In Victoria, Crimes Act s.321F
abolishes the common law offence of conspiracy but
preserves the separate common law offences of conspiracy
to cheat and defraud and conspiracy to defraud. A
statutory offence of conspiracy is defined by s.321:
(1) Subject to this Act, if a person agrees with any
other person or persons that a course of conduct shall be
pursued which will involve the commission of an offence
by one or more of the parties to the agreement, he is
guilty of the indictable offence of conspiracy to commit
that offence.
(2) For a person to be guilty under sub-section (1) of
conspiracy to commit a particular offence both he and at
least one other party to the agreement--
(a) must intend that the offence the subject of the
agreement be committed; and
(b) must intend or believe that any fact or circumstance
the existence of which is an element of the offence will
exist at the time when the conduct constituting the
offence is to take place.
Agreements to commit an offence outside Victoria are
included: s.321A; R v
Hamilton-Byrne [1995] 1 VR 129. The acquittal of an
alleged co-conspirator is inconsequential unless
inconsistent: s.321B; R v Darby[1982]
HCA 32, (1982) 148 CLR 668 and, though concerning alleged
completed offences, Osland v R[1998] HCA 75, (1998) 197 CLR 31.
The definition includes within its bounds a person who,
although agreeing to a proposed course of criminal
conduct, and having a stake in its outcome, does not
agree to participate in at least part of that conduct;
such a person will be guilty of conspiracy: Rolls v R
[2011] VSCA 40.
If the prosecution believes it has effective count for a
substantive offence then it should proceed with those
counts. If there is some real basis for doubting that the
offence had been committed there may perhaps be
justification in alleging a conspiracy. Generally
speaking, it is undesirable that conspiracy should be
charged when a substantive offence has been committed and
there is a sufficient and effective count that this
offence has been committed. Hoar v R [1981]
HCA 67, (1981) 148 CLR 32.
As to common law conspiracy to defraud under Victorian
law, see R v Walsh and Harney [1984] VR 474. As
to extra-territoriality of common law conspiracy to
defraud, see Lipohar v R
[1999] HCA 65, (1999) 200 CLR 48. The requirement of
nexus should be liberally applied; a real connection with
the jurisdiction will suffice. This seems to displace a
narrower view of extra-territoriality taken in Re
Hamilton-Byrne [1995] 1 VR 129.
For presentment of conspiracy, conspiracy to cheat and
defraud or conspiracy to defraud, the approval of the
Director of Public Prosecutions is required: s.321(4),
s.321F(4).
Another statutory offence is Drugs, Poisons and Controlled Substances Act
s.79, conspiring to traffick,
cultivate or possess. The meaning and proof of this
conspiracy comes from the common law. It is an
alternative to proceeding by the Crimes Act: R v Pepe[2000]
VSCA 208, (2000) 2 VR 412.
A leading case for common law conspiracy is Gerakiteys v R
[1984] HCA 8, (1984) 153 CLR 317. The idea is that a
conspiracy is complete at a particular instant. Others
may later join it. In Victoria, practice often is to
conceive of conspiracy as continuing from its commencing
instant to its cessation ie between specified dates
though for sentencing purposes, the culpability of the
later joiner on typical facts it seems should be largely
or entirely confined to his or her actual participation.
Others however who join to only part of the agreement
join a fresh conspiracy.
Although "overt acts" are commonly
particularised they are not themselves component elements
of the offence; they merely evidence it: R v Caldwell
[2009] VSCA 41, (2009) 22 VR 93; R v Theophanous [2003] VSCA 78, (2003) 141 A Crim R 216.
The words and acts of an alleged conspirator in
furtherance of the conspiracy in absence of another
conspirator often will be objectionable hearsay as
against that other conspirator. The co-conspirator's rule
of evidence is that, once the foundation that there was a
conspiracy is on reasonable evidence laid to the
satisfaction of the trial judge, such words and acts of
each alleged conspirator in furtherance of the conspiracy
as otherwise would be inadmissible hearsay, become
admissible: Ahern v R
[1988] HCA 39, (1988) 165 CLR 87; Tripodi v R
[1961] HCA 22, (1961) 104 CLR 1; Tsang v DPP (Cth) [2011] VSCA 336; R v Perrier[2008] VSCA 97; R v Kaladjic
[2005] VSCA 160; R v White[2003] VSCA 174. The finding of foundation is to be
on balance of probabilities and is not a matter to be
brought to the attention of the jury: R v Bacash[2001] VSCA 193, (2001) 3 VR 428; R v Atallah
[2001] VSCA 194, (2001) 3 VR 437. It follows from a
proper understanding of the hearsay objection that the
finding of foundation may have regard to evidence of the
words of those said to be participants providing regard
falls short of depending upon treating the words as
evidence of the truth of that which was asserted: Ahern;
Benbrika v R
[2010] VSCA 281. Because the rule applies only to
statements in furtherance of the agreement, it is usually
inapplicable to a mere narrative of some past event: Tripodi
at 7; R v Su [1997] 1 VR 1at 40ff. The
rule is equally applicable where the conspiracy has been
carried out and the common purpose substantive offence is
charged, as for instance in cases of Tripodi and
Bacash, and also where the alleged participation is
principal with aider and abetter: Tsang v DPP (Cth) [2011] VSCA 336.
