R v Dickson [2008] VSCA 271

Court of Appeal (Vic)|2008-12-18|Before: VINCENT and WEINBERG JJA and ROBSON AJA

CRIMINAL LAW - Appeal against conviction - Conspiracy to steal - Filing of new presentment - Potential miscarriage of justice - Res judicata - Issue estoppel - Proper discretion exercised - Anshun principle - R v Storey and Anor (1978) 140 CLR 364 - Charter of Human Rights and Responsibilities Act 2006 - Reasonable delay - Question of whether there was an abuse of process - Whether trial judge erred in allowing the conviction when the co-conspirators were acquitted - Leave to appeal refused.

Mr S Ward, Acting Solicitor for Public Prosecutions

1 On 21 February 2008, the applicant was found guilty by the jury empanelled on his trial in the County Court at Melbourne, on one count of conspiracy to steal.[1] The presentment read -

KEVIN JOHN DICKSON at Melbourne and divers other places in the said State between the 22nd day of December 2003 and the 20th day of January 2004 conspired with TROY DAMON HOLMES, ANTHONY PURDY, JIAN PENG WANG and/or person or persons to the Director unknown and agreed to pursue a course of conduct which would involve the commission of an offence by them namely to steal a quantity of cigarettes belonging to the Dominion Group (Vic.) Proprietary Limited.

2 There had been an earlier trial conducted on the basis of a presentment which identified the co-conspirators as the applicant, Holmes and Purdy only, and, at which Holmes and Purdy were acquitted by direction of the trial judge. The jury was discharged and the trial of the applicant adjourned to a date to be fixed. Leave was subsequently given to file over the later presentment.

3 After hearing a plea in mitigation of penalty, the judge, on 17 April 2008, sentenced the applicant to imprisonment for a term of five years and six months in respect of which a non-parole period of four years and six months was fixed.[2]

4 The applicant now seeks leave to appeal against both his conviction and the sentence imposed in consequence.

The application for leave to appeal against conviction

5 In the applicant's Full Statement of Grounds it is asserted that -

Her Honour erred in allowing the filing a new presentment and/or extending the time for the filing of a new presentment.
Her Honour erred in allowing the time for the commencement of the trial to be extended.
Her Honour erred in ruling that it was permissible for the Prosecution to add Wang as a co-conspirator.
The applicant did not receive a fair trial within the meaning of the Charter of Human Rights and Responsibilities Act 2006.
Her Honour erred in ruling that the trial of the applicant did not amount to an abuse of process.
Her Honour erred in ruling that the evidence relating to Holmes and Purdy was admissible on the trial of the applicant, despite their acquittals.
Her Honour erred in refusing an application to discharge the jury as a consequence of prejudicial material being led before the jury.
Her Honour erred in ruling at the close of the Prosecution case that there was a case to answer that the applicant conspired with Holmes and Purdy.
Her Honour erred in ruling that any agreement with Wang amounted to the same agreement with Holmes and Purdy.
Her Honour's charge was unbalanced and unduly favourable to the Prosecution.

The application for leave to appeal against sentence

6 In support of this application, it is contended that -

1. The sentence imposed was manifestly excessive.

The sentence imposed failed to sufficiently take into account parity between co-offenders.

7 The applicant, who was aged 41 years at the time, had previously been a member of the Australian Federal Police and had worked for the Australian Taxation Office as an excise officer. He was a friend of a man named Greg Farrell, with whom had worked at Melbourne Airport in the mid-80s and who he was aware was employed by the Australian Customs Service in 2004.

8 At that time, the Customs Service leased a storage area in Sardine St, Port Melbourne in premises operated by a company known as Dominion Group (Vic) Pty Ltd ('Dominion') which contained a large quantity of counterfeit cigarettes that had been seized. Another part of the premises was leased by the Australian Tax Office for similar purposes.

9 The storage area was enclosed by a large cyclone wire fence, approximately 3 metres high, covered by black plastic sheeting. Entry could be effected through two gates, each of which was padlocked and fitted with an alarm. The keys for the locks were contained in a locked cupboard in a locked room in the investigation branch of the Customs Service in La Trobe Street under the control of another Customs' employee, Shane Southurst. The operation of the alarm system involved the use of a four digit code number

10 When goods were transported from the wharf to the storage area, Southurst would supervise their placement. Although Dominion staff did not have any control over the area leased by Customs, the company did provide labour, including the operators and forklifts required to move the goods. After they were received, Dominion would record the quantity and the name given to the operation.

11 The premises were large, and, after hours, Dominion would lock the outer security gate that provided access to the Customs and Tax Office storage areas. Only Dominion staff had keys to these outer locks and, therefore, any after hours access had to be arranged through them.

