.. /

R v IDOLO CATALANO

Supreme Court of the Northern Territory of Australia Kearney J
11 and 14 February 1992, at Darwin

APPEAL	-	'common	form'	appeal inconsistent	guilty		verdict	is Criminal Code, s.411(1)

provision unreasonable

whether	an or	unsafe		-

CRIMINAL LAW - conspiracy - gist of offence - need to prove agreement of accused and co-conspirators

CRIMINAL LAW - conspiracy rule	where	joint	trial Darby - nature and effect

- former common redirection
of an acquittal

law single-verdict of	common	law	in

CRIMINAL LAW - inconsistent verdicts - where accused on different charges before same jury - where accused on different charges before different juries - wher a different accused tried for same offence before a different jury - principles applicable
CRIMINAL LAW - inconsistent verdicts - test of inconsistency
-	whether	inconsistent	guilty	verdict	must	be	quashed	- principles applicable - rationale for quashing

CRIMINAL	LAW			-	abuse	of	process	-	conspiracy		trial substantially		same	evidence		on	common		element	in			earlier trial	where	co-conspirators· acquitted	-	whether	power	to stay - circumstances in which power properly exercised
at commencement of trial
PRACTICE	AND	PROCEDURE -	conspiracy	trial -		substantially the same evidence on common element •in earlier trial where co-conspirators	acquitted		-	whether		abuse	of	process whether power to stay trial - circumstances in which power properly exercised at commencement of trial
STATUTORY	INTERPRETATION	-	whether	Code	affects	Darby
proviso - Criminal Code, para.292(d)

Cases applied:
R v Darby (1981-82) 148 CLR 668

Cases followed:

Barton v The Queen (1980) 147 CLR 75 D.P.P. v Shannon (1975] AC 717 (H.L.)
King v The Queen (1986) 161 CLR 423

Cases referred to:

Bank of England v Vagliano Brothers [1891] AC 107 Chamberlain v The Queen (No.2) {1983-84) 153 CLR 521
Connelly v D.P.P. [1964] AC 1254
Dharmasena v The King [1951] A.C. 1 (P.C.)
D.P.P. v Humphrys [1977] A.C.1
Marsh v Vauhan [1599] Cro. Eliz. 701; 78 E.R. 937
Mickelberg v The Queen {1988-89) 167 CLR 259
Poulterer's Case (1610) 9 Co.Rep. 55b; 77 ER 813
R v Andrews-Weatherfoil Ltd [1972] 1 WLR 118
R v Brown [1990] V.R. 820
R v Cwmbran Justices; exp.Pope {1979) 143 J.P. 638
R v Drury (1971) 56 Cr.App.R. 104
R v Hunt [1968] 2 Q.B. 433
R v Hurrey {1987) 29 A.Crim.R. 42
R v Intervision Ltd and Norris [1984] Crim.L.R. 350 R v Jones (1985) 20 A.Crim.R. 142
R v Lewis (1960) Crim.L.R. 435
R v Longmann and Cribben (1981) 72 Cr.App.R. 121
R v Merrick {1980) 71 Cr.App.R. 130

•

R v Mok (1987) 27 A.Crim.R. 438
R v Orton [1922] VLR 469
R v Warner (1966) 50 cr.App.R. 291

Counsel for the Crown: Solicitor for the Crown:

Counsel for the accused:

J.W.M. Adams Director	of Prosecutions
D.F. Hore-Lacy

Public

Solicitor for the accused:	T.S. Lee & Associates

kea92013
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. sec No. 164 of 1988

BETWEEN:

THE QUEEN

AND:
IDOLO CATALANO
•

CORAM:	KEARNEY J

REASONS FOR RULING
(Delivered 14 February, 1992)

The application of 11 February 1992

The accused has stood his trial over 3 days on a charge of conspiring with 2 named co-conspirators to commit the crime of producing cannabis.	These 2 co-conspirators were acquitted of participation in this conspiracy, by direction, at their trial in 1989.		At that time the accused did not answer to his bail and could not be located; hence his separate trial, alone.