The words and acts of an alleged conspirator in
furtherance of the conspiracy in absence of another
conspirator will not always be hearsay. Hearsay applies
against leading such evidence for the purpose of proving
its truth. Thus without resort to the co-conspirator's
rule of evidence, it is permissible to use the acts and
declarations of each, even in the absence of the other,
not as proof of the truth of any assertion or implied
assertion of the participation of the other, but for
example as facts from which the combination might be
inferred, or they may be circumstantial evidence which,
along with other evidence, is relevant:: R & the A-G of the Cth v Associated
Northern Collieries [1911]
HCA 73, (1911) 14 CLR 387; see also Ahern; Bacash;
Tsang v DPP (Cth) [2011] VSCA 336; R v Mbonu
[2003] VSCA 52, (2003) 7 VR 273.
For federal offences, Criminal Code s.11.5; R v Ong
[2007] VSCA 206, (2007) 176 A Crim R 366.
> Drugs
version
9 January 2012
Statutory indictable offences under the
Victorian Drugs, Poisons and Controlled Substances Act include drugs of dependence s.71-71C
trafficking offences, s.72-72B cultivation offences, s.73
possession, s.75 use and s.79 conspiring. There is a long
list of "drugs of dependence": see s.4 and
Schedule 11 which includes in Part 2 cannabis L (commonly
known as marihuana or marijuana) and in Part 3 cocaine,
diacetylmorphine (heroin), methylamphetamine (commonly
known as speed), MDMA (commonly known as ecstasy) and
tetrahydrocannabinol (or THC, the hallucogenic component
of cannabis typically relied upon to allege hashish).
Most of the offences are defined to require intent or
knowledge of the nature of the substance though this
usually means of the legal class of the drug in general
terms rather than of which particular drug it is: Saad v R
[1987] HCA 14, (1987) 61 ALJR 243; DPP Reference No 1 of 2004 [2005] VSCA 172, (2005) 12 VR 299.
For Victoria, the commercial quantities and large
commercial quantities are defined by weight of a
particular drug or combination of drugs; for cannabis
also by number of plants: schedule 11 Parts 2 and 3.
"Cannabis" means a plant or any part of a plant
of the genus Cannabis L, whether fresh or dried: Drugs, Poisons and Controlled Substances Act s.71 (2); R v Kardogeros [1991] 1 VR
269. For the purpose of counting plants to apply the
commercial quantity and large commercial quantity
definitions, "plant" has its ordinary sense
rather than any technical scientific or botanical sense
so that expert scientific evidence on the point is
inadmissible; "plant" includes a cutting which
has struck or established roots, it also includes a dead
plant: R v Francis-Wright [2005] VSCA 79, (2005) 11 VR 354. For Victorian
commercial quantity and large commercial quantity
offences, it is for prosecution to show that the accused
had knowledge of the nature of the substance and of the
quantity of the substance at the time of the commission
of the offence: R v Reed[2008]
VSCA 20;R v Callaghan[2007] VSCA 135; R v Garlick
[2006] VSCA 127, R v Bui
[2005] VSCA 300; DPP Reference No 1 of 2004
above. With cultivating cannabis, if a jury is satisfied
beyond reasonable doubt that the accused knew there was a
real and significant chance that he or she was
cultivating the commercial (or large commercial)
quantity, it is open to the jury to infer the requisite
intention: R v McKittrick
[2008] VSCA 69; R v Page[2008]
VSCA 54.
As to trafficking, Drugs, Poisons and Controlled
Substance Act section 70 provides
"traffick" in relation to
a drug of dependence includes--
(a) prepare a drug of dependence for trafficking;
(b) manufacture a drug of dependence; or
(c) sell, exchange, agree to sell, offer for sale or have
in possession for sale, a drug of dependence.
