Citation: R v Dickson (No 15) [2014] NSWSC 1861
Court: Supreme Court of New South Wales
Date: 16 December 2014
Judge(s): Beech-Jones J
Background
This decision arose during the trial of an accused (the defendant) facing multiple counts of dishonesty offences under the Commonwealth Criminal Code. The charges related to a series of assignment agreements alleged to have been shams, forming part of a scheme said to have caused or risked causing loss to the Commonwealth. A co-accused, referred to in the judgment as Mr Issakidis, was also implicated in the alleged conspiracy.
The matter came before the court as an ex tempore ruling while the jury was at lunch during the summing-up phase of the trial. Senior counsel for the accused, Mr Gross QC, raised several applications concerning the directions that had been given to the jury up to that point.
Legal Issues
- Whether the jury required a direction on Count 1 (a conspiracy charge) that all three assignment agreements must be found to be shams, mirroring the causation directions already given for Counts 2 to 5
- Whether listing the conduct attributed to each co-accused in the summing-up was unduly prejudicial to the defendant
- Whether certain aspects of the summing-up had not properly put the Crown case (reserved to be addressed at the conclusion of the summing-up)
Decision
Count 1 and the causation direction: Beech-Jones J rejected the application to give the same causation direction for Count 1 as had been given for Counts 2 to 5. His Honour identified a material distinction between the two sets of charges. Counts 2 to 5 expressly require proof that the defendant's conduct "caused a risk of loss to the Commonwealth," which imports a causal nexus demanding proof that the assignment agreements were in fact shams. Count 1, by contrast, is a conspiracy charge under section 135.4(5) of the Criminal Code (Cth) and is directed at what the alleged co-conspirators agreed would be the intended result of their conduct. It does not require proof that their actions actually achieved that result.
This distinction was reinforced by section 135.5(10) of the Criminal Code, which provides that a person may be found guilty of a conspiracy offence under that section even where obtaining the relevant gain was impossible. His Honour also rejected the related contention that the existing circumstantial direction on Count 1 was apt to cause confusion, noting that this direction went to the manner of proving the existence of the alleged agreement and was distinct from the causation elements in the written directions.
Listing co-accused conduct in the summing-up: Beech-Jones J dismissed the general objection to the listing of each co-accused's conduct in the summing-up. His Honour reasoned that a conspiracy direction which does not identify the conduct of each alleged co-conspirator relied upon to infer an agreement serves little purpose. Equally, a circumstantial evidence direction has limited utility if the jury is not told what circumstances the Crown relies upon. The jury had been told repeatedly that the listed conduct was simply what the Crown asserted it had proved and what the defence denied.
Remaining complaint: The final application, concerning alleged deficiencies in how the Crown case had been put, was deferred to the conclusion of the summing-up.
Orders Made
No orders were made in this decision.
Key Takeaways
- A conspiracy charge under section 135.4(5) of the Criminal Code (Cth) does not require proof that the conspirators' conduct actually caused a loss or achieved the intended result; it is directed at the agreed intended outcome of the alleged conspirators' actions.
- Under section 135.5(10) of the Criminal Code (Cth), a conviction for a conspiracy offence is available even where obtaining the relevant gain was impossible, reinforcing the distinction between conspiracy counts and substantive causation-based counts.
- The Supreme Court confirmed that circumstantial evidence directions in conspiracy trials appropriately identify the specific conduct of each alleged co-conspirator relied upon to draw an inference of agreement, and that doing so is not inherently prejudicial to an accused.
- Where a trial involves multiple counts with different elements, the causal requirements of each count must be assessed individually; directions appropriate for substantive offences requiring proof of actual causation do not automatically translate to conspiracy counts.
- In a lengthy and complex trial, the volume of circumstances listed in summing-up directions is a function of the length and complexity of the evidence, not of undue emphasis on the Crown case.
Legislation and Cases Referenced
Legislation:
- Criminal Code (Cth), s 135.4 (conspiracy to defraud)
- Criminal Code (Cth), s 135.5 (obtaining financial advantage by deception), including s 135.5(10)
Cases cited: None cited in the judgment.