'

[His Honour referred to the application at the commencement of the trial for a permanent stay, and continued:]

Mr Hore-Lacy founded his application on the fact that on 4 July 1989 the two persons named as the accused's co-conspirators in this Indictment had been found not guilty "under an identical Indictment".	In his submission, it was "vexatious" or an abuse of process for the accused now to be placed in jeopardy of being found "guilty of conspiring with people who have been found not guilty on identical evidence and on an identical Indictment."		He submitted that it v!as an	abuse of process for the Crown to seek to invite the jury in this trial to come to a different conclusion than that reached by the jury in the earlier trial, on identical evidence as regards the participation of those
co-conspirators in the conspiracy, an essential element in the Crown case against the accused.

It can be seen that at the root of this submission was the contention that a verdict of guilty would necessarily be inconsistent with the verdicts of acquittal reached by the earlier jury, on identical evidence.

After hearing argument I refused the application, for reasons to be stated when the trial ended.		The accused was found not guilty yesterday, by direction.	I now publish the reasons for the ruling of 11 February.	I deal first

with the case-law on the general effect of differing verdicts.

The law

/a}	Generally, as to the effect of inconsistent verdicts

At common law, if a jury's verdicts on separate offences charged in the one indictment are inconsistent, the

judgments which flow from them can be quashed.

In R v Le•wi• s

(1960) Crim. L.R. 435, for example, the defendant relied on identical defences to the two charges against him.	He was acquitted on one charge and convicted on the other.		The jury had accepted his defence in the first charge, but rejected it in the other.	The conviction was quashed on the ground that these verdicts were _inconsistent.

In R v Drury (1971) 56 er. App. R 104 the Court of Appeal said that there is no general rule that a conviction must be quashed because the verdicts on the counts in an indictment are inconsistent.	In that case the appellant lorry driver was acquitted of stealing certain oranges which he had for delivery, but he was convicted on deception charges arising out of his sale of those oranges.	There was
an abundance of evidence on the deception charges, to warrant those convictions.	The Court quashed the

convictions in this "most puzzling case" because the difference in the verdicts on counts which had a common ingredient of dishonesty was "wholly incomprehensible".	The court however said at p.105:-

"There are cases which - - can arise when it would be proper for this Court to say that, notwithstanding the inconsistency, the convictions
must stand.	It all depends upon the facts of the case."

In the "common form" language of s.411(1) of the criminal Code, an inconsistent verdict of·guilty may be set

aside as "unreasonable".

The Court of Appeal explai• ned

the

rationale, in R v Hunt (1968] 2 QB 433 at p.438:-

"- - - the court has been referred to a great number of cases dealing with apparently inconsistent verdicts, in some of which the verdict has been upheld and in others in which it has been quashed.	They are, of course, by their very nature cases in which the two counts being compared and which are said to be inconsistent are closely linked either. on the facts or by reason of motive or in regard to the nature of the defences, but the principle, as it seems to this court, in every case is whether the inconsistency is such that it would not be safe to allow the verdict, which prima facie is entirely a proper verdict, to stand.

There is a useful passage in regard to the approach that the court should make which was given by Devlin J. in the unreported case of Reg. v Stone (December 13, 1954, C.C.A.).	Devlin J. there said, at page 3 of the transcript:

"When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him.	He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are

an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.	But the burden is upon the defence to establish t hat." 11
( emphasis mine)

In other words, a court of appeal must be satisfied that the guilty verdict said to be inconsistent involves a conclusion so contradictory to a conclusion which the jury must have reached in arriving at its other verdict, that no reasonable jury could have so concluded.	The jury and its verdicts were, in the result, unreasonable.	It would accordingly be unsafe to rely on anything the jury had decided.	It may be noted in passing that the "common form" language of s.411(1) of the Code encompasses the setting aside of verdicts (such as an inconsistent verdict) which are unsafe or unsatisfactory; see Chamberlain v The Queen (No.2) (1983-84) 153 CLR 521, at pp.530-4.

