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[1981] HCA 67
High Court of Australia
1981-07-01
Brennan JJ
Original judgment source is linked above.
The application is for leave to appeal against sentence only. The applicant was in the business of committing offences against the Fisheries Act 1965 N.T.. The illegal fishing was extensive and highly organized, and the conviction calls for a substantial sentence. The difficulty in fixing a penalty is that it would be artificial to ignore the fact that the conspiracy was carried out by persistent offences against the Act. That is why the existence of pending charges for such offences is an embarrassing complication. The problem of double sentencing can be met in practice if the sentences for conspiracy and for substantive offences are pronounced at the same time. The methods adopted by the Crown have made this impossible. The refusal of the Crown to state whether it would proceed with the charges for the substantive offences is hard to understand. If the charges are persisted with and result in convictions, any court dealing with them will be aware that the carrying out of the conspiracy has been taken into account in the substantial sentence, which would not have been warranted if the conspiracy had not been implemented. In these circumstances, I agree that the application should be refused.
Problems such as arose here are inherent in the use of conspiracy charges. Many warnings have been issued by courts against the over-use of conspiracy charges (for example see Verrier v. Director of Public Prosecutions [7] ). The allurements of conspiracy charges are very great. The imprecision of the charges, the vagueness of the evidentiary rules, the tendency for committal hearings to turn into fishing expeditions, often prove attractive to prosecutors. A cogent objection is that advanced by Glanville Williams in Criminal Law: The General Part, 2nd ed. (1961), p. 684:
The real objection, it is submitted, is to the use of a conspiracy count to give a semblance of unity to a prosecution which, by combining a number of charges and several defendants, results in a complicated and protracted trial. The jury system is unworkable unless the prosecution is confined to a relatively simple issue which can be disposed of in a relatively short time. 1. [1967] 2 A.C. 195, at p. 223-224.
The overzealous use of conspiracy charges proves embarrassing and costly not only to the accused but ultimately to prosecuting authorities and the courts. It brings the administration of criminal justice into disrepute. This is happening in Australia. History shows that the administration of justice will be well served if courts keep a tight rein on the spawning of conspiracy charges.
R
Hoar
High Court of Australia Gibbs C.J. Mason, Murphy, Aickin and Brennan JJ. R v Hoar [1981] HCA 67