This is an inclusive meaning of trafficking. As to any
wider meaning, cases which (though considering earlier
legislation) generally regarded as applicable are R v
Holman [1982] VR 471 at 475-6 (requires at least
activity in a commercial setting, that is to say a
setting in which it can be fairly inferred that someone
involved is making a profit, participation in the
progress of goods from source to consumer and movement of
the goods between source and consumer, consumer meaning
another person with whom in contact for the purpose of
transferring ownership or possession or for taking any
step directed to those ends); also R v Elem [1982]
VR 295; Falconer v Pedersen [1974] VR 185. The
s.70 notion of "possession for sale" is
considered in R v Bandiera
[1999] VSCA 187, [1999] 3 VR 10 and R v Kardogeros
[1991] VR 269. The trafficking may be of a continuing
kind typically known as a "Giretti" count or
charge: R v Giretti (1986) 24 A Crim R 112; R v Komljenovic [2006] VSCA 136; R v Lao and Nguyen[2002] VSCA 157; (2002) 5 VR 129.
Continuing offences of commercial quantity and large
commercial quantity type may rely on the aggregate amount
to establish the required quantity but the element of
intent as to commercial quantity or large commercial
quantity must exist from the commencement of the action: Mustica v R[2011] VSCA 79; R v McCulloch
[2009] VSCA 34, (2009) 21 VR 340.
Generally on the concept of possession, see R v Tran
[2007] VSCA 164.
If on a s.71 trafficking charge, the prosecution is
relying on the “possession for sale” form of
trafficking, it is only the saleable weight or number of
plants which counts as to the act and intent of the
accused: R v Nguyen[2006] VSCA 158; R v Francis-Wright [2005] VSCA 79, (2005) 11 VR 354; R v Coviello
[1995] VICSC 173, (1995) 81 A Crim R 293.
Proof is aided by "deeming provisions" based on
possession, 70 "traffickable quantity" and
73(2). However proof is not aided by s.5 occupation of
premises: Momcilovic v R
[2011] HCA 34.
Possession of information and accoutrements of trade as
circumstantial proof: see site Notes
1. With drugs, of
possession of substance, material, documents or equipment
for trafficking: is also an offence of itself: Drugs, Poisons and Controlled Substances Act
s.71A.
For supply to a child: s.71B.
Proof of the nature of substances may be by analyst's or
botanist's certificate under Drugs, Poisons and Controlled Substances Act
s.120. It may also be by
evidence of admission if the admitter is shown to have
sufficient general knowledge of the substance: Anglim
and Cooke v Thomas [1974] VR 363. These are not
exhaustive of the methods for this proof.
> Fraud, theft, handling,
burglary
version
17 February 2011
Fraud
Criminal fraud is a general term used by investigators,
lawyers and others for numerous criminal offences each
separately defined mainly to do with obtaining by
deception goods, monies, financial advantages etc. The
main offences are referred to below.
Obtain property by deception. Crimes Act s.81and
obtain financial advantage by deceptionCrimes Act s.82.
Dishonesty: R v Todo
[2004] VSCA 177; R v Walsh[2002] VSCA 98; R v Salvo [1980] VR 401; R
v Brow [1981] VR 783; R v Bonollo [1981] VR
783. Must be causal connection between the deception used
and the pecuniary advantage obtained though person
deceived and person obtained from need not be same: R
v Clarkson [1987] VR 962. Mental element can be
deliberate or reckless: Crimes Act s.81(4): 82(2). Most
obtain property by deception can alternatively be charged
as theft: R v Baruday [1984] VR 685. For
deception of corporations, the person deceived does not
have to be a natural person; it can be the corporation as
distinct legal entity: Macleod v R
[2003] HCA 24, (2003) 77 ALJR 104. It is though usually
sufficient if the person deceived is a natural person who
in the circumstances is acting within the scope of that
person's employment with the corporation; but a person
who is party to the fraud could not stand as the
corporation in this sense or at all: R v Jenkins[2002] VSCA 224, (2002) 6 VR 81. Cheques: Parsons v R[1999] HCA 1, (1999) 195 CLR 619. Representation by
conduct: Crimes Act ss.81(4), 82(2); R v Benli [1998]
2 VR 157. Statements as to future events only amount to
deception if they mis-state present intention: R v Lo Presti[2005] VSCA 259. Extra-territoriality: R v Keech[2002] VSCA 103. Meaning of financial advantage
includes paying a debt by giving the creditor a worthless
cheque: R v Vasic
[2005] VSCA 38. It can in appropriate case be charged as
a single continuous offence: DPP v Stark
[2006] VSCA 61. Where two or more false representations
are laid in one count, it is sufficient to convict if the
jury is unanimously satisfied as to any one of them: R v Holmes
[2006] VSCA 73; R v Kuff [1962] VR 578. False accounting.Crimes Act s.83(1). To
determine whether a document is required for any
accounting purpose, evidence would be expected both of
the connection of the documents with the relevant
accounts and also as to their requirement for that
purposes: R v Heinze [2005]
VSCA 124, (2005) 153 A Crim R 380. A merely prudential
purpose not enough: R v Jenkins[2002] VSCA 224, (2002) 6 VR 81. Make & use false document.Crimes Act s.83A; R v O'Hara[2005] VSCA 62;R v Gatzka[2004] VSCA 121; R v Ceylan[2002] VSCA 53, (2002) 4 VR 208. Accident compensation fraud offences.