Similar rules as to inconsistent verdicts apply where an accused is tried on separate charges before different juries, though in this case neither jury is
self-contradictory or unreasonable.	In R v Warner (1966) 50 er. App. R. 291 the charges separately tried were the taking and driving away of a motor vehicle, and driving whilst disqualified.	One jury convicted the defendant on the first charge; the other jury acquitted him on the second.	The essential prosecution evidence in both cases was the same; the question was whether identification evidence by an eyewitness was to be accepted.	The Court of Appeal quashed

the conviction, apparently on the basis that these were inconsistent verdicts in cases where the prosecution evidence was the same.	No underlying rationale for doing so was articulated.

Similar rules apply where there are different defendants and different juries, a situation akin to the
present case.	In R v Andrews-Weatherfoil Ltd. [1972] 1 WLR
118 s,	a member of a local authority, was charged with corruptly receiving certain money.	X was charged with corruptly offering those monies to S.	S was convicted.

X was later tried and acquitted.

S appealed on the groun•d

that his conviction was unsafe because it was inconsistent with X's acquittal.	The Court of Appeal dismissed his appeal, saying at pp.125-6:-

"As long as it is possible for persons concerned in a single offence to be tried separately, it is inevitable that the verdicts returned by the two juries will on occasion appear to be inconsistent with one another.	Such a result may be due to differences in the evidence presented at the two trials or simply to the different views which the juries separately take of the witnesses.	That the result produced by such inconsistency is "unsatisfactory" cannot be disputed but it is the unsatisfactory character of the guilty verdict to which section 13 of the Criminal Appeal Act 1968 [and s.411(1) of the Code] is directed, rather than an unsatisfactory result of the two trials as a whole.	When inconsistent	verdicts are returned by the same jury, the position is usually more simple.	If the inconsistency shows that that single jury was confused, or self contradictory, its conclusions are unsatisfactory or unsafe and neither verdict is reliable.		Very often, however, an apparent inconsistency reflects no more than the jury's strict adherence to the judge's direction that they must consider each case separately and that evidence against one may

'

not be admissible against the other: for example, where there is a signed confession.	So too, where the verdicts are returned by different juries the inconsistency does not, of itself, indicate that the jury which returned the verdict was confused or misled or reached an incorrect conclusion on the evidence before it.		The verdict "not guilty" includes "not proven."	We do not therefore accept Mr Hazan's submission that inconsistent verdicts from different juries ipso facto renders the guilty verdict unsafe."

Because of the nature of the crime of conspiracy there were certain special applications of the inconsistent verdict rule in trials for conspiracy.	I turn to that
aspect.
•

ru	The former position at common law, as :to conspiracy: the single-verdict rule

For at least 350 years since Marsh v Vauhan [1599] ere.Eliz. 701; 78 E.R. 937 the law as to the effect of differing jury verdicts in the trial of two co-conspirators was clear and consistent.	In that case A and B, indicted for conspiracy, pleaded not guilty; A was found guilty, B not guilty.	The Kings Bench held that:-

11

-	-	the bill should abate; for it ought to be against two, and the one cannot conspire alone; and the one being acquitted, the other sole cannot be attainted.11

[His Honour then discussed Dharmasena v The King
[1951] A.C.1.(P.C.) and continued:]