12 The transfer of goods from the wharf into storage was confidential information that would only be possessed by a few people in Customs and Dominion.

13 It was alleged, that shortly prior to the theft of a number of pallets of cigarettes from the storage area, the applicant contacted Mr Southurst, and Dominion employees, posing as Farrell and then as Phil O'Donnell, a case assessment officer working in the Investigation Branch, and created the impression that the legitimate removal of the stock of cigarettes was being undertaken.

14 On about 12 or 13 January 2004, Edith Mawson, a bookkeeper with Dominion, received a phone call from a person who said that he was 'Greg Farrell from Australian Customs Service.' The caller told her that

[he] had one of their storage invoices and him and his boss was going berserk about the cost of storage that was in their warehouse and it was too expensive and they wanted to destroy the goods that were in storage.[4]

15 Ms Mawson checked some of the operation names to which he referred and under which goods had been seized and found them to be correct. The caller indicated that he knew that Southurst was on leave, and that he had contacted her as he needed the security codes in order to secure access. Ms Mawson transferred the caller to Anthony Walsh, an auction manager of the Dominion Group.

16 The caller, who again identified himself as 'Greg Farrell from Customs', asked Mr Walsh whether there would be sufficient space in the caged area for another load. Walsh said he would find out and let him know. After making enquiries, Walsh subsequently left a message on message bank at the mobile telephone number with which he was provided. The same caller responded and Walsh informed him there was not enough for his needs. The caller said that he would contact the Tax Office depot to ascertain whether they could assist, mentioning the names of some people who Walsh was aware worked there.

17 The caller contacted him again later the same day and said that the Tax Office depot could not help and suggested that they could resolve the problem by disposing of some old stock. He stated that he would have to contact Southurst to make the necessary arrangements, as he was the only one with the keys and code to the storage area. Walsh then provided him with Southurst's private mobile number.

18 On 12 January 2004, Southurst, who was on holidays, received a call to his mobile telephone from a private number. The caller said 'that he was from a security company and needed to do some work on the Dominion alarm system.' Telephone company records indicate that this call was made from a public telephone, located one street away from Norray Avenue, the address of an Edward Appleton whose mobile phone number was one of those given to Dominion employees by a caller claiming to be Greg Farrell.

19 'Farrell' subsequently contacted Walsh and informed him that he could not contact Southurst, and suggested that Dominion gain access to the compound, switch off the alarm, and open the gates of the storage area. Walsh informed the caller that the company did not have keys. The caller then

suggested that Dominion could get the security to disconnect the alarm and then the padlock could be cut with bolt cutters and Customs would cover any costs involved.[5]

20 He initially suggested that the stock would be picked up on the following Friday, specifying that he wanted the collection to be made outside normal hours as he did not want the cigarettes to be seen by the public and various times were discussed. It was finally agreed that the removal of stock would be effected on 20 January.

Walsh then contacted security personnel to inquire whether the security code could be accessed to turn off the alarm and in the meantime he obtained the code from their accountant. Walsh then advised the caller that they had got the alarm code and that to use bolt cutters to cut the lock would be okay. Walsh subsequently gave the alarm code to Dominion employees, that was Brett Ralph and Guy Doyle, both storemen, and told them that bolt cutters would be used to cut the locks and that that would be fine.[6]

21 On each occasion that Walsh attempted to contact the person claiming to be Greg Farrell, the call was diverted to a message bank with the voice of another person. He said that the caller seemed very

knowledgeable, very confident, friendly and he sounded like he did know the Custom's system as to what the procedure was regarding the seized goods. He seemed to have a significant knowledge of the Customs operation, consistent with someone who was within Customs.[7]

No doubts were raised in the mind of Walsh during these contacts, as he always dealt with Southurst with respect to the caged area and had no reason to suspect any untoward behaviour.

22 Mr Anthony, another auction manager at Dominion was contacted by Walsh and informed that Customs were going to bring a shipment for storage and take one to be destroyed. He then received a call from a person who identified himself as 'Phil O'Donnell from Customs'. After discussing transport and logistics and the scheduling of the pick up, it was agreed that this would take place on the following Tuesday morning.

23 On 20 January, Guy Doyle, one of the forklift drivers for Dominion, arrived at work to assist in the pick-up by Customs. He understood that the alarms had been turned off, and that the locks had been cut with bolt cutters. Mr Doyle gave evidence that three flatbed trucks arrived, driven by Asians. There was also one well dressed Caucasian male in a suit and tie present. This person seemed to him to be in charge, as he had all the 'paper work' and was directing the operation. Later Doyle identified Anthony Purdy as this individual from photographs shown to him. Doyle and another forklift driver loaded approximately 50 pallet loads of cigarettes onto the trucks which had something taped over the symbols on their doors so that they were obscured, and the number plates were covered.

