B alone (that is with no other person named or unnamed) are indicted for conspiracy together and both plead not guilty and both are tried and convicted, either together or on separate occasions, and B's conviction is later quashed for any reason, whether for misdirection or insufficient evidence to justify conviction or (since 1966) because the verdict against B is unsafe and unsatisfactory, A's conviction must be quashed.

(6) If A and B alone (that is with no other person named or unnamed) are indicted for conspiracy together and A pleads guilty, and B is tried either on the same occasion or on a later occasion and is convicted but B's conviction is later quashed for any reason, A's conviction must be quashed.

1. [1975] A.C. 717. 2. [1975] A.C., at pp. 733-734.

The Court of Appeal then considered whether it could justify a departure from these propositions because of the changes in the law applicable to criminal appeals wrought in 1907 and in later years. It accepted the force of the academic criticisms that have been levelled at the present state of the law (Smith and Hogan, Criminal Law, 3rd ed. (1973), p. 181, and Glanville Williams, Criminal Law, 2nd ed. (1961), par. 213), and made no secret of the conclusion to which it would come if it was free to do so. However, the Court decided that it was "clear law beyond the power of judicial review" that if A and B are indicted and tried together (there being no other alleged conspirators), however strong the evidence against A and however weak it be against B, both must be convicted or both acquitted. The question was not one of appellate procedure nor one of evidence or proof, but of the nature in law of the offence of conspiracy. Notwithstanding that A admits that he is guilty of conspiring with B (and no one else), the effect of the acquittal of B is to deny the existence of the conspiracy and not merely a finding of no conspiracy against B. Since there is no conspiracy, A's conviction must be quashed.

In the House of Lords, emphasis was placed upon the distinction, in a case where there is a charge of conspiracy against A and B (and no one else), between separate trials, on the one hand, and a joint trial on the other. The facts in the case satisfied the former description, and their Lordships were unanimous in holding that a subsequent acquittal of B does not of itself warrant setting aside the conviction of A. In that respect the decision in Dharmasena [11] was disapproved.

However, differing views were expressed in relation to the case of a joint trial. Lord Morris of Borth-y-Gest (with whom Lord Reid agreed) frankly acknowledged that here the force of logic comes into collision with the rule that on a joint trial of alleged conspirators (there being no one else) the jury must either convict or acquit them all. He considered it a desirable goal in the administration of the criminal law to avoid complications and subtleties, and that viewed in that light the old rule had much to commend it and it would therefore be wiser to adhere to it.

Viscount Dilhorne recognized the propriety of the rule in the case of a joint trial where there is no material difference in the evidence admissible against each. He then postulated a case very similar to the facts of the present case, namely, one where there is a very material difference in the evidence which is admissible against A and B because A has made a voluntary confession and B has not. He emphasized the necessity for the trial judge to direct the jury to consider the evidence against each of the accused separately, and then said it would be described as "a nonsense" if they then be told that they must, even though satisfied of A's guilt, acquit him if they think that the evidence admissible against B is insufficient to convict B. He expressed an inclination to hold the rule obsolete, "the foundation for it having gone and the court now being able to ascertain what happened at the trial", but declined to give a firm conclusion on a question which did not arise for decision.

Lord Simon of Glaisdale acknowledged that it would be enough to dispose of the appeal to declare that the old rule has no subsisting validity in the case of separate trials, but he urged that such a declaration would be both illogical and practically inexpedient. He observed that to affirm the old rule in the case of joint trials would leave it in anomaly with the dicta in Robinson v. Robinson and Lane [12] , (relating to proof of adultery) and with the reasoning in Reg. v. Andrews-Weatherfoil Ltd. [13] (relating to corruption), and lead to injustice. He favoured a declaration that the whole body of rules whereby the acquittal of B of conspiracy with A must of itself be held to be inconsistent with A's conviction of conspiracy with B has no subsisting validity.

1. (1858) 1 Sw. & Tr. 362 [164 E.R. 767]. 2. [1972] 1 W.L.R. 118; [1972] All E.R. 65.

Lord Salmon, while recognizing that originally there was a sound reason for the existence of the rule, considered that that reason had probably disappeared by the middle of the last century (with the creation of the Court for the Consideration of Crown Cases Reserved), and certainly by 1907. He said [14] :

The courts are no longer obliged to approach a conviction in blinkers with their eyes directed to nothing but the record. It seems to me that the old rule has long since outlived its usefulness and should now be swept away, together with the anomalies and absurdities from which it is inseparable. It is apparent that, like Lord Simon of Glaisdale, he would abolish the rule in its entirety. 1. [1975] A.C., at p. 771.