This restated the long-established single-verdict rule of the common law, where there had been a joint trial of 2 co-conspirators, one of whom was convicted and the other acquitted.		The common law rule was as usual rooted in the interstices of its formalistic procedures.	When a verdict was reviewed by writ of error, only errors on the face of the record could be corrected.	An error could  be said to appear if the record showed that A had been found guilty while B had been acquitted of an offence the gist of which was their criminal agreement.		The reasoning was straightforward.	In a joint trial for conspiracy, A is acquitted and B convicted.		For A to be convicted, the jury must have been satisfied  beyond reasonable doubt that Band A had conspired together.	For B to be acquitted in that trial, that same jury must have had a doubt whether they had conspired together.		Such verdicts were therefore viewed as inconsistent: if the jury doubted the existence of the conspiracy, as its verdict in relation to B disclosed, how could it properly find A guilty?	Hence the reference in Dharmasena to "the only possible verdict" in a joint trial; see [1951) A.C. 1 at p.6.

In this approach attention is focussed exclusively on the nature of the offence of conspiracy; no account is taken of the nature of the trial.	A joint trial in its essence is a separate trial of each of 2 accused, heard together, in which the jury is instructed to consider in the

case of each accused only the evidence admissible against him.	The relevant admissible evidence against each accused may differ widely; one, for example, may have confessed to conspiring with the other.	From this perspective, a jury faithfully following such an instruction and thereby convicting A and acquitting B has not necessarily returned inconsistent verdicts.

It may be noted that it appears to follow from the common law rationale that if A and B were indicted separately and tried separately no error would appear in the respective records if the verdicts differed; but compare the observations of the Court of Appeal in D.P.P. v Shannon [1975] AC 717 at p.722.

It can also be seen that the decision in Dharmasena is rooted in the fact that there had initially been.a joint trial of D and s. Even though, following appeal, the case involved differing verdicts as between D and S flowing from separate trials involving different juries, their Lordships clearly thought that after their joint trial there should not have been separate trials at all, and the two should have been "sent at the same time for retrial".	Although the conclusion - that D should now be acquitted simply because Shad since been acquitted -  appears impliedly to	extend the joint trial single-verdict rule to the case of separate trials, it is clear, I think, that their Lordships made this order to remedy a situation

(following a joint trial) which in their view should never have occurred.

[His Honour then discussed the decisions of the Court of Appeal and the House of Lords in D.P.P. v Shannon [1975] AC 717, dealing with differing verdicts returned against co-conspirators tried separately, and continued:]

(d)	The current position in the United Kingdom

After the decision in Shannon the Criminal Law•Act 1977 (U.K.) was enacted.	This Act largely abolished the offence of conspiracy at common law and introduced a statutory offence of conspiracy.	Subsections (8) and (9) of s.5, provisions declaratory of the common law since what was there stated was probably implicit in Shannon, made it clear that the former practice of automatically quashing the conviction of one conspirator where the only other alleged

conspirator was later acquitted, no longer applied. provided:-

They

11(8)	The fact that the person or persons who, so far as appears from the indictment on which any person has been convicted of conspiracy, were the only other parties to the agreement on which his conviction was based have been acquitted of conspiracy by reference to that agreement (whether after being tried with the person convicted or separately) shall not be a ground for quashing his conviction unless under all the circumstances of the case his conviction is inconsistent with the acquittal of the other person or persons in question.

(9)	Any rule of law or practice inconsistent with the provisions of subsection (8) above is hereby abolished."	(emphasis mine)

These provisions are identical with those recommended by the Law Commission in the draft Bill annexed to its Report on Conspiracy and Criminal Law Reform (Law.
Com. No.76, 1976).	It can be seen that s.5(8) is specifically directed to the appellate situation, not the trial; further, it applies to differing verdicts whether in a joint trial or in separate trials.	By corollary, the words emphasized have an effect on the powers of a trial judge: if in a joint trial there is a serious risk that• different verdicts against the co-accused would be inconsistent, because the evidence against both of them is similar, the trial judge may still direct the jury that they should either acquit both or convict both; see generally R v Longmann and Cribben (1981) 72 er. App. R. 121 and R v Merrick and ors (1980) 71 er. App. R. 130.	There is, however, no authority which suggests that these words, by corollary, have an effect on the powers of the trial judge in the separate trial of a conspirator following an earlier acquittal of the other alleged conspirators, or the practice which should then be adopted.

