The Charter vs One-Man Conspiracies

One of the flurry of Charter passing mentions this week is R v Dickson [2008] VSCA 271, an appeal by a former AFP officer who was convicted of posing as a customs officer to facilitate the theft of some counterfeit cigarettes being held in a Port Melbourne warehouse. He was convicted of conspiring with three other people: Holmes (then a Victoria Police officer), Purdy (an associate of Holmes’s) and Wang (the fence, turned Crown witness.) But there were problems with each of these alleged co-conspirators. At Dickson’s first trial (which was joint with Holmes and Purdy), the trial judge directed an acquittal of the latter two. Because the jury had to be discharged, Dickson was tried again on his own, and it was only then that the prosecution joined Wang as a co-conspirator (arguing that, given his guilty plea, including his role in the original joint trial would have been too confusing for the jury.

The theft occurred in January 2004 and Dickson’s first trial ended in mid-2006. However, it was not until late 2007 that the new presentment against Dickson was filed. Moreover, the prosecution stuffed that one up and they had to have another go in early 2008. These events later events all happened after the Charter s. 49(2) cut-off date of 1/1/7 (and the final presentment occurred after the Charter s. 49(3) cut-off date of 1/1/8.) The convicted Dickson appealed on numerous grounds, including complaints against the presentment and the conduct of the trial, as well as an (apparently vague) complaint that ‘he did not receive a fair trial within the meaning of’ the Charter. The Court of Appeal refused leave and had this to say about the Charter ground:

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.

Just pausing there, a couple of things to note. First, the Crown here seems to be conceding and the Court seems to be accepting, in what appears to be a first, that King J’s view on the meaning of ‘commenced’ in Charter s. 49(2) as meaning the laying of charges isn’t the end of the story. As I’ve speculated previously, if the charges are changed down the track, then arguably the proceedings re-commence, potentially bringing old criminal proceedings into the purview of the Charter. Certainly, the application of the Charter in this case would otherwise make no sense, as Dickson was originally charged (and, indeed, tried) well before 1/1/7. Second, Dickson’s ‘fair hearing’ complaint seems to have morphed into an ‘unreasonable delay’ complaint, which is a much narrower argument and was dispatched as follows by Vincent, Weinberg and Robson:

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.

And there’s two more things to say about this. First, it’s far from clear that there’s ‘no need to expand upon the relationship between’ the Charter and Victoria’s statutory appeal provision:

568(1) The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal

To the contrary, the Charter’s interpretation mandate may have changed the meaning of that provision (and terms like ‘miscarriage of justice’) and, as well, the Charter’s conduct mandate may have changed what trial and pre-trial events amounted to a ‘wrong decision on any question of law’.

Second, in particular, the Court of Appeal’s assessment focuses only on the ‘reasonable expectations of the criminal justice system’ and the risk of ‘forensic disadvantage’. But that arguably gives short shrift the ‘minimum guarantee’ offered by Charter s. 25(2)(c), which may well cover broader concerns, such as the defendant’s entitlement to a system and processes that can resolve the question of his guilt of theft in under four years, absent exceptional difficulties. In particular, the major delay in this case was the prosecution’s charging of Holmes and Purdy and what proved to be an inadequate case, thus costing Dickson his chance to have the matter resolved in 2006. Dickson’s reasonable expectations and whether or not he suffered a forensic disadvantage are arguably beside the point, as the Charter may have changed the ‘function of this Court under s. 568’ beyond the confines of traditional appellate law.

Anyway, I’m a bit surprised that Dickson’s ‘fair hearing’ complaint ended up shrinking to a ‘reasonable delay’ complaint, as his other appeal grounds raised quite different human rights concerns.His major complaint was the late adding of Wang to the conspiracy, which conveniently meant that the Dickson’s alleged co-conspirators included one person who had pled guilty to the crime, rather than just two people who a judge had already acquitted. The Court of Appeal held that the acquittals were a non-issue because of a High Court ruling from 1982:

The High Court made it clear in R v Darby 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, 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…

That’s all true, but the interesting question is whether or not Darby is still good law under the Charter, a question that would have been very live had Wang not been belatedly added to the presentment. Darby was based on the logic that an acquittal isn’t the same as innocence:

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.

But this view prompted a furious dissent by Murphy J, who observed:

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 (1902) 2 KB 339, at pp 348-349 . 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. (at p686)

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

That these concerns are not mere matters of principle is made clear by the fact that Darby was confirmed in Mickelberg v R, when the High Court upheld Peter and Raymond Mickleberg’s convictions for the Perth Mint Swindle despite the acquittal of their brother Brian. The case has belatedly joined the ranks of Australia’s miscarriages of justice.

Ah, Lionel, we miss you (sorta.) But it’s clear what right this argument would raise under the Charter:

25(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

In Dickson’s case, the person whose rights are being harmed by the presentment isn’t Dickson, but rather the acquitted Holmes and Purdy. The European cases on the presumption of innocence, and public conduct in relation to them, are especially strict when it comes to state conduct suggesting that someone is guilty after they’ve been acquitted. So, there’s an argument that, in filing the new presentment in January 2008, the prosecution breached its conduct mandate in relation to Charter s. 25(1).

Conspriacy is, conveniently, a statutory crime in Victoria, so there’s something for the interpretation mandate to work on. Alternatively, an argument could be made that the conduct mandate barred the prosecutors from filing their new presentment. Either way, a major issue would be this provision:

321B It is hereby declared that the conviction of a conspirator whether tried together with or separately from another alleged conspirator or other alleged conspirators may stand notwithstanding that the other alleged conspirator or conspirators is are or may be acquitted unless in all the circumstances of the case the conviction is inconsistent with the acquittal of the other alleged conspirator or conspirators.

Have Charter ss. 25(1) & 32(1) changed the meaning of ‘inconsistent’ to something much broader, e.g. when all other alleged conspirators have been acquitted? Alternatively, does this provision provide prosecutors with Charter s. 38(2) cover when it comes to issuing presentments? And, failing that, is a declaration of inconsistent interpretation called for?

It would’ve have been nice to have seen these issues  (and some others that might arise under Charter s. 24) explored in this case. Alas, as I’ve often worried, the Victorian courts’ predisposition is to assume that their existing processes are already adequately attuned to all criminal process rights. That’s an assumption that effectively treats the Charter as if it had never been enacted.

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