There was a parliamentary sequel to Shannon [15] in 1977, when the Criminal Law Act 1977 U.K. abolished the rule that the acquittal of all other alleged conspirators must necessarily result in the acquittal of the person accused of conspiring with them (s. 5(8)). That result will now follow only when under all the circumstances of the case the conviction is inconsistent with the acquittal of the others.

It is argued for the respondent that the rule, in so far as it refers to joint trials, should not be disturbed, and several submissions are advanced in support of that contention. It is observed that certain of their Lordships in Shannon were prepared to support the continuance of the rule. The respondent also relies on the decision of this Court in Smith v. The Queen [16] where, so it is said, the existence of the rule is both recognized and accepted. We pause to remark that in our opinion the respondent cannot gain much comfort from that decision, for two reasons: the first is that no issue was raised in that case concerning the existence of the rule, and the second is that at the time when it was decided the rule was supported by the then binding authority of the Privy Council in Dharmasena [17] . That authority as a matter of law no longer exists: cf. Privy Council (Appeals from the High Court) Act 1975; Viro v. The Queen [18] .

1. (1970) 121 C.L.R. 572. 2. [1951] A.C. 1. 3. (1978) 141 C.L.R. 88.

In support of the continued existence of the rule, counsel for the respondent also relies on the nature in law of the offence of conspiracy. He argues that the question is not one of changing appellate procedures or distinctions in the quantum or weight of evidence. It is the very agreement of minds that forms an essential element of the crime, and this consideration makes it logical and fair to say that even though A may admit that he is guilty of conspiring with B (and no one else), the effect of an acquittal of B is to deny the existence of the conspiracy itself. The matter may be put another way: is there not a fundamental inconsistency in sustaining a conviction that A conspired with B when B has been declared to be innocent of conspiring with A? Despite the plausibility of the argument, we are unable to accept it. In our opinion, it proceeds upon a mistaken view of the true effect of an acquittal. We agree, with respect, with the observations of Lord Salmon in Shannon [19] :

An accused is entitled to be acquitted unless the evidence satisfies the jury beyond reasonable doubt that he is guilty. A verdict of not guilty may mean that the jury is certain that the accused is innocent, or it may mean that, although the evidence arouses considerable suspicion, it is insufficient to convince the jury of the accused's guilt beyond reasonable doubt. The verdict of not guilty is consistent with the jury having taken either view. The only effect of an acquittal, in law, is that the accused can never again be brought before a criminal court and tried for the same offence. So far as the Crown is concerned, the accused is deemed, in law, to be innocent. His acquittal cannot, however, affect anyone but himself and indeed would not be admissible in evidence on behalf of or against anyone else. Anyone acquitted of a criminal conspiracy may still be sued in damages for the conspiracy of which he has been acquitted at his trial. 1. [1975] A.C., at p. 772.

It is true that greater conceptual difficulties attend the task of a jury determining the guilt of both A and B on a joint trial for conspiring together (and with no one else) than in the case of separate trials. A can only be convicted if the jury is satisfied beyond reasonable doubt on evidence admissible against him, inter alia, that A and B conspired together. In essaying their duty in the case of B, the same jury which was satisfied of A's guilt in conspiring with B may on evidence admissible against B fail to be satisfied beyond reasonable doubt that B did conspire with A. The result is then that in the one trial the jury is saying at the same time that A is guilty of conspiring with B but B is not guilty of conspiring with A. In reality, of course, the apparent phenomenon is readily explained in terms of the obligation of the jury to consider separately the guilt of the two accused on the basis only of the evidence admissible against each.

Nevertheless, there remains an incongruity in the direction of a trial judge which on the one hand instructs the jury that they must consider separately the guilt of each accused, taking into account only the evidence admissible against each and on the other tells them that they must either convict them both or acquit them both. But it may be worse than that. Such a direction might well result in injustice to one accused. In a case where the evidence against A is overwhelming, a jury which is directed that they must either convict or acquit both may find it practically impossible to sustain and act on a reasonable doubt on the evidence admissible against B.

In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v. The Queen [20] requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice. In cases where there is no, material distinction in the evidence admissible against both alleged conspirators, the trial judge's advice to the jury that they will either convict or acquit both accused will continue to be appropriate not because of any technical rule but because of the circumstances of the case (cf. Lord Simon of Glaisdale in Shannon [21] .