24 The Dominion employees were under the impression that the 'Customs people' would return later for the remainder of the stored cigarettes. When they did not do so, an attempt was made to contact 'Phil O'Donnell' by phone, but the calls were always diverted to message bank.

25 On 22 January, Craig Shand of the Tax Office called Southurst upon noticing that

the light for the Customs area was off on their alarm panel which was shared with Tax. Southurst immediately attended their storage area, reactivated the alarm system and discovered that he could not unlock one of the padlocks and on further investigation, a number of pallets were discovered to be missing from the Rydalmere Operation which had been most recently secure in the area on 30 December.

26 Jian Piang Wang gave evidence at both trials that he was introduced to the applicant in mid 2002 and was subsequently engaged to pick up and sell the cigarettes. At their second meeting concerning this arrangement, Wang was accompanied by his friend Liang, who held the appropriate truck licence. When Wang enquired as to the brand names of the cigarettes that they would obtain, the applicant informed him that they would be either Winfield or Peter Jackson. As it transpired this was not the case and they were Marlboro brand and of a lesser value. Liang indicated to the applicant that he had a friend, Gill, who would act as another driver and Wang had a friend, Su who it was thought could also be recruited. It was decided that the proceeds from the sale of the cigarettes would be split equally between Wang, the applicant and Liang.

27 Wang said that he sold the cigarettes and paid Liang and the other drivers. He stated that he handed the applicant separate amounts, totalling $350,000.00, as his share. He made these payments at the Northland shopping centre and, on 15 March 2004 at the last of such meetings, they were arrested. Wang told the jury that he had been charged with various offences arising from his part in these activities, had pleaded guilty and had given an undertaking to give evidence in the applicant's trial.

28 Liang gave evidence that he had known Wang since 1991 and was introduced by him to a person of the applicant's name at Northland shopping centre. He was engaged as a truck driver and went to the Port Melbourne depot to pick up a load of cigarettes at approximately 5 or 6 am in January 2004. Mobile phone records indicated that he had telephone contact with other members of the group involved at around that time. He said that he was paid a total of $30,000.00 for his participation. Liang said that he had pleaded guilty to theft and burglary, and that he too had given an undertaking to give evidence.[8]

29 A significant amount of evidence was led about surveillance and telephone intercepts indicating that there were numerous calls made between the applicant to others involved, relating, the Crown contended, to the organisation of the theft and the later selling of the cigarettes.

30 The roles attributed to Holmes and Purdy in the trial were as follows:

31 Holmes was a Victoria Police member at the time of the commission of the theft and it was alleged that he was involved in the planning of the enterprise. He was associated with both the applicant and Purdy and had trained the latter in firearms and defensive tactics. Prior to 20 January 2004, there was regular telephone contact between the three men and, on that day, there was telephone communication between them prior to 5.30am.

32 Following the theft, during February and early March 2004 police recorded telephone communications involving the applicant, Wang, Holmes and Purdy and in this period the applicant also met with Holmes in person on a number of occasions.

33 On 17 February 2004 Holmes and the applicant met at a café in Lygon Street, Carlton. This meeting was observed and monitored by police. On 18 February, the applicant called Holmes from a payphone and arranged to meet. Following that meeting, Holmes spoke to Purdy and told him that money would be available in two weeks. On 1 March 2004, the applicant who had some of the proceeds in his possession called Holmes and they met at the Mercy Hospital at about 3.00pm, after which Holmes contacted Purdy and told him there had been a meeting and that everything was 'good'. They met that night. On 13 March, Holmes arranged to meet Purdy on the coming Wednesday or Thursday and told him they would both be happy. However the applicant and Wang were then arrested.

34 Purdy, it was common ground, had been an associate of Troy Holmes for a number of years.

35 The prosecution asserted that when at 5:30am, on 20 January 2004, Wang and the other drivers went to Dominion Storage it was, Purdy, purporting to be Farrell, who met them there. He was in possession of a faxed copy of a consignment order that had a job number and description of property on it, introduced himself to the storemen as 'Farrell' and described the property as being 'the last job' completed by 'Cheyne' (referring to Southurst) a couple of weeks previously. He then produced a set of bolt cutters, the pad-lock was cut and the trucks were loaded with 30 pallets of cigarettes. Prior to leaving the storage facility, Purdy installed a new padlock on the gate and told staff that they would return to collect the remaining cigarettes prior to the next shipment of seized cigarettes be delivered into the storage facility. Purdy, Wang, and the other drivers left Dominion Storage at about 7.00am. Staff at Dominion did not see them again and phone calls to the applicant were not returned.