(e)	R v Darby /1981-82) 148 CLR 668

In Darby	D and T were jointly tried and convicted of conspiring together to rob.	On appeal, T's conviction

was quashed and judgment of acquittal was entered, on the basis that the evidence admissible against him fell short of establishing what the crime was which he had conspired with D to commit.	The Crown case was stronger against D, in that respect: he had confessed to conspiring to rob.	D successfully appealed on the sole ground that T's subsequent acquittal necessitated his own acquittal; the Victorian Court of Criminal Appeal applied Dharmasena.	The Crown however succeeded in its appeal to the High Court, where the majority (4-1) held:-

"The conviction of a conspirator, whether trie together with an alleged co-conspirator or separately, may stand notwithstanding that the latter is acquitted or his conviction is quashed on appeal unless in all the circumstances the conviction is inconsistent with the acquittal of the other person." (emphasis mine)

This is directed to the appellate situation.	It will be noted that the words emphasized closely follow the proviso in s.5(8) of the Criminal Appeal Act 1977 (U.K.).	Darby now states the common law in Australia on the effect of differing verdicts against two co-conspirators, whether their trials be joint or separate.

The majority noted that in Shannon the rule in Dharmasena - that the subsequent acquittal of A warrants the setting aside of the conviction of co-conspirator B - was disapproved of where A and B had been tried separately, but that their Lordships had expressed differing views as to its

retention where A and B had been jointly tried (as in
Darby).	On this aspect their Honours said at pp.676-7:-

"- - - counsel for the respondent also relies on the nature in law of the offence of conspiracy
- - -. 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 Bis		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 (1975] A.C., at p.772:

11 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 1 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. - - - 11
(emphasis mine)

It can be seen that the argument that "B has been declared [by his acquittal] to be innocent of conspiring with A",

must be rejected to overcome the "fundamental inconsistency" in the verdicts which "innocence" connotes.

It is convenient at this point to consider whether
s.5 of the Criminal Code has any impact on the effect of an acquittal as stated in Darby.	[His Honour discussed this question, concluded that s.5 had no impact, discussed other effects of an acquittal, and continued:)

As to the conceptual difficulties in a joint trial of 2 conspirators where the same jury find A guilty and B
not guilty, their Honours said at p.677:-	•

"- - the apparent phenomenon is readily explained in terms of the obligation of the jury to consider separately the guilt of the two accused on the basis only of the evidence admissible against each."

Their Honours noted nevertheless the patent incongruity of a trial judge directing the jury in these terms, while at the same time telling them "that they must either convict them both or acquit them both".	To avoid this, they suggested at p.678 that there should be separate trials "in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other."	They added at p.678:-

"In cases where there is no material distinction in the evidence admissible against both alleged conspirators, the trial judge's advice to the jury that they will either convict or acquit both

accused will continue to be appropriate not because of any technical rule but because of the circumstances of the case - - - "

Their Honours concluded at p.678:-

"In the light of the wealth of both academic and judicial consideration that has been devoted to this topic in recent years, we have no doubt that this Court should now redirect the common law of Australia on to its true course.	It should determine that the conviction of a conspirator whether tried together with or separately from an alleged co-conspirator may stand notwithstanding that the latter is or may be acquitted unless in all the circumstances of the case his conviction is inconsistent with the acquittal of the other person.	In our opinion such -a determination will focus upon the.justice of the case rather than' upon the technical obscurities that now confound the subject."	(emphasis mine)

It can be seen that the common law in Australia on differing verdicts in conspiracy cases has moved from a universal rule requiring a single verdict to a position where the evidence against each accused is assessed to determine whether the differing verdicts were in fact inconsistent "in all the circumstances".	The law has moved from a fixed rule to a rule based on "the justice of the case."	The question is whether the evidence in the case of one conspirator is "significantly different" or involves a "material distinction" from that in the other.