1. (1979) 44 C.C.C. (2d) 481. 2. [1975] A.C., at p. 768.

The old rule has been subjected to much academic criticism: see, for example, Russell on Crimes and Misdemeanours, 4th ed. (1865), vol. 3, p. 146; Smith and Hogan, Criminal Law, loc. cit.; Glanville Williams, Criminal Law, loc. cit.; Peter Gillies, Law of Criminal Conspiracy (1981), p. 203; Professor Smith in [1974] Criminal Law Review, 178 ff.; I. R. Scott Verdicts in Conspiracy Cases, Modern Law Review, vol. 38 (1975), p. 221. It has received rough treatment in England, in Shannon, in Canada, in Guimond, and in the Supreme Court of Nebraska in Platt v. State [22] , although the last-mentioned case was confined to the question of apparent inconsistency in verdicts resulting from separate trials.

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

We would grant special leave to appeal, allow the appeal, set aside the judgment of the Full Court, affirm the conviction and sentence and remit the matter to the Supreme Court to make such orders as may be appropriate.

The issues raised in this appeal are of fundamental importance to the administration of criminal justice and go far beyond what is superficially a technical rule concerning co-conspirators.

Whenever the commission of an offence by one person is dependent on the commission of an offence by another, the conviction of the first person cannot stand if the other is acquitted. In conspiracy, if one of the parties to the alleged conspiracy is acquitted, no other party can be convicted and if one has already been convicted, the conviction should be set aside. As the Privy Council said in Dharmasena v. The King [23] :

It is well-established law that if two persons are accused of conspiracy and one is acquitted the other must also escape condemnation. Two at least are required to commit the crime of conspiracy; one alone cannot do so. 1. [1951] A.C. 1, at p. 6.

It has been held that, if more than two persons are charged with a conspiracy between them all and one is acquitted, the remaining persons may be validly convicted: R. v. Cooke [24] ; Reg. v. Anthony [25] . This is not universally correct. If A, B and C are charged as co-conspirators and A is acquitted, no conspiracy existed between the three. Neither B nor C can properly be (or remain) convicted of any conspiracy with A. However, if alternative counts are available, convictions of B and C of conspiracy with each other would produce no inconsistency with A's acquittal.

1. (1826) 5 B. & C. 538; [ 108 E.R. 201]. 2. [1965] 2 Q.B. 189.

The basis of this rule is regularity in the administration of justice. It avoids inconsistent verdicts against persons charged with joint offences. It also maintains the principle that a person, once acquitted, is entitled to be treated as innocent. Until recently this centuries-old rule prevailed in common law countries (see R. v. Plummer [26] ).

This is an application by the Crown for special leave to appeal against the Victorian Court of Criminal Appeal's order quashing Mr. Darby's conviction and sentence by the County Court of Victoria for conspiracy to rob whilst armed. Mr. Darby was tried by jury together with Mr. Thomas. Each was charged with conspiring with the other to commit armed robbery and no other conspiracy was charged. The charge was in these terms:

That at Melbourne in the said State on the 17th day of February One thousand nine hundred and seventy eight Leonard Clifford Thomas and John Edward Darby unlawfully conspired together to rob whilst having with them a firearm, Vladoslav Gregurek of certain money. Both were convicted. Thomas appealed separately and his conviction was quashed on the ground that there was no evidence that he became a party to the conspiracy alleged. The Court of Criminal Appeal allowed Mr. Darby's subsequent appeal, holding itself bound by the Privy Council's decision in Dharmasena. The Crown claimed that the rule, having been overruled in Director of Public Prosecutions v. Shannon [27] , should no longer be applied in Australia. It contended that, although the evidence against both accused was otherwise much the same, Mr. Darby admitted an intention to steal while Mr. Thomas did not, and that this difference made Mr. Darby's conviction defensible despite the acquittal of Mr. Thomas. 1. [1975] A.C. 717.

Mr. Darby's counsel did not raise any question of the competence or the propriety of an appeal against an acquittal (see Cameron v. Holt [28] ; R. v. Wilkes [29] ).

1. (1980) 54 A.L.J.R. 202, at p. 204. 2. (1948) 77 C.L.R. 511.

The essence of conspiracy is the agreement or combination of more than one person. Conviction for conspiracy is a determination that there was a conspiracy and that the accused was party to that conspiracy; it establishes that the accused is guilty because, amongst other things, the other alleged conspirator is guilty. Since the offence is not an independent one, a conviction should be set aside (even on a plea of guilty) if it is established between the Crown and the other person that the other is not guilty and therefore that the offence did not take place.