36 As earlier mentioned during February and early March 2004 Police recorded ongoing telephone communications involving the applicant, Wang, Holmes and Purdy. In one conversation, on 12 March 2004, an associate of Purdy's called him and they discussed the ongoing problem of Purdy not being paid. Purdy stated that he wanted a resolution and said that he was 'losing sleep' over the matter. He expressed anger towards Holmes at the delay.

37 On 13 March, Holmes arranged by telephone to meet Purdy on the following Wednesday or Thursday and told him that they would both 'be happy'.

38 Guy Doyle, a Dominion storeman said that a photograph which he was shown of Purdy resembled the male who attended at the depot.

39 The applicant did not give evidence in the trial. It was not disputed that he had worked at Customs from time to time or that he knew Anthony Purdy and also accepted that he had been acquainted with Holmes 'for years'. Any involvement in the matter was however, denied and, specifically, that he had passed himself off as Farrell or that he made any incriminating phone calls. Evidence challenging the identification of his voice as a participant in some of them was adduced and it was argued that other communications were directed to possible illegal transactions in tobacco and not the theft of the cigarettes.

The grounds of the application for leave to appeal against conviction

40 These grounds raise the contention that, as the filed over presentment was substituted outside the time limits prescribed by the Crimes (Procedure) Regulations 2004, it was incumbent upon the Crown to provide some justification for permitting this to be done and none was provided.

41 As we understand the argument, it was not contended that the Court was unable to accept the presentment but rather that the trial judge had to determine whether the Crown should be permitted to adopt this course, applying the test that it should only be allowed in 'exceptional circumstances'. As the matter was not approached correctly, the argument proceeded, the filing of the presentment should be regarded as an abuse of process and the verdict then set aside.

42 There can be no doubt that the circumstances under which the later presentment was filed were well known to all involved and the rationale for the inclusion of Wang whose alleged role had been clearly designated by that stage must have been equally apparent. Objection was taken by counsel at the trial to the filing and it is apparent from the discussion and the judge's reserved ruling that the submissions advanced at that time were virtually identical to those presented in this court. The situation was not one in which non compliance with the regulation could be perceived as depriving the Court of jurisdiction or inherently unsafe or potentially productive of a miscarriage of justice or subject to some principle of res judicata or estoppel. The trial judge considered all of these questions and stated

In the first instance, I accept the Crown submission to the effect that a decision to file a Presentment and to commence a prosecution is one for the prosecutor in his/her exercise of discretion and it is not open to the defence to seek to prevent the filing of a Presentment.

'A decision made by the prosecuting authority to prosecute or to decline to prosecute, is a decision made in the exercise of the prosecutorial discretion, and is a discretion usually exercised without the publication of attendant reasons.'

In relation to the filing of the Presentment and commencement of the trial outside the prescribed time limits I am satisfied for the reasons set out below that that there is no principle of issue estoppel applicable; there is no abuse of process either by reason of delay or the form of the Presentment; and I am not satisfied that any prejudice has been demonstrated on behalf of Dickson which would preclude such filing or otherwise warrant a permanent stay.

Accordingly, leave is granted to the Crown pursuant to section 353(5) of the Crimes Act 1958 to file a new Presentment in the form set out above and to commence a trial by 30 January 2008.

Once a Presentment has been filed there may of course be an issue properly raised for consideration by the judge as to whether or not to stay the proceeding on grounds of an abuse of process.

...

In this case there was a committal hearing in May 2005 and the first trial concluded in April 2006. His Honour Judge Davey ordered to the effect that Dickson stand to be further tried in respect of the conspiracy charge. On 28 November 2007 an application was made to and granted by the Chief Judge of this Court for leave to file a new Presentment out of time which added the name of Wang as a new co conspirator. That Presentment contained a patent error on its face in that it also included two counts in respect of which Dickson had already been acquitted at the first trial. On 25 January 2008 the Crown sought to file over a further Presentment, this time containing only one count of conspiracy in the form set out above.

The evidence upon which the Crown propose to rely at the new trial, as set out in the new Crown Opening, is essentially the same evidence which was presented against Dickson at his first trial. While Dickson is now cast as a co conspirator with Wang and/or unknown persons, such characterisation, in my view, is entirely consistent with the evidence proposed to be presented.

