Citation: R v Cagla Kucukeren [2008] NSWDC 254
Court: District Court of New South Wales
Date: 31 July 2008
Judge(s): Cogswell SC DCJ
Background
The accused was charged with two offences arising from events between 11 and 25 August 2007. The prosecution alleged she provided information about ATM service times at a Westfield shopping centre to a person named Lee Macarthur in exchange for a promise of $5,000, knowing that Macarthur intended to rob those ATMs.
The first count charged conspiracy to commit robbery. The second count charged conspiracy to incite, procure, aid, counsel, hire and command persons unknown to commit robbery, essentially an alleged conspiracy to be an accessory to the substantive offence.
The accused filed a notice of motion seeking a permanent stay of the first charge and either a quashing or permanent stay of the second charge. The applications raised both a legal question about whether the second charge described a known offence, and an evidentiary question about whether the available evidence could support either charge at all.
Legal Issues
- Whether the offence alleged in count two (conspiracy to aid and abet the commission of a robbery) is an offence known to the law in New South Wales.
- Whether the recognised heads of criminal conspiracy at common law have been closed, such that new heads cannot be added by courts.
- Whether there was evidence capable of establishing an agreement between the accused and Macarthur, and an intention to carry out that agreement, sufficient to sustain both charges.
Decision
On the first question, the court examined the classical definition of criminal conspiracy as an agreement to do an unlawful act or to do a lawful act by unlawful means. After reviewing the case law and academic texts, the court accepted the argument that the recognised heads of criminal conspiracy in New South Wales are effectively limited to conspiracy to commit a crime, conspiracy to defraud, and conspiracy to pervert the course of justice. New heads cannot be added by the courts; that function belongs to parliament.
The court found that the second count did not fall within any recognised head. A conspiracy to aid and abet the commission of an offence is not the same as a conspiracy to commit a crime. The cases offered by the prosecution in support of the charge, including the Victorian decision in Regina v Skewes and several other authorities, were found to provide only limited and non-binding support. None established that such a charge is a known offence in New South Wales. The court therefore concluded that the second count did not constitute an offence known to the law and ordered that it be quashed.
On the evidentiary question relating to count one, the court turned to the police interview transcript and telephone intercept records. The accused's own account was that Macarthur had approached her for information about ATM service times and, in the same conversation, offered her a $5,000 cut from the proceeds. Her answers during the police interview indicated she knew something criminal was intended and expected that security guards would be subjected to physical force or threats. The court found this evidence capable of supporting an inference that the accused had agreed with Macarthur to provide information in exchange for payment, knowing a robbery would proceed.
Because the evidence was capable of bearing that interpretation, the court refused the permanent stay of count one. The court was careful to note that whether a jury would ultimately accept that interpretation was an entirely separate question from whether the evidence was sufficient to allow the charge to proceed.
Orders Made
- Application for permanent stay of count one (conspiracy to commit robbery): refused.
- Count two (conspiracy to aid and abet robbery): quashed as not constituting an offence known to the law in New South Wales.
Note: The judgment records that on 7 October 2008, a jury found the accused not guilty of both offences.
Key Takeaways
- The District Court held that the recognised heads of criminal conspiracy in New South Wales are effectively limited to conspiracy to commit a crime, conspiracy to defraud, and conspiracy to pervert the course of justice; courts cannot create new heads, which remains a function for parliament.
- A charge framed as conspiracy to aid and abet the commission of a serious indictable offence does not fall within any established head of criminal conspiracy and therefore does not constitute an offence known to the law in New South Wales.
- Academic commentary and interstate authorities may offer some judicial support for a legal proposition, but where none provides binding authority for the existence of an offence, that support is insufficient to sustain the charge.
- Sufficient evidence existed to allow a conspiracy to commit robbery charge to proceed where the accused's own police interview disclosed knowledge of criminal intent, an exchange of information for promised payment, and an expectation of violence against third parties.
- The threshold for resisting a permanent stay on evidentiary grounds is whether the evidence is capable of supporting the charge, not whether it would necessarily persuade a jury.
Legislation and Cases Referenced
Legislation:
- Accessories and Abettors Act 1861 (UK)
- Crimes Act 1900 (NSW)
- Crimes Act 1914 (Cth)
- Criminal Law Act 1977 (UK)
- Migration Act 1958 (Cth)
Cases:
- Mulcahy v The Queen (1868) LR 3 HL 306
- Director of Public Prosecutions v Withers [1975] AC 842
- Peters v The Queen (1998) 192 CLR 493
- Gerakiteys v The Queen (1984) 153 CLR 317
- Osland v The Queen (1998) 197 CLR 316
- R v Walton & Gardiner (1993) 177 CLR 378
- The King v Boston (1923) 33 CLR 386
- Nitra v The Queen (1983) 51 ALR 53
- Regina v Skewes (1981) 7 A Crim R 276
- Regina v Cahill (1978) 2 NSWLR 453
- Regina v Ongley (1940) 57 WN (NSW) 116
- Regina v Smith (1995) 1 VR 10
- R v Hollingshead [1985] 1 All ER 850
- Pokoon-Tai v The Queen (1980) HKLR 492