Motor vehicle accident and WorkCover. Accident Compensation Act Barristers & solicitors. Legal Profession Act,
trust account and other offences. Estate Agents.Estate Agents Act,
trust account (ss.90 & 91) and other offences.
Theft
Crimes Act Part 1
Division 2. The common law term "larceny" is
replaced by "theft". Crimes Act s.72.
"A person steals if he dishonestly appropriates
property belonging to another with the intention of
permanently depriving the other of it."
Dishonesty: R v Senese[2004] VSCA 136; R v Salvo [1980] VR 401; R
v Brow [1981] VR 783; R v Bonollo [1981] VR
783.
Appropriation. Crimes Act s.73(4).
Requires an adverse interference with or usurpation of
some right of the owner: R v Roffel [1985] VR
511. Sufficient that it is of any of the rights of the
owner: Stein v Henshall [1976] VR 612; W v
Woodrow [1988] VR 358. Includes where there has been
consent of owner as result of fraud: R v Baruday [1984]
VR 685. By majority in Roffel, a taking of
possession of property consensual in the true sense is
not appropriation; compare as so with former common law: Croton v R
[1967] HCA 48, (1967) 117 CLR 326
Property. Where prosecution can allege only that a part
of an assortment or bulk was stolen and, except perhaps
in quite vague terms, cannot particularise which parts or
even what proportion, seems a submission that "it is
not necessary that the precise objects stolen be
identifiable" can be built from the reasoning and
cases in Williams and Weinberg Property Offences (2nd
ed) pp.15-16. Though concerned with property at common
law, there seems nothing in the Crimes Act provisions to
displace the presumption that at this point they follow
the common law. Note though that unlike with some
legislation elsewhere, the Crimes Act lacks provision
making proof of "general deficiency" at this
point enough.
Property belonging to another. Crimes Act s.71, s.73. Not necessary to
prove who the other is: Lodge v Lawton [1978] VR
112.
On meaning of s.73(12): R v Dardovska
[2003] VSCA 4, (2003) 6 VR 628.
Theft can in appropriate case be charged as a single
continuous offence: DPP v Stark
[2006] VSCA 61.
The doctrine of recent possession involves a process of
inferential reasoning as to guilt. It identifies the
prominent inference that may arise from circumstantial
evidence, where it is established that the accused is in
possession of recently stolen property and offers no
explanation or one which the jury is able to reject
beyond reasonable doubt; but there must be proof that the
goods were recently stolen before an inference can
possibly arise: R v Trifilo
[2009] VSCA 194; Trainer v R
[1906] HCA 50, (1906) 4 CLR 126; Bruce v R[1987]
HCA 40, (1987) 61 ALJR 603; R v Nguyen (1992) 60 A
Crim R 196; R v Beljajev [1984] VR 657.
Handling
Crimes Act s.88(1). A
person handles stolen goods if (otherwise than in the
course of the stealing) knowing or believing them to be
stolen goods he dishonestly receives the goods or brings
them into Victoria, or dishonestly undertakes or assists
in bringing them into Victoria or in their retention,
removal, disposal or realization by or for the benefit of
another person, or if he arranges to do so.
It has been generally thought that the receiving form is
a separate offence but the other forms may be put
together.
Goods may be handled as a group in a manner that
constitutes a single offence and avoids the latent
ambiguity objection.
Theft and handling in alternative:Crimes Act s.88A.
Burglary
Crimes Act s.76,
aggravated s.77; Barker v R
[1983] HCA 18, (1983) CLR 338; R v Lambourn
[2007] VSCA 187; R v Munro
[2006] VSCA 94; R v Spero
[2006] VSCA 58, (2006) 13 VR 22; R v Taylor[2004] VSCA 189, (2004) 10 VR 19. Conditional
intention, ie to steal property or assault a person who
may be present, is sufficient: R v Verde
[2009] VSCA 16. On the trespass element: R v Chimirri[2010] VSCA 57. For aggravated burglary, need for
jury unanimity as to circumstance of aggravation,
including where prosecution advances multiple
circumstances: R v Secomb
[2010] VSCA 58. "Offensive weapon" for
aggravated burglary: DPP v Woodward
[2006] VSC 299.
Perjury. Need for
corroboration:R v Holmes[2008]
VSCA 128; R v Townley (1985) 24 A Crim R 76; Evidence Act s.164.
For an alleged in-court perjury, evidence of the
testimony from a person present is sufficient: R v
Rowley (1825) Ry & Mood 299, 171 ER 1027; R v
Munton (1829) 3 Car & P 498, 172 ER 519.
Suborning perjury: R v Ritchie
[2005] VSCA 166.