At the time of the first trial Wang had already pleaded guilty and been sentenced in respect of the substantive offence of theft of the subject cigarettes. Accordingly he could not then and cannot now be tried for conspiracy in relation to the same theft. In the context of a joint trial of Dickson, Holmes and Purdy it was both unnecessary and potentially confusing for the jury to name Wang as a co conspirator when he was not also being tried for that offence. Upon a re trial of Dickson alone, this artificial impediment has now been removed.[9]

43 Her Honour then addressed the arguments advanced on behalf of the applicant both in the trial and before us in support of the application that a stay of the proceeding should be ordered. Although there was, for practical purposes, a total coincidence of the relevant considerations, it is apparent that she dealt with the exercise of her discretion to allow the filing of a new presentment and whether a stay of the proceeding should be ordered separately. We are far from persuaded that she fell into error at either level.

44 The argument advanced under this ground was that, as Wang had not been named in the presentment before the Court at the first trial as an alleged co-conspirator, the Crown was, in effect, estopped from adding him in the filed-over presentment. To do so, counsel submitted, contravened the principle discussed by the High Court in Port of Melbourne Authority v Anshun Pty Ltd,[10] where the contributors to the joint judgment adopted what had been earlier said by Wigram VC in Henderson v Henderson -[11]

where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

45 It is, we consider, clear following the decision of the High Court in The Queen v Storey[12] that neither the concept of issue estoppel or the Anshun principle applicable in civil law can be directly translated into the criminal law arena. However, as Deane and Gaudron JJ pointed out in Rogers v The Queen,[13] similar underlying policy considerations might well operate in a given case to restrict the options available to the Crown and the evidentiary foundation on which its case could be presented. Although there are differing views within the authorities dealing with this matter as to the correct conceptual approach to this question, in a practical sense they are unlikely to result in different outcomes and there is no need in the present context to embark upon an analysis of them. Whichever is adopted, there is recognition of the potential for unfairness in permitting the pursuit by the prosecution of a course in a later trial that would be inconsistent with the case previously presented or which could reasonably be regarded as constituting an attempt to relitigate issues that had effectively been determined in an earlier proceeding. To some extent, this concern can be seen to be related to the notion of double jeopardy, but it also arises from the need to avoid relitigation of issues where possible and, of course, to maintain the consistency and integrity of outcomes in connected matters.

46 From the perspective of a court considering an appeal against conviction, whether or not the question is approached by reference to the relatively confined concept of issue estoppel, the Anshun principle or the notion of abuse of process, ultimately it remains to address the issue of the potential for a miscarriage of justice in the circumstances. In the present case, that question falls to be addressed, bearing in mind that, as the trial judge ruled, there was no aspect of the case presented against 'the applicant of which he was not entirely apprised at his first trial.'[14]

47 As we have indicated, Wang had pleaded guilty to theft and burglary in relation to the cigarettes and had given evidence as a prosecution witness at the previous trial. In this Court, it was indicated by counsel appearing for the Crown that he had not been included initially as he had already been dealt with for the substantive offence of theft and it was thought to be inappropriate to add his name as an unindicted co-conspirator. The situation was perceived differently by the time of the second trial in this respect but this could not be seem to have affected the situation in any significant respect, it was argued.

48 The written Outline of Submissions filed on behalf of the applicant contains the assertion that the Crown 'behaved unreasonably in not including [Wang] in the presentment in earlier proceedings' and therefore should not later have been permitted to do so without demonstrating the presence of 'special circumstances'. On what basis it was contended that the omission of Wang's name on the first presentment was 'unreasonable', what was the source of the claimed necessity to establish special circumstances, or how its later inclusion might be productive of a miscarriage of justice never clearly emerged in submissions. However, the thrust of counsel's argument was that it was incumbent upon the Crown to identify clearly the persons with whom the applicant had allegedly conspired. If it was their contention that Wang was one of those persons, this ought have been made apparent at the outset by his inclusion in the earlier presentment. Not having done so, it was unfair later to permit a different position to be adopted.

49 Of course, the applicant could not have been convicted on the first trial of conspiring with Wang but, of itself, that did not prevent his inclusion in the second presentment. The situation at that time was not encompassed by any principle of double jeopardy, res judicata or issue estoppel or potential that, his inclusion would involve the relitigation of issues affecting the applicant that had already been resolved by the jury verdict in the earlier proceeding. Nor, in any real sense, can the trial be seen to have been unfair by reason of the addition of Wang to the presentment, in the sense that there had been some deceptive or oppressive conduct by the prosecution or the process followed could be perceived in any way as potentially productive of a miscarriage of justice.