In Smith v. The Queen [30] this Court accepted the traditional rule as the law where persons were tried together. The rule was not questioned in its application to such a joint trial, no doubt because it was regarded as settled and because of the then authority of the Privy Council. However, in England, in Director of Public Prosecutions v. Shannon the House of Lords refused to set aside the conviction of a person who had pleaded guilty to conspiracy, before the acquittal of his alleged co-conspirator; they considered that under the then Criminal Appeal Act 1968 there was no power to interfere with a conviction based on a plea of guilty (as there was no point of law involved in the plea and there was no trial irregularity). Although it was unnecessary for the decision, the House stated that the rule in Dharmasena [31] should not be applied where there were separate trials. This was followed by the Supreme Court of Canada in Guimond v. The Queen [32] (Laskin C.J., with whom Estey J. agreed, strongly dissenting). In Shannon [33] the dual rationale given for departing from the settled rule was that the reasons for the acquittal of one conspirator may have nothing to do with the other and that an acquittal does not amount to a finding of innocence. Viscount Dilhorne and Lord Simon adopted Eveleigh J.'s statement in Reg. v. Andrews-Weatherfoil Ltd. [34] :

" where the verdicts are returned by different juries the inconsistency does not, of itself, indicate that the jury which returned the verdict was confused or misled or reached an incorrect conclusion on the evidence before it. The verdict " not guilty " includes " not proven. " We do not therefore accept" [the] "submission that inconsistent verdicts from different juries ipso facto renders the guilty verdict unsafe. If, as will usually be the case, the evidence at the two trials was significantly different this not only explains the different verdicts but also defeats the claim that inconsistency alone renders the guilty verdict unsafe." (emphasis added) Lord Simon stressed that "guilty/not guilty" are not synonymous with "guilty/innocent" "they are no more than mundane, forensic counterparts of those ethical absolutes" [35] . Lord Salmon considered directly the "true effect of an acquittal" [36] : A verdict of not guilty may mean that the jury is certain that the accused is innocent, or it may mean that, although the evidence arouses considerable suspicion, it is insufficient to convince the jury of the accused's guilt beyond reasonable doubt. The verdict of not guilty is consistent with the jury having taken either view. The only effect of an acquittal, in law, is that the accused can never again be brought before a criminal court and tried for the same offence. So far as the Crown is concerned, the accused is deemed, in law, to be innocent. His acquittal cannot, however, affect anyone but himself and indeed would not be admissible in evidence on behalf of or against anyone else. 1. (1970) 121 C.L.R. 572. 2. [1951] A.C. 1. 3. (1979) 44 C.C.C. (2d) 481. 4. [1975] A.C., at pp. 760, 764. 5. [1972] 1 W.L.R. 118, at p. 126; [1972] 1 All E.R. 65, at pp. 71-72. 6. [1975] A.C., at p. 764. 7. [1975] A.C., at p. 772.

In my opinion, the departure in Shannon and Guimond from the original rule was based primarily on confusion between the ways by which an acquittal might be reached and the effect of an acquittal. The statements in Shannon degrade the effect of all acquittals and ignore the real inconsistency that results when a person acquitted of conspiracy is indirectly adjudged guilty by convicting another of conspiring with him. Obviously, where two are charged with conspiring with each other, the evidence against one may be stronger; if the cases are considered separately only, this would appear to justify a conviction of one and an acquittal of the other. However, although they must be considered separately, they must also, because conspiracy is a joint offence, be considered jointly. Unless on separate consideration both are guilty, both must be acquitted. Our criminal justice system is geared to individual justice and not to collective guilt as reflected in joint crimes. The only way to reconcile individual justice with collective guilt is to apply the traditional rule. Suppose A is acquitted of conspiring with B. If before, at, or after A's trial B is convicted of conspiring with A, that conviction undermines and impugns A's acquittal, because B cannot be guilty unless A is also guilty of conspiring with him. Either B has been wrongly convicted and therefore is suffering unjustly at the hands of the State, or A has been wrongly acquitted and therefore is free due to some defect in the criminal justice system. In any event, the public record shows two inconsistent findings: in A's case, that A did not commit conspiracy with B and in B's case that A did commit conspiracy with B. This is not calculated to inspire public confidence in the courts.

The House of Lords in Shannon and, as I understand, a majority of the Court in this case, solve this inconsistency by holding that an acquittal does not mean that the person acquitted is innocent.