The submissions

w	" Substantially the same" evidence and inconsistent verdicts.

There is an inconsistency in verdicts where the acquittal of one conspirator and the conviction of the other are to be accounted for only by different findings by the jury or juries as to a common element, in respect of which there is no material distinction, no significant difference, in the evidence admissible against each accused; see King v The Queen (1986) 161 CLR 423.	A verdict that Bis	guilty, which is inconsistent in that sense with a verdict that A is not guilty, is one which is unsafe and which involves a miscarriage of justice, in terms of s.411(1) of the Code, as pointed out at pp. 4-5; see, for example, R v Jones (1985) 20 A. Crim. R. 142 at pp.147-8, 150, and R v Hurrey (1987)
29 A Crim R 42 at pp.44-5.

[His Honour discussed Mr Hore-Lacy's submissions, and continued:)	Stripped to its essentials his argument was: the co-conspirators were acquitted for lack of proof that they conspired with the accused; that matter must be proved against the accused if he is to be convicted; the evidence against him on that matter is not materially distinct from the evidence in the earlier trial; therefore the Darby proviso applies, and a conviction of the accused

would be quashed; therefore the trial should now be stayed as an abuse of process.

The possible effect of s.292 of the Criminal Code on the Darby proviso

It is clear from Darby that at common law the accused cannot properly be convicted if his conviction would be inconsistent with the co-conspirators' acquittal.	That would also be the position in Victoria, for example, where s.321B of the Crimes (Conspiracy and Incitement) Act 1984 is declaratory of the common law as stated in Darby, in terms similar to s.5(8) of the Criminal Law Act 1977 (U.K.), viz:-

11 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." (emphasis mine).

However, there is no similarly-worded provision in the criminal Code.	Section 292 of the Code provides:-

"292.	It shall not be a defence to a charge of conspiracy that the person with whom the accused is alleged to have conspired -
has not been prosecuted;

has been convicted of a different offence;
is not amenable to justice;
has been acquitted; or
lacked the capacity to commit an offence."

Despite the fact that s.292 is apparently directed to the trial situation - the terminology is "It shall not be a defence - - -" it may be that s.292(d) is directed to the same object as the Victorian and U.K. statutory provisions, namely, the consequences for an accused's conviction of the acquittal of his co-conspirators.

What then may be significant is that s.292 does•
not include the Darby proviso which appears, for example, in the Victorian and U.K. statutory provisions.	The Code is an exhaustive statement of the law with which it deals; see s.5 of the Criminal Code Act.		On the proper approach to the construction of a Code, as set out in Bank of England v Vagliano Brothers [1891] AC 107, it would appear that the Darby proviso cannot be read into s.292.	Consequently, under s.292 of the Code it is arguable that A may be properly convicted though B was acquitted of the same conspiracy on evidence which is not materially distinct from that adduced against A.	On this view, s.292 contemplates that A's conviction will stand even if it is in truth inconsistent with B's acquittal.	If this analysis of s.292 is correct, the whole foundation of Mr Hore-Lacy's submission (that inconsistent verdicts of this type cannot stand) collapses.

The other view, preferable in my opinion, is that the powers of the Court of Criminal Appeal under s.411(1) of the Code are not affected by s.292(d).	That is to say, s.292(d) is directed only to ensuring for this jurisdiction the abolition of the former automatic common law single- verdict rule.	This was in fact unnecessary, as that rule had ceased to apply since the decision in Darby on 18 May 1982; the Code came into force on 1 January 1984.	It is unnecessary to express a concluded view on the effect of s.292(d) of the Code, in view of the approach which I take to Mr Hore-Lacy's application.	It may, however, be thought desirable by the legislature to consider re-casting s.292, to avoid any possibility of the administration of criminal justice being drawn into disrepute, by verdicts which are inconsistent in the Darby sense being permitted to co-exist.