50 It must be remembered that his evidence was clearly admissible in the second trial and would have been so whether or not his name was on the presentment as the nature, substance and objectives of the conspiracy and his alleged interactions with the applicant remained unchanged. In other words, the allegations and the case presented against the applicant to support them in the second trial were, for practical purposes, identical to those advanced in the first. The major difference was that as the presentment in the second trial more completely identified the persons alleged to have conspired, it was now open to the jury to find the applicant guilty on the basis that he conspired with Wang. There is no reason in principle why this change should not have been permitted in the interests of justice.

52 Counsel for the Crown did not dispute that the filing of the 'new' presentment amounted to 'the commencement of proceedings' within the meaning of the Charter of Human Rights and Responsibilities Act 2006, and, against that background, the contention was advanced on behalf of the applicant that there has been a breach of s 25(2)(c) of the Charter and a failure to ensure that the applicant was 'tried without unreasonable delay'. Therefore it was said, the verdict should not be permitted to stand.

53 There is no need to expand upon the relationship between the rights accorded under the Charter and the principles which this Court must apply in performing its role under s 568 of the Crimes Act in addressing an application for leave to appeal against conviction. The present matter involved a number of alleged offenders and hearings and, having regard to the reasonable expectations that could be placed upon our criminal justice system, could not be assessed as inordinately protracted or resulting in the unreasonable or unjustified delay of the hearing at which the applicant was convicted. Addressed by reference to the function of this Court under s 568, there is certainly nothing that could give rise to any reasonable concern that the lapse of time between the occurrence of the events in question and the time at which it was conducted or by reason of some form of forensic disadvantage that the applicant may have suffered. Indeed none was ever suggested by his counsel.

55 This ground was also misconceived. In essence, it was argued that the designation of Holmes and Purdy as conspirators and the introduction of evidence concerning their alleged involvement amounted to an abuse of process as it failed to give full and complete recognition of their acquittals at the earlier trial.

56 The High Court made it clear in R v Darby[15] that it was open to convict one accused before the Court and acquit another who was jointly presented with him, even if they were the only two persons alleged to have participated. Until that decision, the position was that outlined in Dharmasena v R,[16] where the Privy Council confirmed the long adopted principle that, where two persons were jointly presented for trial on a count of conspiracy between themselves and no other, the acquittal of one necessitated the acquittal of the other. If that had been the law at the first trial in this matter, as both of his alleged co-conspirators had been acquitted, that of the applicant would also have followed. However, in Darby, the rule was overturned, with the majority saying -

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 :

'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.'[17]

57 The fact that Holmes and Purdy had been acquitted did not of itself mean that no case could be presented against the applicant that he conspired with them. No question of the recognition of their acquittal arose as explained by the Court in Darby and evidence of their acts and declarations could, subject to the principles set out by the High Court in Ahern,[18] constitute part of the proof of guilt in the applicant's trial.

58 This ground is similarly misconceived. In so far as an attempt was made to rely upon the judgments in The Queen v Carroll[19] and Washer v Western Australia,[20] neither of those cases support the contention. In the second of them, the contributors to the majority judgment accepted the view expressed by Barwick CJ in R v Storey[21] that

The correct principle relevant to the admissibility in a subsequent trial of evidence given in an earlier trial which has resulted in an acquittal is, in my opinion, no more than this: that a verdict of acquittal shall not be challenged in a subsequent trial: the accused in the hearing of a subsequent charge must be given the full benefit of his acquittal on the earlier occasion. Evidence which was admissible to establish the earlier offence is, in my opinion, not inadmissible merely because it was tendered in the earlier proceedings: but it may not be used for the purpose of challenging, or diminishing the benefit to the accused of, the acquittal. Such evidence will be admissible, provided it is relevant to the subsequent charge or to a defence to it but must only be allowed to be used to support that charge or negative a defence. Where evidence which would tend to prove the earlier charge or some element of it is admitted in the subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal and not use the evidence in any wise to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal.[22]

59 As we have indicated, the evidence relating to the activities of both Holmes and Purdy was relevant to the issues of the existence of a conspiracy, its nature and objectives and the applicant's participation and role in it. The admissibility of the evidence was not affected by their acquittal nor did its reception involve any failure to give full recognition to the acquittals as far as they were concerned. It was one thing for the judge in the first trial to direct acquittals consequent upon his finding that neither had a case to answer on the basis of the material evidence admissible against him, and quite another for the jury in the second to conclude on the basis of the evidence admissible against the applicant that he was guilty of conspiring with them.

60 In the course of his evidence in chief, Wang was asked about a number of intercepted telephone contacts with the applicant. In one of them (call No 14-26 January 2004) reference was made to 'a new job'. He stated that this related to the obtaining of 'illegal tobacco'.