A criminal trial is not conducted as a contest between guilt and innocence (Bartho v. The Queen [37] ). It begins with the presumption that the accused is innocent. The presumption is of course rebuttable, but only by proof of guilt beyond reasonable doubt. If the prosecution fails to adduce such proof and the accused is acquitted, the presumption is said to become irrebuttable or conclusive. In truth the presumption is replaced by a judgment of innocence. A verdict of not guilty may be arrived at or explained in various ways. The jury may acquit because of a judicial direction that there is no evidence fit to be considered; because they think that the evidence is of no weight; because they are not satisfied beyond reasonable doubt that the accused is guilty; or because they are completely satisfied that he is innocent. The jury's function is to determine whether the accused is guilty beyond reasonable doubt, not whether he is innocent. However, once the verdict of not guilty is returned, judgment of acquittal is entered and that judgment is decisive of innocence. Legal dictionaries concur in defining acquittal as "the legal and formal certification of the innocence of a person who has been charged with crime; a deliverence or setting free a person from a charge of guilty" (Black's Law Dictionary, 4th ed.), or similar words. "Acquitted" means "set free or judicially discharged from a charge accusation or suspicion of guilt" (Webster's Third New International Dictionary; see also Mosley & Whiteley, Law Dictionary, 9th ed.; Hinde & Hinde, New Zealand Law Dictionary, 3rd ed.; Jowitt's Dictionary of English Law, 2nd ed.). The Shorter Oxford English Dictionary, 3rd ed., defines "acquittal" as "a deliverance and setting free from suspicion of guilt of an offence". A wealth of cases supports these definitions. Ancient texts are in accord. Blackstone stated "If the jury therefore find the prisoner not guilty he is then forever quit and discharged of the accusation" (Laws of England (1809), vol. 4, p. 361; see also Hawkins, Pleas of the Crown, vol. 2 (1824), p. 623 and Chitty A Practical Treatise on the Criminal Law (1826) vol. 1, p. 640). This is our legal heritage.

Previously this Court has made it clear that an accused is to be taken as entirely innocent of any charge of which he was previously acquitted (see Garrett v. The Queen [38] and Reg. v. Storey [39] ). The effect of Shannon [40] is that a not guilty verdict in England is of much less value than a not guilty verdict in Scotland where the verdict of not proven distinguishes the cases where innocence is left in doubt. In Australia there are no degrees of acquittal. As between the State and the accused, either every judgment of acquittal is conclusive of innocence or none is. The doctrine that acquittal does not mean innocence is unacceptable in a free society.

1. (1978) 139 C.L.R. 437. 2. (1978) 140 C.L.R. 364. 3. [1975] A.C. 717.

It is irrelevant that persons may hold private reservations about the acquitted person's innocence. It is irrelevant that remedies may be available in tort or other branches of private law arising out of the conduct of the acquitted person. The relationship between the State and the accused is not to be assimilated to private law relations.

Although logically the rule is applicable whether the trials are held together or separately, the failure to give effect to it at a joint trial would immediately expose the absurdity in the criminal justice system. No doubt for this reason, some of those in Shannon would have retained the rule for joint trials. Lord Morris of Borth-y-Gest and Lord Reid considered that the rule should be maintained in joint trials, and Viscount Dilhorne considered that it should be maintained in joint trials only where there is no material difference in the evidence against each accused.

If the Crown succeeds in this appeal, Mr. Darby would be entitled to feel treated unjustly in the extreme because, on the unchallenged decision of the Court of Criminal Appeal, Mr. Thomas should have been acquitted by direction at the joint trial. Mr. Darby would on the application of Dharmasena [41] have been acquitted. Even if the judge had not applied the traditional rule, the jury would probably have taken the same commonsense and fair course underlying the rule by acquitting Mr. Darby. Any sensible jury would find it repugnant to their sense of justice to return a verdict against A of conspiring with B (that is of conspiracy between A and B) after having been directed to find B not guilty of conspiring with A (that is no conspiracy between A and B).

In Guimond [42] the Supreme Court of Canada suggested separate trials where the evidence of one accused is significantly different from that against the other. The majority adopt this suggestion. In my opinion it underlines the weakness of the case for abandoning the traditional rule (as well as being productive of much inconvenience and expense).