/cl	The need to prove the agreement and the parties to it

It is and has always been fundamental to the crime of conspiracy that one person alone cannot commit that crime; as was graphically put in R v Brown [1990] VR 820 at p.825, it is an offence in which it takes "two to tango." For over 350 years the gist of conspiracy, the "nub" of the offence, has been the agreement itself, without more; see
the Poulterer's Case (1610) 9 Co. Rep. 55b; 77 ER 813.

The Crown must therefore prove against an accused conspirator the existence of the criminal agreement, and the parties to that agreement, as laid in the Indictment.	That is to say, the accused cannot be convicted unless the Crown proves in this trial that both named co-conspirators were parties to that agreement, with him.	In a sense, the Crown in this trial must prove against the accused the 'guilt' of those 2 co-conspirators, if the accused is to be convicted. In that connection, Darby shows that the mere fact that both those co-conspirators have already been acquitted of taking part in the conspiracy the subject of this trial, does not establish for the purposes of this trial that they are • innocent.	Indeed, the record of their acquittal is not admissible in evidence in this trial; see the High Court in Darby, at p.677, endorsing Lord Salmon's views in Shannon.

[His Honour then discussed the evidence and submissions in the earlier trial, the evidence said by the accused to be adduced at this trial, and the Crown submissions, and continued:]

Mr Adams submitted that in the present trial there would be evidence adduced against the accused of the participation of the 3 in the conspiracy, which the Crown had been unable to adduce in the earlier trial; that is to say, there would be additional evidence against this accused which would prove his participation and that of the 2
co-conspirators in the conspiracy.

I should add that Mr Adams also appeared to submit at one point that the Crown did not have to prove in this trial that the 2 co-conspirators were part of the conspiracy alleged.			That aberrant view has received some support in the past; see, for example, the article "Mens rea in Conspiracy" by G.H.L. Fridman (1956) 19 M.L.R. 276.	But it is not the law, and never has been; see Lord Morris' observations in Shannon at pp.748-9 and also the discussion at p.20.		The Crown must prove against the accused in this trial the participation of the co-conspirators in the conspiracy alleged, as a crucial element in its proof of the charge.	A conspiracy in its essence consists of nothing• more than the articulation of a common intention by making an agreement; it must be proved against the accused that his mind came together with the minds of the 2 conspirators in an agreement to produce cannabis.	That is, it must be proved against the accused that there were 3 jointly resolved minds, that there was a "conscious understanding of a common design" on the part of each of them, as it was put in R v Orton [1922] VLR 469 at p.473.	However, I may have misunderstood this aspect of Mr Adams' submission.

[His Honour discussed the Crown submissions further, and continued:]

What was apparent was that Mr Adams did not clearly concede that the evidence in this trial as to the

participation of the co-conspirators would be substantially the same as in the earlier trial.

 _{_gJ_		Conclusions

Against this background, I am not prepared at this stage to order that the trial be stayed.	This is not a case where it is clearly conceded by the Crown that the evidence to be adduced in this trial as to an element of the offence charged will be substantially the same as in the previous trial.	The point at issue concerns the evidence against the accused of the agreement between the 3 of them.	I bear in mind what was said in Mickelberg v The Queen
(1988-89) 167 CLR 259 at p.310, per Toohey and Gaudron JJ:-

"The application of the principle in Darby involves an analysis of the evidence as against alleged co-conspirators to determine whether the different verdicts are explicable by different evidence, the different evidence being capable of sustaining a conviction against one in the light of the other's acquittal - - -	(emphasis mine)

See also R v Mok (1987) 27A Crim. R. 438 at p.442, concerning the need for a "practical, commonsense approach". It is essential in the present circumstances that the evidence to be relied on by the Crown be actually adduced.
Only then can it be seen whether there is "different evidence" of sufficient weight to render "explicable" a

different verdict in relation to the accused. can an application for a stay be considered.