61 The claim was made under this ground that there was an assertion of criminal behaviour unconnected with the conspiracy count that may well have contaminated the jury's deliberations. This complaint was made in the court below and was rejected by the trial judge. It falls to be considered against the following background. The applicant had been asked by the police when interviewed on 15 March 2004, about his possession of approximately $140,000 in cash, in the following exchange passage:

Q: What can you tell me about the - the light blue bag that you had?

A: The light - it contained an amount of money.

Q: Do you know how much?

A: No, I don't.

Q: With - without the exact count with me, do you agree that there was 28 bundles of $50 notes?

A: I don't know how much was there, but I'll - if you say that, then I agree with that.

Q: And if I said there was approximately - without - without knowing the exact amount, there was approximately $140,000 there, what would you say to that?

A: Yeah.

Q: Where did you get that from?

A: I got it from a guy called Jimmy.

Q: And why did Jimmy give you all that money?

A: I offered to go to - to Myrtleford to instigate some purchases - purchases of some bails of tobacco and I know it's against the law and it was money that he gave me to - to - to give to the farmers and to organise it.

Q: Okay. Now, also at the time, what car were you driving?

62 When objection was taken at the trial to his enquiry of the witness about the 'new job', the prosecutor stated:

The Crown has not gone into the matter. It may have related to the sale of cigarettes. My friend himself opened in his opening that there was some type of illegal relationship I think I recall. We don't have a transcript of the opening but he opened an illegal relationship between them in relation to chop-chop. He was the one who mentioned it. That was in part of his opening so I didn't believe I was transgressing and I went no further ...

Your Honour, what I opened was that in his record of interview in relation to the events of 15 March the money that he had received which is what he says in his record of interview was that that was on that day to go to the farmers and buy what is colloquially referred to as chop-chop. That is 15 March.

64 The possibility that the witness' explanation of the expression 'a new job' could conceivably have operated to the forensic disadvantage of the applicant is quite unreal in this situation, particularly in view of the applicant's claim when interviewed that he had the money to purchase illegal tobacco. Given the nature of the evidence and issues in the case, the unchallenged and adequate instructions given by the trial judge to the jury concerning them and trivial impact, if any, that the statement would have been likely to have upon them the discharge of the jury was not only not required but would have been a quite inappropriate overreaction.

65 This ground is based on the premise that, as Purdy and Holmes had been acquitted at the earlier trial, the applicant could not have been convicted of conspiring with them. Therefore it was argued the judge should have ruled that he had no case to answer. The claim fails for the reasons earlier discussed in this judgment. As the summary set out earlier makes apparent, there was clearly a case to answer on the admissible evidence in the applicant's trial and the judge was correct in refusing the application.[23]

66 The contention advanced under this heading is that the trial judge erred in ruling that Wang, Holmes and Purdy could be found to have been involved in the same conspiracy with the applicant. It was based upon Wang's statement that he had initially been told that the cigarettes would be Winfield or Peter Jackson brand but those actually taken were Marlboro. Accordingly, the argument proceeded, there were some separate conspiracies entered into with respect to the different products. There is little point in setting out the obstacles lying in the part of the acceptance of this patently unsustainable contention and sufficient to state that it lacks any substance. As the Crown contended in this Court, the conspiracy was to steal a large quantity of cigarettes. The matter was clearly put before the jury on that basis and it would undoubtedly have been understood by them that this was the case. A distinction of the kind suggested would have been artificial in the extreme. True, it was believed by the participants that they would be of different brands to those actually obtained and somewhat more valuable. However, that cannot be reasonably perceived as affecting the position, and as having created a second conspiracy, when the actual contents of the stolen pallets were known.

67 It was pointed out that the trial judge spent significantly more time in his charge in the presentation of the prosecution case than she did when outlining that of the applicant. The imbalance was such, it was said, that the jury may well have discounted much of what was argued on his behalf or have been left with the impression that his defence lacked merit and there was not much to consider in his favour. There was no suggestion that her Honour had commented adversely or had made disparaging remarks of a kind calculated to influence the jury or create some unfairness in the trial.

68 There is no requirement that a judge in a criminal trial give equal time in charging the jury to the respective cases adduced by the Crown and the defence.[24] What is important is that the jury should be properly instructed concerning the principles of law[25] and the issues[26] that they may need to address in their deliberations. The judge in this case satisfied her obligations in this respect and there is no reason to suppose that the jury would have been directed or influenced in their consideration of the evidence and the issues by the difference in the amount of time taken by the judge in outlining the respective cases and arguments presented by the parties.