The evils flowing from this abandonment are manifold. First and worst is the degradation of the effect of every acquittal. Second, some persons acquitted of conspiracy will be subjected to the outrage of the criminal justice system declaring them guilty by convicting others of engaging jointly with the acquitted person in the commission of the very crime of which he was acquitted. By logical extension to other joint crimes or crimes dependent on the guilt of another, some persons acquitted of a crime will be defamed similarly when other persons are convicted as accessory to the commission by the acquitted person of that very crime. Third, uncertainty and confusion will occur about whether those accused of joint crimes should be tried together (because the evidence against them is much the same) or separately, because it is not. When questions of evidence in favour of each of the accused are also taken into account with the inevitable jockeying by the prosecution and various accused having different views of the desirability of separate trials, the new approach is bound to encourage time-wasting and expensive pre-trial proceedings, and multiply trials and appeals. Fourth, if the suggestions about not considering cases separately on a joint trial (see Lord Salmon in Shannon) are accepted, this will erode another fundamental rule of criminal justice.

Although no judgment acknowledges it, the real reason for the proposal for separate trials appears to be that it would offend the sense of justice of the community (as represented by the jury) to be told that on a trial of two persons accused of conspiring with each other the jury could acquit (or be directed to acquit) one, yet convict the other.

There are enough uncertainties in the law. Another should not be introduced by holding that conviction of one and acquittal of the other of alleged co-conspirators can stand "unless in all the circumstances the verdicts are inconsistent". This introduces a new judicial discretion to deal with a question of substance. In any event, consideration of logic founded on the traditional understanding of the legal effect of an acquittal requires the conclusion that such verdicts are always inconsistent.

In Shannon [43] , Lord Salmon said that on joint trials juries should not be asked to consider the evidence about each accused separately. That statement is incorrect in Australian law because whatever view is taken of the necessity for acquittal of both when one is acquitted, it is fundamental in our system of individual justice that no accused is to be convicted unless on separate consideration of the case against him the jury are satisfied of his guilt. Because the charge is of a joint offence, logic and justice require that unless on separate consideration both are guilty, then both must be acquitted. Therefore the jury should be directed to consider the case of each accused separately, and then only if they are satisfied that both are guilty should they convict. Otherwise they must acquit both.

Although the problem arises in its most spectacular form in conspiracy, it is not confined to conspiracy. It arises in all crimes where parties are alleged to have acted in concert with one another, as in riot, where parties to the riot are named; robbery in company where "the company" is named; and accessory before the fact (see Hawkins, Pleas of the Crown, pp. 621-622; Georgianni v. The Queen [44] ).

1. New South Wales Court of Criminal Appeal; 12 February 1981; unreported.

The assertion in Shannon that acquittal does not amount to establishment of innocence has been said to be a very dangerous principle (see R. v. Plummer [45] . It is worse than that. It is subversive of one of the most important constitutional principles on which the freedom of our society depends. If adopted by this Court and allowed to stand, it will be the greatest setback to human rights and individual freedom in the history of this Court.

The history of human freedom is largely the relationship between the individual and the State (that is the Government or the Crown) in the administration of criminal justice. The fundamental feature of that system in Australia, and until Shannon in England, is that a judgment of acquittal is, as between the State and the accused, a complete clearance of the accused from the charge. It was no mere immunity from further prosecution as might be obtained by a pardon. It was a judgment of innocence. If this were not so, once a person is charged, he can never be cleared; there is no way in the criminal justice system to establish his innocence. Although he would be presumed innocent until verdict, if he is acquitted his innocence becomes questionable.

As the record now stands, Mr. Thomas is not guilty of conspiring with Mr. Darby, and Mr. Darby is not guilty of conspiring with Mr. Thomas. This Court now proposes to intervene to achieve the result that, although Mr. Thomas remains not guilty of conspiracy with Mr. Darby (and the State cannot properly suggest that he is guilty), Mr. Darby will be guilty of conspiring with Mr. Thomas. This brings the criminal justice system into disrepute. Either there was a conspiracy between them or there was not. In acquitting Mr. Thomas, the law states there was no conspiracy. It offends commonsense to leave a contradictory verdict that there was a conspiracy and that Mr. Thomas was a conspirator. Further, the State and the legal system impugn and undermine Mr. Thomas's acquittal by maintaining (as it does by the judgment against Mr. Darby) that there was a conspiracy and that Mr. Thomas was a conspirator with Mr. Darby.

The traditional rule reflects the wisdom of centuries and should be retained. The judgment of the Court of Criminal Appeal should stand.

Special leave should not be granted; if granted, the appeal should be dismissed.