Only then

(hl	Addendum - exercise of power to stay the trial for abuse of process, or under the statutory power

It is unnecessary, as the application for a stay cannot be presently considered, to decide whether there is an inherent power to stay the trial, assuming it is clear that the evidence was substantially the same, or whether• there is power to stay pursuant to s.21 of the Code.

I should say, however, that I consider that the situation here is very different from that which obtained in Connelly v DPP [1964] AC 1254, to which Mr Hore-Lacy referred.		There is clearly an inherent power in the Court to stay a criminal trial which is oppressive because it involves an abuse of the judicial process; see Barton v The Queen (1980) 147 CLR 75 at pp.96, 107 and 116.	The Court's process must be fairly used by both State and citizen.	The Court has power to see that this is done, in the interests of the due administration of justice and the maintenance of public confidence therein.	It is of course a most serious matter for a court to prevent a trial from taking place; several interests must be considered.

The basis of this application to stay is that for this trial to continue would be oppressive, because the evidence to be adduced by the Crown to establish the criminal agreement by the 3 participants will be identical (or weaker) than that adduced in the earlier trial of the co-conspirators which resulted in their acquittal.	Thus a verdict of guilty in this trial would be a verdict inconsistent with that verdict of acquittal.	Assuming this is established, is there power to stay?	I am not aware of any authority directly in point.

I note that in R v cwmbran Justices; exp. Pope• (1979) 143 JP 638 the position was as follows:-

"The applicant was charged before justices with driving a motor cycle with a blood/alcohol concentration above the prescribed limit, failing to provide a specimen of breath for a breath test, and riding a motor cycle without due care and attention.	With regard to the first charge he elected to go for trial in the crown Court where he was acquitted.	[He had contended that he had not been driving or riding the motorcycle at all, but had been pushing it].	The other two charges were adjourned sine die, and after a lapse of some months the prosecution had the summonses in respect of them restored to the justices' list.
The applicant moved for an order of prohibition directed to the justices in relation to the charge of driving without due care and attention on the ground that the [trial of that charge would be oppressive and unfair, and in that sense might amount to an abuse of process, because it involved the trial over again of the self-same issue which had been already dealt with by the jury]."

The Divisional Court noted that in light of D.P.P. v Humphrys [1977] A.C.1 it could not be contended that the

.,
e·

prosecution was estopped from producing evidence that the applicant had in fact been riding the motor cycle at the material time.	The Court directed that prohibition should go; Shaw J (with whom Lord Widgery CJ and Lloyd agreed) said at p.640:-

" - - - not because that last charge gives rise to the same issue as that which was canvassed before the jury at the Crown Court but because it would be a little, at least, unfair to require him to stand his trial before the justices upon what does involve the self-same issue, and because also it would not be entirely in the interests of public policy that one tribunal might be in a situation in which it feels itself driven to a decision directly in conflict with what was the finding.of a jury, who after all form the basis of our administration of common law justice, it is only because in that quite unusual situation it appears to me that this would be a proper case in which to accede to the application - - -."

The differences between that case and the present are readily apparent.	See also R v Intervision Ltd and Norris (1984] crim.L.R.350.

I incline to the view that there is a power to stay which should however only be exercised where the crown concedes that the evidence on the common element will not be materially distinct from that which led to the acquittal.
It is inappropriate, in the nature and pressures of a jury trial that at the conclusion of the evidence the trial judge should be asked to embark upon a consideration and comparison of two bodies of evidence, to determine whether a

·' ''

verdict of guilty would involve an inconsistency.	It is not without significance that Mr Hore-Lacy was unable to cite any case where such a stay had been sought.	What is involved is clearly a task which can much better be dealt with by an appellate court.

Order

As indicated earlier the application for a permanent stay of this trial pursuant to the inherent power or the statutory power is refused, at this stage.
•