69 There being no force in any of the grounds, the application for leave to appeal against conviction is refused.

The application for leave to appeal against sentence

70 In support of this claim the exercise of her Honour's sentencing discretion had miscarried. Two assertions were made.

71 First, it was argued that the sentence was manifestly excessive in the circumstances, representing 60 per cent of the maximum penalty applicable to the offence. Militating in his favour, it was emphasised, were the considerations that the applicant had been a Federal police member in good standing for twelve years before committing this offence and accordingly his imprisonment would be likely to be served in more burdensome circumstances, that he possessed no prior criminal history, had a stable family situation with young children, and good prospects for rehabilitation.

72 The sentencing judge directed her attention to each of these considerations in her sentencing remarks and there can be no doubt that she attributed appropriate weight to each of them. No suggestion has been made she fell into any error of commission or omission with respect to any applicable sentencing principle or factual circumstances related either to the offence or the applicant nor is any to be detected in her remarks either in the course of the hearing or when imposing sentence. The sentence itself certainly does not suggest error as it was clearly available in the proper exercise of sentencing discretion. In this context, it must be remembered that there are a number of aggravating features associated with the applicant's offending and his level of personal culpability can only be regarded as very high. As her Honour pointed out:

... the evidence at trial clearly establishes beyond reasonable doubt that you played a significant role in organising and orchestrating the theft and therefore you performed a pivotal role in monitoring the sale of the cigarettes, collecting proceeds of sale and dealing with other parties interested in the proceeds of sale. This was a very significant crime with relied upon knowledge of and/or access to confidential information and required meticulous planning, timing, organisation of various personnel and timely execution. Your complicity and culpability was only revealed after lengthy and detailed investigation.

73 Secondly, it was argued in support of the application that, as Wang had received a sentence of two years imprisonment the service of the whole of which was suspended, the principle of parity had been breached. Again, as the following passage in the judge's sentencing remarks makes clear, her Honour was conscious of the need to consider this aspect carefully.

... there is no question that Parity in the punishment of co offenders is a fundamental policy objective in sentencing. However, it is also well established that a proper approach to sentencing involves consideration of both a wide variety of personal factors, on the one hand and the particular part which co offenders may have taken in the joint offences for which they have been found guilty, on the other.
The leading case of Lowe v R, enunciated some important principles. Dawson J said: There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.
There are other important statements of principle which can be found in Lowe and other cases which reinforce the importance of examining both the circumstances of each offender as well as their respective roles in the offending conduct.
I have taken into account the circumstances of your co-offender Wang in particular, as contained in the relevant sentencing remarks of His Honour Judge Davey. There are very significant mitigating factors which applied to Wang which are not available to you. In particular:
- After making initial denials in his record of interview, Wang was fully cooperative with police and a statement containing admissions of his involvement.
- He also confirmed the content and accuracy of various telephone conversations.
- He indicated an intention to plead guilty at the first opportunity which is indicative of remorse, his acceptance of responsibility and a willingness to facilitate the course of justice; and
- He gave an undertaking to give evidence in accordance with his statement, in any trial involving yourself. He had fulfilled the terms of that undertaking.
His Honour Judge Davey when sentencing Wang stated that Wang's sentence was substantially less than it would otherwise have been but for his undertaking.
In my view the matters which gave rise to the imposition of a very lenient and wholly suspected sentence in the case of Wang do not apply in your case.[27]

74 This is not a case in which the applicant can reasonably claim that significant distinctions between Wang and himself for sentencing purposes were not present or should not have been made. Their situations were clearly not the same and we do not consider that he would be entitled to a legitimate sense of grievance concerning the different dispositions ordered in the circumstances.

75 The application for leave to appeal against sentence is also refused.

[1] Contrary to s 321(1) of the Crimes Act 1958 (Vic).

[2] A forfeiture order was also made [Sentence 1041].

[3] This summary has been prepared from the summary of evidence with which we have been provided and the transcript of the trial including the prosecution's opening and the Judge's Charge. It does not purport to provide more than a sufficiently broad description of the background to enable the context within which this judgment has been written to be appreciated. Specifically it does not refer to all of the evidence, witnesses or interactions involved, as it is not necessary to set them out for present purposes.

[8] Gill and Su also pleaded guilty to theft.

[10] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, 598.

[12] R v Storey and Anor [1978] HCA 39; (1978) 140 CLR 364.

[16] Dharmasena v The King [1951] AC 1.

[18] Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87; Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1.

[23] See Attorney General's Reference (No 1 of 1983) [1983] VicRp 101; [1983] 2 VR 410; Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207.

Human Rights and Responsibilities Act 2006

Crimes (Procedure) Regulations 2004

Human Rights and Responsibilities Act 2006

Crimes (Procedure) Regulations 2004

At a glance

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Judgment (118 paragraphs)

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Legislation Cited (4)

Cases Cited (12)